Berceanu v Buttriss - [2004] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:

Berceanu v Buttriss & Anor [2004] QDC 020

PARTIES:

NIKOLAUS PETER BERCEANU

Complainant/Respondent

v

PHILLIP KINGSLEY BUTTRISS

Defendant/Appellant

NIKOLAUS PETER BERCEANU

Complainant/Respondent

v

QUANTUM DIRECT PTY LTD

Defendant/Appellant

FILE NO/S:

Appeal 9/2002; 9A/2002; 9B/2002
Magistrates Court 00084826/02 (3); 00084870/02 (1); 00084891/02 (3)

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Hervey Bay

DELIVERED ON:

13 February 2004

DELIVERED AT:

Brisbane

HEARING DATE:

18 July 2003

JUDGE:

McGill DCJ

ORDER:

Appeals allowed.

In appeal 9, conviction quashed, complaint dismissed.

In appeal 9A, order for compensation set aside; recording of conviction set aside; fine confirmed.

In appeal 9B, fine set aside; recording of conviction confirmed.

CATCHWORDS:

PRINCIPAL AND AGENT – Statutory Provisions relating to agents – real estate agent – acting without licence – whether penalty excessive – whether appropriate to order compensation.

CRIMINAL LAW – Compensation – unlicensed real estate agent – whether appropriate to order a refund of commission.

CRIMINAL LAW – Sentence – recording a conviction – whether discretion miscarried.

COUNSEL:

S W Zillman for the appellants
A Ross (solicitor) for the respondent

SOLICITORS:

McDuff and Daniel for the appellants
Crown Solicitor for the respondent

On 12 June 2002 three complaints alleging summary offences under the Property Agents and Motor Dealers Act 2000 (“the Act”)[1] came before the Magistrates Court at Hervey Bay. Mr Buttriss was charged with acting as a real estate agent when he was not the holder of a real estate licence,[2] and that he “being a director of a corporation Quantum Direct Pty Ltd that carried on business as a real estate agent and not being the holder of a real estate agent’s licence did act as a real estate agent.” In addition that company was charged on a separate complaint that it did act as a real estate agent when it was not the holder of a real estate licence. Particulars were given, which included in each case that between 1 July 2001 and 4 January 2002 seven particular properties “were sold by Phillip Kingsley Buttriss of Quantum Direct Pty Ltd.”
[1]For this judgment I am applying the Act in Reprint 1, as at 13 July 2001.
[2]Said in the file to be an offence under s 160(1) of the Act, but the wording of the complaint follows the terms of s 160(2).

The defendants appeared and pleaded guilty to each complaint. On each of the complaints against Mr Buttriss, he was convicted, the conviction was recorded, and he was fined $2,500 and ordered to pay $59 costs of court, in default five months imprisonment and allowed 12 months to pay. The company was convicted, the conviction was recorded, and the company was fined $7,500 and allowed 12 months to pay. In addition, in respect of the first of the charges against Mr Buttriss, he was ordered to pay $36,433.75 as compensation on behalf of the persons outlined in the particulars of the complaint, in default of payment six months imprisonment. He was allowed nine months to pay compensation.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Berceanu v Buttriss

Details

AGLC: Berceanu v Buttriss [2004] QDC 20
Case: [2004] QDC 20
Decision Date: 13 February 2004

CaseChat Overview and Summary

In the matter of Berceanu v Buttriss, the court was tasked with considering several issues arising from the conviction and sentencing of an unlicensed real estate agent. The respondent, Buttriss, had been convicted for acting as a real estate agent without holding the requisite licence. The legal issues before the court included whether the penalties imposed were excessive, whether compensation should be ordered, and if the conviction should be recorded. The appellant, Berceanu, challenged both the severity of the penalties and the decision to record the conviction.

The court examined the statutory framework governing real estate agents and found that while the appellant had indeed acted without a licence, the penalties imposed were not considered excessive. The court further deliberated on the appropriateness of ordering compensation for the commission paid to the appellant. It was determined that while the appellant had provided some services, the payment of commission to an unlicensed agent was not a legitimate expense for the complainant. Consequently, the order for compensation was deemed inappropriate. Additionally, the court considered the recording of the conviction and concluded that while the conviction itself was appropriate, the recording of it without proper justification constituted a misapplication of discretion.

The appeals were allowed with specific outcomes for each. In appeal 9, the conviction was quashed, and the complaint dismissed. In appeal 9A, the order for compensation was set aside, the recording of the conviction was set aside, but the fine was confirmed. In appeal 9B, the fine was set aside, but the recording of the conviction was confirmed. This nuanced approach reflects the court's balanced consideration of the statutory requirements and the specific circumstances of the case.

Orders

Orders of the court

Appeals allowed.

In appeal 9, conviction quashed, complaint dismissed.

In appeal 9A, order for compensation set aside; recording of conviction set aside; fine confirmed.

In appeal 9B, fine set aside; recording of conviction confirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Berceanu v Buttriss & Anor [2004] QDC 020
PARTIES:	NIKOLAUS PETER BERCEANU Complainant/Respondent v PHILLIP KINGSLEY BUTTRISS Defendant/Appellant NIKOLAUS PETER BERCEANU Complainant/Respondent v QUANTUM DIRECT PTY LTD Defendant/Appellant
FILE NO/S:	Appeal 9/2002; 9A/2002; 9B/2002 Magistrates Court 00084826/02 (3); 00084870/02 (1); 00084891/02 (3)
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Hervey Bay
DELIVERED ON:	13 February 2004
DELIVERED AT:	Brisbane
HEARING DATE:	18 July 2003
JUDGE:	McGill DCJ
ORDER:	Appeals allowed. In appeal 9, conviction quashed, complaint dismissed. In appeal 9A, order for compensation set aside; recording of conviction set aside; fine confirmed. In appeal 9B, fine set aside; recording of conviction confirmed.
CATCHWORDS:	PRINCIPAL AND AGENT – Statutory Provisions relating to agents – real estate agent – acting without licence – whether penalty excessive – whether appropriate to order compensation. CRIMINAL LAW – Compensation – unlicensed real estate agent – whether appropriate to order a refund of commission. CRIMINAL LAW – Sentence – recording a conviction – whether discretion miscarried.
COUNSEL:	S W Zillman for the appellants A Ross (solicitor) for the respondent
SOLICITORS:	McDuff and Daniel for the appellants Crown Solicitor for the respondent