Carey and Real Estate And Business Agents Supervisory Board
[2008] WASAT 304
•23 DECEMBER 2008
CAREY and REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD [2008] WASAT 304
| Link to Appeal : | [2010] WASCA 109 |
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2008] WASAT 304 | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:120/2007 | 20 - 22 MAY 2008 19 AUGUST 2008 | |
| Coram: | JUDGE J CHANEY (DEPUTY PRESIDENT) MR A MACRI (SESSIONAL MEMBER) MR P DRUITT (SESSIONAL MEMBER) | 22/12/08 | |
| 27 | Judgment Part: | 1 of 1 | |
| Result: | Decision to refuse renewal of triennial certificate set aside | ||
| B | |||
| PDF Version |
| Parties: | NORMAN PHILLIP CAREY REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD |
Catchwords: | Professions Real estate agent Application for renewal of triennial certificate Licensee managing director of companies in large corporate group Collapse of corporate group Criticism of applicant by court and receivers of companies Whether licensee is fit and proper to hold licence Bona fide control of business |
Legislation: | Door to Door Trading Act 1987 (WA) Real Estate and Business Agents Act 1978 (WA), s 27(1), s 29, s 31(1), s 31(3), s 101, s 132 |
Case References: | Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (2008) WASCA 28 |
Orders | (1) the holder shall notify the Board not less than 21 days prior to commencing business as a real estate agent that he proposes to commence trading, the circumstances therefore and the name and legal structure under which he proposes to operate;,(2) that the holder advise the Board within seven days of being charged with any offence or having any legal proceedings (of whatsoever nature) instituted against him and the details of it;,(3) the holder advise the Board of any finding of misconduct or illegal conduct against him; and,(4) the holder advise the Board of any material adverse change to his financial circumstances including the making of any judgment against him and the details thereof that may impact on his capacity to meet his obligations under the Act. |
Summary | Mr Norman Carey sought a review of the decision of the Real Estate and Business Agents Supervisory Board to refuse to renew his triennial certificate. The triennial certificate is necessary to permit a person to act as a real estate agent.,Mr Carey was the managing director of Westpoint Corporation and was closely involved in the operation of companies in the Westpoint Group of companies. The Westpoint Group collapsed in 2005. In subsequent proceedings in the Federal Court Mr Carey's conduct was criticised by certain receivers and by a judge. The Board examined those criticisms and certain issues regarding the manner in which Mr Carey had carried out his dealings as the person in bona fide control of the real estate business of Westpoint Realty Pty Ltd. It concluded that Mr Carey was no longer fit and proper to hold a licence.,The Tribunal reached a different conclusion. It determined that in view of the fact that Mr Carey had held a licence for 30 years without any disciplinary findings against him, that the extensive investigations into the collapse of Westpoint Group had not resulted in any findings against him by a court or even any charges being laid, and the fact that the basis of the criticisms against him was for the most part, disputed, it could not be said that Mr Carey was no longer fit to hold a licence. The Tribunal reached that view notwithstanding its concern as to the frankness of some of Mr Carey's evidence before the Federal Court and the Tribunal. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : CAREY and REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD [2008] WASAT 304 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT)
- MR A MACRI (SESSIONAL MEMBER)
MR P DRUITT (SESSIONAL MEMBER)
- 19 AUGUST 2008
- Applicant
AND
REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD
Respondent
Catchwords:
Professions Real estate agent Application for renewal of triennial certificate Licensee managing director of companies in large corporate group Collapse of corporate group Criticism of applicant by court and receivers of companies Whether licensee is fit and proper to hold licence Bona fide control of business
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Legislation:
Door to Door Trading Act 1987 (WA)
Real Estate and Business Agents Act 1978 (WA), s 27(1), s 29, s 31(1), s 31(3), s 101, s 132
Result:
Decision to refuse renewal of triennial certificate set aside
Category: B
Representation:
Counsel:
Applicant : Mr M de Kerloy
Respondent : Mr P O'Neal
Solicitors:
Applicant : Mony De Kerloy
Respondent : Julia King
Case(s) referred to in decision(s):
Australian Securities and Investments Commission; In the matter of Richstar Enterprises Pty Ltd (ACN 099071968) v Carey (No 20) (2008) FCA 45
Jemielita v Medical Board of Western Australia (unreported, WASC, No 920584, 13 November 1992)
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Summary of Tribunal's decision
1 Mr Norman Carey sought a review of the decision of the Real Estate and Business Agents Supervisory Board to refuse to renew his triennial certificate. The triennial certificate is necessary to permit a person to act as a real estate agent.
2 Mr Carey was the managing director of Westpoint Corporation and was closely involved in the operation of companies in the Westpoint Group of companies. The Westpoint Group collapsed in 2005. In subsequent proceedings in the Federal Court Mr Carey's conduct was criticised by certain receivers and by a judge. The Board examined those criticisms and certain issues regarding the manner in which Mr Carey had carried out his dealings as the person in bona fide control of the real estate business of Westpoint Realty Pty Ltd. It concluded that Mr Carey was no longer fit and proper to hold a licence.
3 The Tribunal reached a different conclusion. It determined that in view of the fact that Mr Carey had held a licence for 30 years without any disciplinary findings against him, that the extensive investigations into the collapse of Westpoint Group had not resulted in any findings against him by a court or even any charges being laid, and the fact that the basis of the criticisms against him was for the most part, disputed, it could not be said that Mr Carey was no longer fit to hold a licence. The Tribunal reached that view notwithstanding its concern as to the frankness of some of Mr Carey's evidence before the Federal Court and the Tribunal.
The application
4 Norman Phillip Carey seeks a review of a decision of the Real Estate and Business Agents Supervisory Board (Board) made in June 2007 to refuse the renewal of Mr Carey’s triennial certificate. A triennial certificate confers on a licensed real estate agent the right to carry on business as an agent for a period of three years commencing on the date on which it is granted - s 31(1) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act). The Board (and the Tribunal on review) may refuse to renew the triennial certificate of a licensee who is a natural person if it is satisfied that the licensee no longer:
• is a person of good character and repute and fit and proper to hold a licence;
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- • has sufficient material and financial resources available to him to enable him to comply with the requirements of the REBA Act; and
• understands fully the duties and obligations imposed by the REBA Act on agents.
(REBA Act s 31(3) and s 27(1))
6 The Westpoint Group consisted of a group of 157 or more related corporate entities and trusts. Until 2006, the Westpoint Group was involved in numerous property developments predominantly in Western Australia, Victoria, New South Wales and Queensland. Mr Carey was the managing director of Westpoint Corporation and head of the property group within the Westpoint Group.
7 During 2004 and throughout 2005, the Australian Securities and Investments Commission (ASIC) undertook various investigations in relation to the Westpoint Group, and certain companies, referred to as the mezzanine companies which, according to Mr Carey, were not members of the Westpoint Group, but were involved in providing finance to the group. In late November 2005, ASIC applied to wind up two of the mezzanine companies. Shortly thereafter, a number of companies in the Westpoint Group became insolvent and receivers were appointed. In proceedings which followed in the Federal Court, suggestions of misconduct and breaches of duty by directors within the Westpoint Group were made in the context of interim applications and judgments.
8 Mr Carey was named as a defendant in proceedings in the Federal Court. On 20 April 2006, as a result of an application made by ASIC in the Federal Court proceedings, a number of orders were made against the eight defendants in that action, including Mr Carey and Westpoint Realty. The orders included asset preservation orders which appointed receivers and effectively froze Mr Carey's assets (subject to certain exemptions). The orders also required Mr Carey and several other defendants to provide detailed affidavits in respect of their assets and
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- liabilities, and ordered Mr Carey and three other defendants not to leave Australia or come within 100 metres of an Australian point of overseas departure and to surrender their passports. The asset preservation orders were extended from time to time, but were eventually allowed to lapse on 12 March 2007 when they were replaced by voluntary personal undertakings given by Mr Carey not to dissipate assets. Those undertakings themselves expired on 30 June 2008 and ASIC did not seek any renewal of the undertakings.
9 It is apparent that the collapse of the Westpoint Group led to the likely loss of hundreds of millions of dollars by a large number of investors in the group.
10 It was against that background that the Board came to deal with Mr Carey’s application for renewal of his triennial certificate. After a hearing, the Board concluded that it was not satisfied that Mr Carey is of good character, nor that he is a fit and proper person to hold a licence. The Board was unable to conclude that Mr Carey complies with the requirement to have sufficient material and financial resources available to him, nor was it satisfied that Mr Carey fully understands his duties and obligations as a licensed agent.
11 In support of its position at the hearing of the application for review, the Board relied upon a number of concerns as supporting the conclusion it had reached in rejecting the application for renewal of the triennial certificate. Some of those were abandoned shortly before hearing. It is convenient to identify and deal with each of those concerns, and the evidence and submissions relating to them, by reference to the requirements of s 27(1) of the REBA Act.
Fit and proper to hold a licence - s 27(1)(b)
12 Mr Carey has been considered fit and proper to hold a licence as a real estate agent since 1979. The Board took the view, however, that it was no longer satisfied as to that requirement by reason of a number of matters which have arisen as a result of the collapse of the Westpoint Group, and the proceedings which followed. Broadly speaking, the Board considers that Mr Carey's conduct in relation to the receivership of companies within the group, his alleged evasiveness if not dishonesty in relation to evidence given, both in the Federal Court and before the Tribunal in these proceedings, establish a lack of fitness to hold a licence under the Act. It is necessary to consider each of the matters of concern in this regard.
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Evidence of assets in the Federal Court
13 As part of the Federal Court proceedings, and in relation to the freezing orders, Mr Carey was required to file an affidavit setting out his asset position. He did so by affidavit dated 4 May 2006. In [9] of that affidavit, Mr Carey deposes that he had no bank accounts in his personal name, and did not exercise any control over any bank accounts of which he was aware.
14 Mr Carey was examined in relation to that assertion in proceedings before a Deputy Registrar of the Federal Court on 5 July 2006. In particular, he was asked about his connection with a bank account maintained with ING Bank Singapore on behalf of a company called Halter Limited (Halter). He was shown an account-opening authority for Halter which apparently bore his signature. He denied conducting any transactions on behalf of the company. He was also shown a shipping document from ING Bank to his West Perth premises. He denied any connection with Halter.
15 Before the Tribunal, Mr Carey was again cross-examined in relation to this issue. He acknowledged that he was one signatory to the bank account, and in that sense did have a connection with Halter. He said, however, that he understood the question as to his connection with Halter in the Federal Court proceedings to be a reference to control of the company, which he said he did not have.
16 Mr Carey agreed that he was now aware that Halter was in some way involved in a trust in the Channel Islands known as the Hilton Trust. The trustee of the Hilton Trust was a professional trustee company called Mercator Pty Ltd. According to Mr Carey, the trust was established in 1989 by an accountant, Mr Kennerly, who died in 2003. He said that Mr Kennerly had done a deal of accounting work for Mr Carey personally, and Mr Kennerly's firm had established Mr Carey's family trust. He said he did not recollect the setting up of a trust in the Channel Islands in 1990. He said that neither he nor his family were involved in the trust or the companies associated with it as beneficiaries, directors or shareholders. He said that he was unaware of the purpose of the trust 'even today'.
17 During 2003, certain correspondence was sent to Mr Carey at his home address concerning the account in the name of Halter at the ING Bank in Singapore. Apparently the bank account held a sum of US$1.45 million. Mr Carey said that he would have simply taken that correspondence to the Chief Financial Officer of Westpoint and suggested
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- that they would look into the situation when certain major projects had been completed.
18 In the Federal Court proceedings, Mr Carey was shown a letter he had signed in April 2005 to ING Bank authorising the transfer of $500,000 from the Halter account to the account of a company, which Mr Carey controlled personally, called Dosius Pty Ltd. He was unable in the Federal Court to explain the reason for that transfer of funds.
19 In the Federal Court proceedings, Mr Carey also denied any recollection of a discussion with a director of Mercator, to which reference was made in certain correspondence. He maintained that position in his evidence before the Tribunal.
20 Mr Carey was also vague about correspondence addressed to his home address from Mercator concerning the payment of certain fees related to the Channel Islands trust.
21 It is apparent that a total of $1 million was transferred to Dosius Pty Ltd from the Singapore bank account. According to Mr Carey, although he was not initially a beneficiary of the trust, there was a 'letter of wishes' issued in 1989 to the trustee concerning use of the funds. He said that in late 2006, 'out of the blue Mercator made me a beneficiary'. He said that he then instructed solicitors to wind the trust up and send the balance of funds, of approximately $150,000, to him. The letter of wishes was signed by Mr Carey, and requested the trustee to have regard to his wishes in exercising its powers under the trust, notwithstanding the absence of any legal obligation for it to do so. Before the Tribunal, Mr Carey acknowledged that it appeared that the letter bore his signature but denied any knowledge of signing the letter or any understanding of its consequences. He maintained his denial of any involvement in any dealings with the Channel Islands.
22 The Board invited the Tribunal to conclude that Mr Carey's answers to questions, both before the Deputy Registrar of the Federal Court, and before the Tribunal, in relation to the Channel Island trust, were evasive and uncooperative if not dishonest. The Board relied on that proposition as supporting a finding that Mr Carey is not a fit and proper person to hold a real estate licence.
23 Mr Carey is obviously an intelligent man, and obviously has considerable business experience. The vagueness of his evidence concerning the Channel Islands trust is troubling. His evidence was that neither he, nor companies in the Westpoint Group, had any other dealings with Channel Islands or trusts. A very substantial amount of money was
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- transferred from the trust to a private company controlled by Mr Carey. Correspondence in relation to the trust was directed to him at his home address, and correspondence concerning the trust for the bank account was signed by him. The level of ignorance claimed by Mr Carey as to the existence and operation of the trust and the companies associated with it is very difficult to accept.
24 Mr Carey defended his evidence on the basis that he wasn't a director, wasn't an officer of the companies concerned, and wasn't a beneficiary. His denial of any 'connection' with the Channel Islands was based on those facts.
25 It is not possible in the context of these proceedings to make any findings as to the truthfulness of Mr Carey's evidence. We do consider, however, that it is reasonable to conclude that Mr Carey's evidence to the Deputy Registrar in relation to the Channel Island trust was somewhat evasive and uncooperative and his evidence to the Tribunal on this point was unreliable.
Failure to cooperate with receivers
26 The Board contended that, in a number of respects, Mr Carey had failed to properly cooperate with the receivers of Westpoint Group companies in a way which demonstrated that he should not be considered fit and proper to hold a real estate agent's licence.
27 In the statement of issues, facts and contentions, a lack of cooperation was alleged in relation to providing access to computer files concerning a company called Redchime Pty Ltd. Those allegations were not pursued at the hearing, and require no further attention.
28 In a report to the Federal Court dated 24 November 2006, the receivers of four companies in the Westpoint Group, including Westpoint Realty reported a lack of cooperation with them. They said:
To date, we have experienced a situation that is substantially devoid of cooperation, often confrontational and displays a disregard for the Order and the authority of the receivers.
In our view, the failure and refusal of the Carey entities to cooperate with us and our staff has resulted in the Receiverships being unnecessarily difficult and cumbersome. It has hindered our ability to quickly and confidently authorise transactions and has caused us to be in a position where we are repeatedly requested to make decisions with no confidence that we are in full possession of the facts.
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- We remain concerned that there has been insufficient disclosure for us to accurately and completely report on the current asset and liability position of each of the Carey entities.
We set out above, as examples of his behaviour, the issues we have confronted with obtaining access to books and records and the deletion of computer data immediately prior to the image-taking process.
In addition to the matters outlined above, throughout the course of the Receiverships, we and our staff have been subjected to defamatory comments, threats of litigation, and allegations of wrongdoing and intemperate accusations which appear to have been designed to coerce us to adopt certain courses of action. We have at all times carried out our functions in accordance with the Orders and the objectives of our appointment. However, this conduct has unnecessarily diverted resources and has, on occasion, required further intervention of the Court. Specific examples are referred to in the body of this report in respect of individual entities.
The correspondence contained in our files confirms the above. We have elected not to repeat the detail contained in this correspondence in this report. This correspondence can be viewed by ASIC or the Court on request.
29 Complaints that Mr Carey had not fully disclosed all his assets were also made by the receivers in reports dated 28 June 2007 and 4 July 2007.
30 In cross-examination, Mr Carey rejected the proposition that he had been uncooperative. He asserted that the allegations of lack of cooperation had been refuted in affidavits put before the Federal Court and that his responses had been accepted by the Court. In re-examination, Mr Carey said that he had taken proper legal advice on the effect of the orders of the Federal Court because he realised the seriousness of the need to comply. He said that he met Mr McMaster, one of the receivers, on many occasions, as he did with ASIC. He said that, after receiving the report of 24 November 2006, he was disappointed by the assertion made concerning cooperation, and consulted his lawyers to write to Mr McMaster to enquire what information they were seeking. That enquiry led to a response from the receivers' solicitors, dated 22 March 2007, setting out the information sought by the receivers. Mr Carey's solicitors responded by letter emailed on 4 April 2007.
31 In his affidavit filed in the proceedings before the Board, Mr Carey blamed the collapse of Westpoint Group on ill-conceived and negligent advice given by lawyers in relation to the operation of the mezzanine companies, and ASIC's intervention which he described as 'unconscionable'. It is unsurprising that a level of tension existed between
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- Mr Carey and the receivers. Whether Mr Carey's resentment in relation to ASIC's action has any justification is not a matter on which we can form any view.
32 Nor can we make any reasoned findings as to whether the claims of lack of co-operation made by the receivers were fairly made. It is, however, apparent that, in response to the criticisms, Mr Carey took steps to clarify what information was sought by the receivers, and to provide that information through his solicitors. In those circumstances we do not consider that Mr Carey could be said to lack fitness to hold a real estate agent's licence on the basis of non-cooperation with the receivers.
33 A further criticism made of Mr Carey by counsel for the Board was his failure to advise the receivers of the existence of a guarantee. In their report dated 24 November 2006, the receivers reported that 'we have discovered information by chance that has proven to be directly relevant to the matters under investigation, including recently a claim by QBE Limited'. That statement relates to a guarantee in respect to a liability of another Westpoint Group company to QBE on a facility for $10 million. A guarantee was given by Westpoint Realty, Mr Carey, and 18 other guarantors. It is apparent that, in providing information as to the liabilities of Westpoint Realty, Mr Carey did not disclose to the receivers the existence of that guarantee.
34 Apparently, QBE made demand under the guarantee to Westpoint Realty, and sent that demand directly to Mr McMaster. That was the first time Mr McMaster became aware of the existence of the guarantee. It is presumably that fact which he refers to as discovering information 'by chance'.
35 Mr Carey was cross-examined about his failure to advise the receivers of the existence of the guarantee in the context of providing information to the receivers as to the assets and liabilities of Westpoint Realty. His explanation was that accepted accounting practice does not treat a guarantee, in respect of which there has been no call, as a liability or contingent liability for the purposes of the company's accounts. Accordingly, he saw no need to disclose the existence of the guarantee in the context of disclosing the liabilities of Westpoint Realty. The information he provided to Mr McMaster was provided pursuant to an order to disclose assets and liabilities, and he did not consider that disclosure of the existence of the guarantee was a requirement of the order.
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36 It may well be that Mr Carey's interpretation of the requirements of the order is correct. Even if it is not, we accept that Mr Carey held a view that the requirement to provide details of liabilities of the company did not extend to potential liabilities under a guarantee where the creditor had made no call on that guarantee. We do not consider that Mr Carey's failure to disclose the existence of the guarantee to the receivers of Westpoint Realty provides the basis to conclude that he is not fit to hold a real estate agent's licence.
37 The QBE guarantee was the subject of consideration in a different context in the proceedings before us. In an affidavit sworn on 10 May 2007 in relation to the proceedings before the Board which are the subject of this review, Mr Carey annexed a statement of his assets and liabilities. He included in that statement, as a 'contingent liability', the claim by QBE insurance regarding the guarantee, which contingent liability he estimated at $200,000. The reference in the statement of assets and liabilities contains a footnote which reads:
The claim by QBE Insurance is being defended, it is for $3,600,000 against 18 other guarantors and my contingent liability is based on the claim being successful and the liability being shared by the guarantors.
38 In cross-examination of Mr Carey, there was implicit criticism of the way that liability had been shown. The criticism was that some of the other guarantors had been wound up, and accordingly could not be expected to make a pro rata contribution to any ultimate liability.
39 Mr Carey said that a defence to the claim had been lodged to the court and that he believed his defence to the claim would be likely to succeed so that no liability would arise at all. Not all guarantors had been joined in the action, and Mr Carey said that he had not joined the other guarantors seeking contribution acting on his legal advice that he should not do so until it is known whether his defence is successful.
40 The thrust of the criticism of the statement of assets and liabilities attached to Mr Carey's affidavit of 10 May 2007 was that the estimate of the amount of the liability was inaccurate or misleading. In our view, the note to the accounts made clear the basis upon which the sum of $200,000, which was expressed as an estimate, had been arrived at. In a context where there may or may not be any ultimate liability, and if there is liability, then considerable uncertainty as to the ultimate proportion of the guaranteed amount that Mr Carey might have to bear, we would not consider that the way the 'contingent liability' was expressed, explained as it was, can be said to be misleading. We do not consider that the criticism made in this respect justifies the conclusion that Mr Carey is unfit to hold a real estate agent's licence.
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Discharge of responsibilities as person in bona fide control
41 As earlier noted, Mr Carey was, at all times prior to the appointment of administrators of Westpoint Realty, recorded by the Board as the person in bona fide control of the real estate business carried on by that company.
42 Section 132 of the REBA Act requires that, where a licensee of a business is a body corporate, the person in bona fide control of the business shall give substantial time and attention to the business.
43 Rule 6(2) of the Code of Conduct for agents and sales representatives prescribed by the Board pursuant to s 101 of the REBA Act (Code of Conduct) provides:
The person in bona fide control of the agency business carried on by a corporation must properly supervise the agency business carried on by the corporation and take reasonable steps to ensure that sales representatives and other employees of the agency business comply with the provisions of the Act, this Code of Conduct and other relevant statutes, rules and regulations where applicable to them.
44 Rule 6(5) of the Code of Conduct provides:
An agent who personally carries on an agency business, a person in bona fide control of the agency business carried on by a corporation and the person in bona fide control of the agency business carried on by a firm must –
(a) personally manage the agency business full-time;
(b) carry out the principal managerial duties of the agency business, and
(c) frequently attend at the offices at which the agency business is conducted.
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46 The Board relies upon several matters as demonstrating that Mr Carey did not exercise bona fide control in the sense that he did not personally manage the agency business of Westpoint Realty full-time, he did not carry out the principal managerial duties of the business, and he did not frequently attend the offices where Westpoint Realty's business was carried on.
47 The first matter relied upon by the Board is a simple proposition that the activities of the Westpoint Group were so extensive, and Mr Carey was so involved in activities of other entities within the Group, that it was virtually impossible for him to devote the time necessary to the management of Westpoint Realty in order to fulfil the obligations of a person in bona fide control. The Board relies upon evidence given by Mr Carey during his examination in the Federal Court. In giving that evidence, Mr Carey made a number of observations about his workload, particularly during 2004. Those observations included:
(i) that the financial systems in Westpoint Group were very sophisticated and were run by senior chartered accountants upon whom Mr Carey was reliant;
(ii) there were business units within the Group that had general managers and financial managers reporting to other people although Mr Carey was the overall managing director. The group had 350 employees in four states;
(iii) he was working 10 or 12 hours a day seven days a week running the Westpoint business;
(iv) that between February and May 2004 he was travelling every week to the Eastern States and back and was extremely busy; and
(v) that in respect to the group generally, he had nothing to do with accounting - there was a full-blown group financial control function, financial managers, chartered accountants doing that work. In relation to a particular entry in a particular ledger, he said 'I'm [sic] given 360 full-time workers and a thousand building workers and the fact that I was working on property projects, it's
- ludicrous to suggest that I was involved in the make-up of these accounts'.
48 The cross-examination of Mr Carey in the Federal Court was directed towards financial matters arising among various companies within the Westpoint Group. He was not questioned specifically in relation to the attention which he gave to the affairs of Westpoint Realty. What can be extracted from the passages of transcript to which our attention was drawn was that Mr Carey clearly expended considerable amount of time dealing with the affairs of other companies within the group, and projects being undertaken within the group, which must necessarily have detracted from his capacity to give to Westpoint Realty the attention expected of a person in bona fide control.
49 In his affidavit prepared for the purpose of the proceedings before the Board, Mr Carey described his role within the Westpoint Group and Westpoint Realty as follows:
Firstly, I was the group managing director in charge of the overall strategic direction;
Secondly, I was the head of the property business. In this role one of the major areas upon which I focussed was the initiation of new projects; and
Thirdly, I was the managing director of Realty. That role was a 'hands on' role which specifically required me to be involved in Realty's day to day activities, being principally marketing and sales of the projects and property management for projects developed by the Westpoint Group.
50 In evidence before this Tribunal, Mr Carey said that since the collapse of the Westpoint Group in 2006, he had become fully involved in the management of Westpoint Realty up until the time his triennial certificate was not renewed. He maintained, however, that prior to that time he properly fulfilled his duty as the person in bona fide control, and was very much involved in the day-to-day activities of Westpoint Realty. Mr Carey explained that Westpoint Realty had a 'confined' business in the sense that it only dealt with the sale and management of properties which had been developed by the Westpoint Group. It only represented people outside of the Westpoint Group where it was managing the letting of a property developed by the Westpoint Group and sold to the person on whose behalf it was then managed by Westpoint Realty. Accordingly, Mr Carey said that the business was highly systemised with complete reporting systems at all levels. Mr Carey said that 'management is about putting systems in place and managing through a complete systems approach'. He said that each property had a plan in place with a budget and
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- control systems operated 'daily, weekly, and monthly against those properties that the business managed'.
51 A second matter relied upon by the Board as demonstrating that Mr Carey did not exercise bona fide control concerned the commissioning of a compliance report by the legal firm Dibbs Abbott Stillman (the DAS report).
52 Mr Carey produced the DAS report as an annexure to his affidavit filed in the proceedings before the Board. He did so to demonstrate a proposition asserted in the affidavit that 'Westpoint Realty had a strict compliance culture'. He described the DAS report as 'an example of systematic compliance reporting'. The Board noted, however, that the DAS report recited that it had been prepared 'in accordance with instructions received from Mr Brian Letts of Westpoint Realty'. The Board observes that Mr Carey's name appears only a few times in the report.
53 Mr Carey asserted, in his evidence before the Tribunal, that he made the decision to obtain a compliance report, and he met with a solicitor at Dibbs Abbott Stillman and outlined what he wanted by way of a compliance report. Having provided that initial instruction, Mr Letts 'and his team of people' provided the information for the compliance audit.
54 Mr Carey was asked about a passage in the DAS report where there was reference to a file that was provided to the solicitors which contained certain outdated 'policies and procedures applicable to the control of both licensed and unlicensed personnel'. The report suggests that the information contained within that file was unlikely to have been communicated to any of the employees of Westpoint Realty. Mr Carey was not familiar with the particular document. The Board suggested, through its questions, that the failure to communicate the information to employees of the firm suggested an abrogation of Mr Carey's obligation to properly supervise the business of Westpoint Realty.
55 In our view, that conclusion cannot be fairly drawn from the report. The status of the file was not clear from the DAS report. Mr Carey maintained that the business had well-developed and well-defined processes which employees worked to. The fact that an outdated file came into the possession of the solicitors is of no particular significance.
56 Mr Carey was also cross-examined in relation to observations in the DAS report as to the procedure for the reconciling of Westpoint Realty's accounts on a monthly basis. The information was based upon what the
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- solicitors were told by Mr Chew, a certified practising accountant who was responsible for maintaining the accounts of Westpoint Realty. Mr Carey accepted that the information provided by Mr Chew was not accurate, in that, as a management letter from Westpoint Realty's trust account auditors revealed, on occasions, reconciliations of the trust accounts were not signed and dated in accordance with the requirements of the Board. Mr Carey accepted that those obligations were his responsibility and that he failed to comply with the requirements by signing reconciliations after the date on which they ought to have been signed.
57 The Board also relied on an organisational chart submitted to Dibbs Abbott Stillman. The chart, which is headed 'Strategic Asset Management - Westpoint Realty - Perth', shows Mr Letts as the general manager, and identifies a number of people involved in various commercial properties apparently managed by Westpoint Realty. The organisational chart makes no mention of Mr Carey, and the Board relied upon it as an indication that Mr Letts was, in fact, the person in control of the business of Westpoint Realty. We do not agree that that assumption can fairly be drawn from the document. It is apparent that the document relates to the organisational structure in relation to commercial leasing of certain centres. Clearly that was only part of the overall business of Westpoint Realty. The document relates only to a portion of the business, and assumptions as the overall structure of the business cannot be reasonably drawn.
58 It is clear that correspondence concerning the DAS report between Westpoint Realty and Dibbs Abbott Stillman was generally sent between Mr Letts or Mr Chew and Mr Stark of Dibbs Abbott Stillman. It is also apparent that Mr Letts dealt with Dibbs Abbott Stillman in relation to the content of a letter sent by Mr Carey to the Board in response to a query from the registrar of the Board.
59 The DAS report, and the correspondence in relation to it, demonstrates that day-to-day operations of Westpoint Realty were largely left to Mr Letts and Mr Chew. That finding is not, however, inconsistent with the proposition that Mr Carey maintained ultimate responsibility and oversight of the operations of Westpoint Realty.
60 A further matter relied upon by the Board as demonstrating Mr Carey's lack of bona fide control of the business related to certain GST transactions. In a report dated 24 November 2006, the receivers of Westpoint Realty reported that their investigations revealed that Westpoint Realty had raised invoices for sales and marketing services to North
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- Sydney Developments Pty Ltd, Ann Street Brisbane Pty Ltd and Scots Church Development Ltd. Journal entries were also created which recognised the transactions. The transactions were entered in December 2005 but backdated to 30 June 2005. The combined value of the journal entries is $6.293 million plus GST of $629,304. The receivers expressed concern that Westpoint Realty had not properly accounted for the GST liability, which would result in the financial position of Westpoint Realty not being accurately reflected in its asset affidavit. The receivers sought advice from Ernst and Young who advised that Westpoint Realty held an existing GST liability of $629,304. Mr Carey was provided with a copy of that advice.
61 The receivers reported that Mr Carey now sought to reverse the underlying transaction on the basis that the original allocation to Westpoint Realty was incorrect and that the services had really been performed by Westpoint Finance Pty Ltd (in liquidation) and not Westpoint Realty.
62 Mr Carey was cross-examined about those matters before us. He said that in 2005, the annual revenue of Westpoint Realty reached about $5 million, and in 2004 it was less than $4 million. When asked about the invoices and journal entries raised for $6.293 million, he said that the invoices were incorrectly raised. He was unable to explain how that occurred other than that it may have been that the group financial control personnel may have been responsible. He said that he 'had nothing to do with it'. That was so notwithstanding that the amount of the invoices themselves exceeded the total revenue of Westpoint Finance in the year in question. Mr Carey's professed lack of knowledge of such a significant series of transactions demonstrates that he did not personally manage the business on a full-time basis.
63 The matters relied upon by the Board support a conclusion that the daytoday operations of Westpoint Realty were substantially in the hands of Mr Letts and Mr Chew. To the extent that Mr Carey suggested that he personally managed the agency business fulltime as required by r 6(5) of the Code of Conduct, we do not accept that evidence. With Mr Carey's other obligations in relation to the operations of the Westpoint Group, in respect of which he was obviously heavily engaged personally, it would have been virtually impossible for him to 'manage the agency business full-time'. We accept, however, Mr Carey's evidence that he initiated that commissioning of the DAS report as a response to concern with compliance in all areas of the Westpoint Group's activities. We also accept that (aside
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- from his failure to meet all the requirements of bona fide control) he was concerned to put in place procedures and systems directed to ensuring that the operation in Westpoint Realty complied with its statutory and regulatory obligations. We also accept that he maintained a general supervisory role as managing director of Westpoint Realty.
Relationship between Westpoint Realty and other Westpoint entities
64 The Board identified what it considered certain irregularities in relation to the way that Westpoint Realty related to other Westpoint entities. The relationship led, the Board contended, to issues as to whether Westpoint Realty properly complied with the REBA Act.
65 According to the affidavit of Andrew Reginald Yeo, one of the joint liquidators of Westpoint Finance Pty Ltd, his investigations revealed that Westpoint Finance had the control of the overall marketing of the Westpoint Group properties and earned commission revenue by finding prospective purchasers. Having found a prospective purchaser, they would refer the purchaser to Westpoint Realty to sign up a purchase agreement. Westpoint Realty would then earn a commission on the sale of the property, most of which would then be paid to Westpoint Finance in consideration for the referral. After liquidation, a dispute arose about payment of those commissions.
66 Mr Carey did not accept Mr Yeo's description of the process. He said that Westpoint Finance, and after the liquidation of that company, a company called Redchime Pty Ltd (Redchime), provided services which led to the introduction of purchasers to Westpoint Realty. Westpoint Realty then reimbursed the costs of Westpoint Finance (and Redchime). He was, however, vague as to the existence or terms of any specific agreement in that regard.
67 After the initial hearing concluded, Mr Carey's solicitors wrote to the Tribunal and sought to adduce further evidence from Mr Carey on this issue. That was done on the basis that the depth and intensity of the questions in relation to that issue, which had not been fully canvassed in the statements of issues, facts and contention in advance of the hearing, had taken Mr Carey by surprise. The hearing was therefore reconvened, and Mr Carey gave further evidence on the matter.
68 Mr Carey denied that Westpoint Realty shared commissions with Westpoint Finance or any other party. He said that the Westpoint Group had developed, with professional help, a process to bring to market developed units,
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- initially and predominantly in the Eastern States and also in Western Australia. He said that the features of the process involved sourcing clients who were looking for investment opportunities, educating or providing information to those clients about those opportunities, arranging finance and ultimately marketing particular units and arranging the purchase of a unit by a client. Mr Carey said that:
this cross-fertilisation process where clients of one division of a company are introduced to other divisions is a normal process adopted for instance by major banks and insurance companies who promote a suite of products to the same clients. Compliance over a range of regulatory authorities becomes a key issue in implementing the process involved.
70 Mr Carey also said that there had been considerable debate within the group as to the appropriate method of remuneration of the respective parties in the process. He denied that Westpoint Finance, whose function it was to arrange finance for clients, received a commission on the sale of units.
71 The precise arrangements in relation to the financial relationship between Westpoint Realty and Wespoint Finance, and subsequently Westpoint Realty and Redchime, remain somewhat unclear. Considerable attention was given during the Tribunal's hearing to the correctness or otherwise of assertions made by Mr Yeo, Mr McMaster, and a Mr Oren Zohar, one of the joint and several receivers of Westpoint Corporation. In the context of these proceedings, it is not necessary for us to reach any concluded view as to the precise arrangements which existed between companies within the group. It is sufficient to conclude, as we do, that the activities of Westpoint Realty were inextricably linked to the activities of the group generally, and its finances were managed through the treasury operations of the group carried out by Westpoint Corporation. It is apparent that the marketing functions in relation to the sale of units developed by companies within the Westpoint Group did not fall within any well-defined responsibility of any particular company within the group. The evidence suggests to us that it is fair to conclude that there was something of overlapping responsibilities and a fuzziness in the defined roles of different participants in the process.
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72 The extent to which Westpoint Realty is inextricably part of the Westpoint Group is illustrated by the central treasury function. One of the concerns expressed by the Board was that sales representatives who procured sales for Westpoint Realty, and who had signed declarations that they were employed by Westpoint Realty, were in fact paid by Westpoint Corporation. The Board's position was that those people were, in truth, employees of Westpoint Corporation, and not of Westpoint Realty, and to the extent that they carried out real estate transactions as employees of Westpoint Corporation, the requirements of the REBA Act were not being met.
73 Mr Carey maintained that the sales representatives were, in fact, employees of Westpoint Realty, and the fact that they received remuneration through the central treasury function of the group did not alter that position. No attempt was made, in the context of the proceedings before the Tribunal, to examine in detail the precise financial arrangements between the companies in respect of remuneration of sales representatives or other staff. The inference from Mr Carey's evidence was that while income earned by Westpoint Realty, and expenses in relation to it, all passed through the central treasury operations of the group, that income and expenditure would be accounted for separately in relation to the operations of Westpoint Realty. We accept that the mere fact that arrangements for payment of employees were made through a third party, namely Westpoint Corporation, does not necessarily mean that the employees were employed by Westpoint Corporation.
74 What is, in our view, clear on the evidence is that the structure of the Westpoint Group was heavily influenced by regulatory compliance requirements. The advice produced by Mr Carey in relation to the marketing system for real estate transactions, and the DAS report, support Mr Carey's evidence that there was an awareness within the group of the need to meet regulatory obligations. Where, as here, there was an endeavour to provide a 'suite of products to the same clients' (to use Mr Carey's words) it is almost inevitable that different entities will be involved at different stages of the process from initial approaches to the public to the ultimate completion of a sale and management of the investment. Whether the division of responsibilities and the financial arrangements in place within the Westpoint Group successfully met the regulatory requirements in relation to the REBA Act is a relatively complex question. We do not consider that we can determine that question on the basis of assertions in affidavits in other proceedings which are untested before us except to the extent of Mr Carey's cross-examination. That cross-examination revealed that there is a dispute as to the correctness of at least some of those assertions. What is of significance, to us, however,
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- is that none of the matters raised in the Federal Court appear to have resulted in any findings against Mr Carey by any court in relation to any of the alleged irregularities. In particular, no specific complaint has been made against Mr Carey in relation to any breaches of the REBA Act or the Code of Conduct, accordingly no findings have been made against him in that respect.
75 The Board did identify a conviction of Westpoint Corporation on 23 January 2006 for six breaches of the Door to Door Trading Act 1987 (WA) which resulted in fines totalling $1,200 being imposed on that company. It is apparent from a media statement issued by the Department of Consumer and Employment Protection (DOCEP) that other charges had been laid against Mr Carey, Westpoint Finance, and one Yohannes Adinow, but those charges were discontinued. The convictions entered against the Westpoint Corporation, to which the company pleaded guilty, appear to relate to a failure to advise someone approached in relation to Westpoint investments of their rights under the Door to Door Trading Act 1987 (WA).
76 At the hearing before the Board, Mr Carey acknowledged that he had incorrectly completed his application for renewal of his triennial certificate by answering 'no' the question 'Are you now, or have you been a director, secretary, executive officer or manager of a company that has been the subject of a conviction?' He explained that he had been informed by his lawyers that agreement had been reached with DOCEP in relation to the charges whereby one of the companies was to be fined $1,000. He said that it was his understanding that the company which would be fined was Westpoint Finance, of which he was not a director at the time. He thought that was the appropriate company to plead guilty because it was the company involved in the process of marketing to the public, not Westpoint Corporation which was simply a central service provider to other companies within the group. As Mr Carey was not a director of Westpoint Finance at that time, he had answered no to the question not appreciating that Westpoint Corporation had in fact been the company which had pleaded guilty.
77 We have no reason not to accept Mr Carey's explanation of that error, and we do not consider that that issue leads to a conclusion that Mr Carey is not fit and proper to hold a real estate agent's licence.
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Mr Carey's actions as a controller of Silkchime Pty Ltd (Silkchime)
78 The Board observed that in a decision Australian Securities and Investments Commission; In the matter ofRichstar Enterprises Pty Ltd (ACN 099071968) v Carey (No 20) (2008) FCA 45, French J made an observation concerning a transaction proposed by Silkchime Pty Ltd, a company controlled by Mr Carey, and Mr Carey's sister, Karen Carey, who controlled Richstar Enterprises Pty Ltd. The proceedings apparently involved an application by Mr McMaster for directions from the court in relation to the proposed transaction. In the judgment, French J commented on a notice, issued by Mr Carey, threatening termination of the proposed agreement. He described that notice as a 'piece of cosmetic nonsense'.
79 Mr Carey did not, in his evidence before us, accept that that comment was a valid criticism.
80 French J also made an observation that he did not consider the proposed arrangement to be in the best interests of the preservation of Silkchime's assets or the interests of those who may have claims against it.
81 Whilst Mr Carey was asked some questions in relation to this issue during the course of the hearing before the Tribunal, we are not in a position to analyse and investigate the proposed agreement. The proceedings obviously took part in the context of constant, ongoing, and relatively complex litigation following the collapse of the Westpoint Group. To the extent that French J was impliedly critical of Mr Carey in the comments to which the Board has drawn our attention, we do not consider that that criticism can fairly be used to support a conclusion that Mr Carey is not a fit and proper person to hold a real estate agent's licence. Without a full investigation and understanding of the context in which the remarks were made, to elevate the implied criticism to a basis for a conclusion of unfitness is simply not open.
Sufficient material and financial resources – s 27(1)(c)
82 At the time of the Board's consideration of Mr Carey's application, he was the subject of undertakings not to dissipate his assets given to replace the asset preservation orders originally made in the Federal Court. We have earlier observed, those undertakings expired on 30 June 2008 and have not been renewed.
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83 We have earlier referred to Mr Carey's affidavit of 10 May 2007 filed in the proceedings before the Board, and the statement of assets and liabilities attached to that affidavit. The Board initially relied upon a contention that the significant increase in assets shown in that affidavit, compared to an earlier affidavit filed in the Federal Court proceedings, was unexplained and suggested that Mr Carey had tailored his evidence in each jurisdiction to suit the purposes of the proceedings in that jurisdiction. However, that contention was abandoned by the Board in the course of the hearing before us, on the basis that it was satisfied that Mr Carey had adequately explained how it came to be that his asset position had improved since the original affidavit in the Federal Court. That issue therefore falls away.
84 It is the case that Mr Carey is being pursued in proceedings on the QBE guarantee issue, and in proceedings in the Federal Court brought by the liquidators of Ann Street Mezzanine Pty Ltd. Since the hearing was complete, we have been provided by the solicitors for Mr Carey with a copy of Mr Carey's cross-claim in those proceedings. Whether or not Mr Carey ultimately has a liability which would render him unable to fulfil the requirements of s 27(1)(c) of the REBA Act is a matter which may not be determined for some years. In the meantime, we do not consider that the fact that he is being sued in respect of liabilities which he denies is a basis to conclude that he does not any longer meet the requirements of s 27(1)(c) of the REBA Act. On the basis of the materials filed, we do not conclude that Mr Carey no longer has sufficient material and financial resources available to him to enable him to comply with the requirements of the REBA Act.
Understanding the duties and obligations imposed by the REBA Act – s 27(1)(d)
85 The Board's case that Mr Carey did not meet this requirement of the Act was essentially based on the proposition that the matters discussed in the context of Mr Carey's fitness to hold a licence, which in part involve allegations of failures to comply with the Act or Code of Conduct, demonstrate that he does not understand the obligations of the Act.
86 We have already made observations as to the extent to which regulatory compliance was something of which the Westpoint Group generally appears to have been highly conscious. Having seen Mr Carey cross-examined at very considerable length before us, we are satisfied that he has a firm understanding of the requirements of the Act and the Code of Conduct. The focus of the Board's criticisms of Mr Carey were, in substance, not that he did not
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- understand the obligations of the Act, but rather he did not properly observe those obligations, thus rendering him not fit and proper to hold a licence. The question of renewal of Mr Carey's practice certificate turns on whether he continues to meet the obligations of s 27(1)(b), rather than s 27(1)(d) of the REBA Act.
Conditions on triennial certificate
87 In accordance with a common practice within the Tribunal, the Board provided, on a without prejudice basis, advice as to the conditions which it would contend should be imposed in the event that the applicant is successful in these proceedings. The conditions it suggested were:
(1) The holder shall notify the Board not less than 21 days prior to commencing business; and
(2) The holder shall notify the Board within seven days of being charged with any offence or having any legal proceedings (of whatsoever nature) instituted against the holder.
88 Mr Carey volunteered to accept a condition on his triennial certificate that he advise the Board of when he proposes to commence trading as a real estate business and the circumstances thereof including under what name and legal structure and when he does so of the audit arrangements he proposes for the trust account. That condition appears to be a slightly more onerous version of the condition 1 suggested by the Board.
89 In addition, Mr Carey indicated that he was prepared to give the following undertakings to the Board and to the Tribunal, namely:
(a) that he advise the Board of any new proceeding (whether civil or otherwise) being brought against him and the details of it;
(b) that he advises the Board of any finding of misconduct or illegal conduct against him; and
(c) he advises the Board of any material adverse change to his financial circumstances including the making of any judgment against him and the details thereof that may impact on his capacity to meet his obligations under the Act.
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Conclusions as to fit and proper
90 The Board, and in its place the Tribunal, is faced with a difficult issue in circumstances like those surrounding the collapse of the Westpoint Group. The difficulty inevitably arises because the financial collapse of large corporate groups inevitably results in substantial losses to members of the public, either as shareholders or, as in this case, as investors. Often, major corporate collapses are associated with improper, and sometimes illegal, conduct on the part of those in control of the corporation. Where those who control a corporation hold some form of regulatory licence, it is natural to review whether it is appropriate that that licence continue to be held. The difficulty for the regulator arises where there may be concerns about the manner in which a relevant business is being conducted, but it is too early to make findings as to whether or not inappropriate conduct has occurred.
91 That natural concern arises in this case. There are additional reasons for concern in this case specifically. We have expressed concern in relation to the frankness of the evidence given concerning the Channel Island trust and Halter. We have rejected Mr Carey's evidence that he personally managed the agency business full-time, as required by the Code of Conduct, albeit that he did exercise a general supervisory role. A consequence of not providing full-time services to the company was that the formalities in relation to the monthly reconciliation of the monthly trust account were not always met. We also have a concern as to the lack of clarity in the definition of roles and responsibilities of Westpoint Realty exercising its functions under the REBA Act, as distinct from the roles and operation of other companies within the Westpoint Group.
92 Against those concerns, there are several important factors. The first is that Mr Carey has held a real estate licence for some 30 years without any disciplinary issues having arisen. The second is that, despite very exhaustive investigations going back as far as 2003, and considerable litigation concerning the receiverships and liquidations of companies within the Westpoint Group, there have been no final determinations against Mr Carey of any breaches of legislation or other illegal conduct. Allegations about nondisclosure of assets, or failure to cooperate with receivers or liquidators have been disputed and have not become the subject of any findings against Mr Carey. The initial preservation orders, or the undertakings which replaced them, have expired and no longer apply. Notwithstanding that it is now several years since investigations were commenced, the only proceedings against Mr Carey concern certain civil claims. Those claims are being defended.
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93 There have, of course, been no suggestions of any irregularity in the trust accounts maintained by Westpoint Realty, and while the company's trust account auditors have made certain suggestions in relation to management issues, the company's audit certificates were unqualified. No complaints have been made by any member of the public about the operations of Westpoint Realty.
94 In order to decline to renew Mr Carey's triennial certificate, the Board, and in its place the Tribunal, must be satisfied that Mr Carey is no longer a person of good character and repute, or is no longer a fit and proper person to hold a licence. The effect of declining to renew the triennial certificate is to deprive Mr Carey of his entitlement to make a living as a real estate agent. Refusal to renew the triennial certificate has the same effect as suspending or disqualifying Mr Carey's licence. Where disciplinary proceedings are commenced against a licence-holder, suspension or cancellation of a licence and triennial certificate is reserved for the more serious cases where proper cause exists for disciplinary action. In the context of imposing disciplinary penalties, it is necessary for a Tribunal to bear in mind the right of every person to earn their living in whatever way they choose, unless that right is taken away by law - Jemielita v Medical Board of Western Australia (unreported, WASC, No 920584, 13 November 1992) at 146 - 147. The object of imposing disciplinary penalties is the protection of the public.
95 None of the conclusions we have reached in these proceedings would, in our view, provide a basis to cancel Mr Carey's licence and any triennial certificate in respect of it. Despite the concerns which we have expressed, we do not consider that it can be fairly determined, on the basis of the materials before us, that Mr Carey is not fit and proper to hold a real estate agent's licence. It may be that, as a result of what we assume are ongoing investigations into the Westpoint Group (although the extent of ongoing investigations is unclear) that action might be taken against Mr Carey in future. Conditions which require him to report any such action are appropriate. However, until such time as there are adverse findings made against Mr Carey in proceedings which have been already commenced or specific allegations of serious conduct are made against him, all of which may never occur, there is no basis to decline the renewal of Mr Carey's triennial certificate. Accordingly, the decision of the Board should be set aside, and instead there should be an order that Mr Carey be issued with a triennial certificate for a period of three years from the date
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- on which it is issued subject to the following conditions:
(1) the holder shall notify the Board not less than 21 days prior to commencing business as a real estate agent that he proposes to commence trading, the circumstances thereof and the name and legal structure under which he proposes to operate;
(2) that the holder advise the Board within seven days of being charged with any offence or having any legal proceedings (of whatsoever nature) instituted against him and the details of it;
(3) the holder advise the Board of any finding of misconduct or illegal conduct against him; and
(4) the holder advise the Board of any material adverse change to his financial circumstances including the making of any judgment against him and the details thereof that may impact on his capacity to meet his obligations under the Act.
I certify that this and the preceding [95] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J CHANEY, DEPUTY PRESIDENT
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