Chief Executive, Department of Employment, Economic Development and Innovation v Little

[2011] QCAT 171

CITATION: Chief Executive, Department of Employment, Economic Development and Innovation v Little [2011] QCAT 171

PARTIES:	Chief Executive, Department of Employment, Economic Development and Innovation
v
Mr Terry Hubert Little

APPLICATION NUMBER:   GAR028-11

MATTER TYPE: Occupational regulation matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane

DECISION OF: Professor Adrian Ashman, Member

DELIVERED ON: 14 April 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Terry Hubert Little is reprimanded pursuant to section 529(1) of the Property Agents and Motor Dealers Act 2000.

CATCHWORDS:

Disciplinary proceedings – property agent – failure to exercise reasonable diligence – penalty – costs

Property Agents and Motor Dealers Act 2000, ss 496, 497

APPEARANCES and REPRESENTATION (if any):

No appearances, matter heard on the papers

REASONS FOR DECISION

1. The Chief Executive brought a disciplinary application to the Tribunal, alleging that Mr Little failed to exercise reasonable diligence in the conduct of a real estate practice.  It is alleged that he failed to fulfil a 2006 promotional obligation to complete the draw for a prize of $25,000.00, participants in the draw being owners of 50 properties sold and settled through Mr Little’s agency.

2. The Chief Executive asserts that the draw was never held and that the prize money was subsequently withdrawn, along with other monies from the agency’s general account, in August 2007 by a former co-director of the business, David Colston.

3. In his submission to the Tribunal Mr Little does not deny the particulars of the case as they are set out in the Chief Executive’s application.

4. Section 8(1) of the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001 provides that a real estate agent must exercise skill, care, and diligence in the conduct of the real estate practice.

5. Mr Little had at least six months to fulfil obligations arising out of the agency’s promotion but he failed to do so.  While his failure might have been remedied in due course, the delay in completing the promotion (and awarding the prize money) provided the opportunity for Mr Little’s co-director to withdraw that money from the general account and move it elsewhere.

6. I am satisfied that Mr Little did not act in a conscientious way to fulfil his obligations to the property owners who qualified for entry into the draw.

7. In his submission, Mr Little said that he was experiencing personal and financial difficulties at that time that demanded his attention.

8. Section 10 of the Property Agents and Motor Dealers Act 2000 sets out the objects of the Act. They include the protection of consumers, in their dealings with licensees and their employees, from undesirable practices.

9. I am satisfied that Mr Little’s failure to act compromised the trust placed in him by those who might have been enticed by the promotion to engage his agency to sell their properties.

[10] That failure means, as I am also satisfied, that Mr Little’s actions comprise grounds for disciplinary action pursuant to section 497 of the Property Agents and Motor Dealers Act 2000, and I find him guilty of a disciplinary charge. The Chief Executive seeks the imposition of a reprimand, a fine of $1,000.00, and an order that Mr Little pay the costs of, an incidental to, the proceeding. As this is a protective jurisdiction, a reprimand by the Tribunal is warranted, and given.

[11]  In regard to the fine, and costs, there are two mitigating circumstances in this case.  First, Mr Little admitted his shortcomings and did not seek to contest the matter.  Second, he is an undischarged bankrupt and employed on a commission only basis, which is at subsistence level.

[12]  The principal purpose of this jurisdiction is to protect the public, not to punish erring licencees[1].  In the present matter, it would seem to be a pointless and overly severe act to impose a further burden upon an individual who is already experiencing serious financial hardship.  Therefore, no fine is imposed.

[1]        Susan Hopper [2008] CCT PD 008-08.

[13] As to costs, section 102(3) (e) of the Queensland Civil and Administrative Tribunal Act 2009 requires the Tribunal to consider certain matters when deciding costs; one of these is the parties’ financial circumstances. In this case, I find no justification to impose that burden. Parties are to bear their own costs pursuant to section 100 of the QueenslandCivil and Administrative Tribunal Act 2009.