Chief Executive Department of Justice and Attorney-General v Brisbane City Student Accomodation Pty Ltd

[2012] QCAT 49

CITATION: Chief Executive Department of Justice and Attorney-General v Brisbane City Student Accomodation Pty Ltd and Ors [2012] QCAT 49

PARTIES:	Chief Executive Department of Justice and Attorney-General
v
Brisbane City Student Accomodation Pty Ltd (First Respondent) Mr Richard Arbon (Second Respondent) Mr Danny Kevin Little (Third Respondent) Mr John Fraiser Shaw (Fourth Respondent)

APPLICATION NUMBER:   OCR220-11

MATTER TYPE: Occupational regulation matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Sandra G Deane, Member

DELIVERED ON: 9 February 2012

DELIVERED AT: Brisbane

ORDERS MADE:    

1.    The First, Second, Third and Fourth Respondents are reprimanded.

2.    The First Respondent pay the Chief Executive a fine, in the sum of $45,000, by no later than 5.00pm 22 February 2012.

3. The First Respondent pay compensation under s 529 of the Property Agents and Motors Dealers Act 2000, by repaying excess commission as identified in the two over charge columns set out in Exhibit OFT27, excluding those persons named therein with whom the First Respondent has settled any such claims, by no later than 8 May 2012.

CATCHWORDS:

PROPERTY AGENT AND MOTOR DEALER ACT 2000 – Disciplinary proceedings – disciplinary grounds and particulars admitted – contraventions inadvertent

Property Agent and Motor Dealer Act 2000, ss 10, 469, 529

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The First Respondent carried on the business of letting accommodation and is the holder of a real estate agent’s licence.

1. The Second and Third Respondents were executive officers of the First Respondent and each the holder of a real estate agent’s licence.

1. The Fourth Respondent was an executive officer of the First Respondent and the holder of a resident letting agent’s licence and holder of a real estate salesperson’s registration.

1. The Chief Executive applied to the Tribunal to conduct proceedings to determine whether a disciplinary ground is established in respect of each of the Respondents.

1. After the application was filed in the Tribunal the matter proceeded to a compulsory conference.[1]

   [1]Division 2 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).

1. Having commenced the compulsory conference the parties have agreed to waive their rights pursuant to section 73 of the QCAT Act to object to me determining the matter on the papers.

1. The parties provided to the Tribunal an agreed statement of facts and agreed submission on penalty.

1. The Respondents admitted the disciplinary grounds and the particulars contained in the application on the basis that the contraventions of the Property Agents and Motor Dealers Act 2000 (the Act) were inadvertent and not the result of any deliberate or dishonest behaviour.

1. The grounds are that the licensee:

   a)   has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way.[2]

   b)   has contravened the Act.[3]

   c) is an executive officer of a corporation that the Tribunal finds guilty of a disciplinary charge under section 529 of the Act.[4]

   [2]        Section 496(g)(iii) of the Act.

   [3]        Section 496(1)(b)(i) of the Act.

   [4]        Section 496(g)(vi) of the Act.

1. The particulars include a schedule setting out overcharged commission.[5]  Each overcharged amount is of relatively small value.  However there are quite a number of instances of such an overcharge.

   [5]        Affidavit of Sharon Rowe, Annexure B, exhibit OFT27.

1. The purpose of disciplinary proceedings is to protect the public rather than to punish wrongdoing.

1. The Respondents having admitted the disciplinary grounds it is necessary to consider an appropriate penalty.

1. It is relevant that once the contraventions were drawn to the Respondents’ attention they took steps to cease the contraventions and have co-operated with the investigation process and admitted the contraventions at an early time.

1. The objects of the Act include the regulation of letting agents and real estate agents and the protection of consumers.[6]  Accordingly having regard to the agreed facts and circumstances it is appropriate that persons who have suffered loss and damage because of their contraventions be paid compensation, for a fine to be imposed and for the Respondents to be reprimanded.  Given the circumstances and number of instances of overcharging a substantial fine is warranted.

   [6]        Section 10 of the Act.

Orders

1. The First, Second, Third and Fourth Respondents are reprimanded.

1. The First Respondent pay the Chief Executive a fine, in the sum of $45,000, by no later than 5.00pm 22 February 2012.

1. The First Respondent pay compensation under section 529 of the Property Agents and Motor Dealers Act 2000, by repaying excess commission as identified in the two over charge columns set out in Exhibit OFT27, excluding those persons named therein with whom the First Respondent has settled any such claims, by no later than 8 May 2012.