Chief Executive, Department of Justice and Attorney-General v Penney-Filippini
[2016] QCAT 253
•19 July 2016
| CITATION: | Chief Executive, Department of Justice and Attorney-General v Penney–Filippini [2016] QCAT 253 |
| PARTIES: | Chief Executive, Department of Justice and Attorney-General (Applicant) |
| v | |
| Sarah Louise Penney–Filippini (Respondent) |
| APPLICATION NUMBER: | OCR237-14 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 1, 2, 3 and 4 February 2016 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Guthrie |
| DELIVERED ON: | 19 July 2016 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | IT IS THE DECISION OF THE TRIBUNAL THAT: 1. Grounds exist under s 497 of the Property Agents and Motor Dealers Act 2000 (Qld) for taking disciplinary action against Ms Penney-Filippini pursuant to s 496(1)(b)(i) and s 496(1)(g)(iii). THE TRIBUNAL DIRECTS THAT: 1. The Chief Executive, Department of Justice and Attorney-General file in the Tribunal two (2) copies and give to Sarah Louise Penney-Filippini one (1) copy of any written submission the Chief Executive wishes to make in relation to the orders the Tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00 pm on 16 August 2016. 2. Sarah Louise Penney-Filippini file in the Tribunal two (2) copies and give to the Chief Executive, Department of Justice and Attorney-General one (1) copy of any written submission she wishes to make in relation to the orders the Tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00pm on 13 September 2016. 3. The proceeding is listed for a half-day oral hearing on a date to be advised for the tribunal to consider the orders it may make pursuant to s 529 PAMDA or any other relevant legislation. |
| CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION – Disciplinary proceedings - Real estate agent – whether grounds for disciplinary action established under the Property Agents and Motor Dealers Act 2000 (Qld) – whether licensee breached the Act – whether licensee has been incompetent or acted in an unprofessional way – whether compliance with the audit requirements - whether real estate agent employed as a real estate salesperson an unlicensed person – whether actions were that of a real estate salesperson – meaning of ‘use the services of’ – where attendance of an unlicensed person at open homes – where interaction between unlicensed person and prospective purchasers Property Agents and Motor Dealers Act 2000 (Qld) ss 10, 93, 128, 160(4), 161, 164, 392, 402, 407, 496, 529, Chapter 12 Part 1, Schedule 2 Briginshaw vBriginshaw (1938) 60 CLR 336 |
APPEARANCES:
| APPLICANT: | Chief Executive, Department of Justice and Attorney-General |
| RESPONDENT: | Sarah Louise Penney-Filippini |
REPRESENTATIVES:
| APPLICANT: | Mr Robert Vize, in-house Counsel |
| RESPONDENT: | Mr M Martin QC, instructed by Mills Oakley |
REASONS FOR DECISION
Background
These proceedings were commenced by the Chief Executive under the provisions of the Property Agents and Motor Dealers Act 2000 (Qld) (PAMDA) which was in force at all relevant times until 1 December 2014. It is common ground that I must apply the provisions of PAMDA in determining the proceedings. Also relevant is the Property Agents and Motor Dealers Regulation 2001 (the Regulation).
Ms Heather Filippini is a former licensed real estate principal and was the proprietor of ‘Heather Filippini Island Realty’. Ms Filippini and the Chief Executive have a shared, lengthy legal history. Ms Filippini’s daughter, Ms Sarah Penney-Filippini, the respondent in these proceedings, has also been involved in other proceedings commenced by the Chief Executive against her and has given evidence in proceedings concerning her mother. The various proceedings are matters of public record.
Ms Penney-Filippini holds a real estate principal licence. She was first issued a property agents and motor dealers (real estate) licence from 7 February 2007.[1] She took over her mother’s business following a decision of the Commercial and Consumer Tribunal (CCT) to cancel her mother’s licence and disqualify her from holding a licence or registration under PAMDA for a period of four years.[2]
[1]Exhibit 4.
[2]The Chief Executive, DTFTWID v Filippini, H.I. t/as Heather Filippini Island Real Estate [2006] QCCTPAMD 41; PAMDA as in force at that time.
Ms Penney-Filippini, continued to operate the business under the name ‘Heather Filippini Island Realty’ until recently. Ms Penney-Filippini told the Tribunal that she is in the process of removing all references to her mother’s name from the business. In these reasons, I will refer to the business as ‘Island Realty’.
On 29 October 2009, the CCT permanently disqualified Ms Filippini from holding a licence under PAMDA.[3] That proceeding related to the conduct of both Ms Filippini and Ms Penney-Filippini. Ms Filippini made admissions about acting as a real estate agent, despite her disqualification, including her involvement in particular sales, the negotiation process and her attendance at ‘open house’ days. Ms Penney-Filippini admitted a charge that she carried on business under a licence with someone who is not a suitable person to hold a licence. The CCT found that, overall, the evidence showed a range of matters in which Ms Filippini had maintained a presence and involvement in the conduct of the business.[4] The CCT fined and reprimanded Ms Penney-Filippini.[5]
[3]The Chief Executive, Office of Fair Trading v Filippini, Penny also known as Filippini [2009] QCCTPAMD 35.
[4]Ibid at [18].
[5]Ibid at [62].
The Magistrates Court proceedings
On 21 November 2013, Ms Filippini was found guilty in the Magistrates Court of pretending to be a real estate salesperson between 6 July 2012 and 14 July 2012 (charge 1) and of pretending to be a real estate salesperson on or about 6 October 2012 (charge 2) in breach of s 161(1) PAMDA.[6] The transcript of those proceedings is before me.[7] Ms Filippini, Ms Penney-Filippini, Mr John Fitzpatrick, Mrs Christine Fitzpatrick and Mr Geoffrey Price all gave evidence in those proceedings. Mr Price is the Principal Investigations Officer of the Office of Fair Trading’s Gold Coast office and investigated the complaint made about the conduct of Ms Filippini, which led to the Magistrates Court proceedings and these proceedings.
[6]Exhibit 12; OFT-12.
[7]Exhibit 13; OFT-13.
The particulars of charge 1, upon which Ms Filippini was ultimately found guilty were that Ms Filippini pretended to be a real estate agent when, on 7 July 2012, she attended an open house at 66 King Charles Avenue[8], Sovereign Islands and, while at the open home, engaged Mr and Mrs Fitzpatrick in negotiations over the property including an option to purchase the furniture and the features of the property. Further, that she negotiated aspects of the sale of the property including negotiations on an option for a 90 day contract on the property, subject to the sale of the Fitzpatricks’ property. Further, that on 13 July 2012, Mr and Mrs Fitzpatrick attended the office of Island Realty and entered into negotiations with Ms Filippini over the furniture package for the property culminating in an offer being made to purchase the furniture, which offer was subsequently rejected. Following further negotiations with Ms Filippini several days later, the offer on the furniture package for the property was accepted by the seller and included in the sale contract as an addendum.[9]
[8]This should read Drive rather than Avenue
[9]Exhibit 11; OFT-11.
In relation to charge 2, it was alleged that on or about 6 October 2012, Mr Fitzpatrick was contacted by Ms Filippini and engaged in negotiations with her in regards to a potential buyer for his property at 8 Parklane Terrace, Sovereign Islands. The ultimately unsuccessful negotiations related to an offer to exchange their property for a commercial property at Labrador.[10]
[10]Ibid.
The Grounds for disciplinary action alleged in the Chief Executive’s application to the Tribunal
On 16 October 2014, the Chief Executive applied to the Tribunal under s 497 PAMDA to conduct a proceeding to decide whether grounds exist under s 496 for taking disciplinary action against Ms Penney-Filippini and, if so, for the Tribunal to make one or more orders under s 529 PAMDA.
The Chief Executive says the following grounds exist for taking disciplinary action against Ms Penney-Filippini:
Ms Penney-Filippini has, as a licensee, contravened PAMDA;[11] and
Ms Penney-Filippini has, as a licensee, been incompetent or acted in in an unprofessional way.[12]
[11]PAMDA s 496(1)(b)(i).
[12]PAMDA s 496(1)(g)(iii).
The particulars of the grounds are:
·Ms Penney-Filippini has employed, as a real estate salesperson a person she knows or ought to have known, does not hold a registration certificate as a real estate salesperson, namely her mother, Ms Filippini (breach of s 164(1) PAMDA) (Particular 1).[13]
·Ms Penney-Filippini has, in relation to her business’ trust account, failed to comply with certain trust account obligations (the trust account matters) (Particulars 2, 3, 4, 5 and 6).
[13]PAMDA s 164(1).
I conducted a hearing over four days and heard evidence led by the Chief Executive from Mr Rodgers, Mr Price, Mr Fitzpatrick, Mrs Fitzpatrick and Ms Jacomas.
Ms Penney-Filippini, Ms Filippini, Ms Subi Singh, Mr Kyle Miller, Ms Sharon Simpson, Mr Geoff Youngman and Mr Ron Ward also gave evidence. All witnesses had completed statements or affidavits and were cross-examined. In addition to the oral evidence, I have considered the documentary evidence tendered at the hearing.[14]
[14]Exhibits 1-49.
Standard of proof
In Briginshaw v Briginshaw, Dixon J said[15]:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind which is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters reasonable satisfaction should not be produced by inexact proofs, indefinite testimony or indirect references.
[15](1938) 60 CLR 336 at 362.
In G v H[16] the majority of the High Court stated:[17]
It has been clear since the decision in Briginshaw v Briginshaw[18] that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal” (20). Thus, if there is an issue of “importance and gravity” to use the words of the trial judge, due regard must be had to its important and grave nature.
[16](1994) 181 CLR 387.
[17](1994) 181 CLR 387 at 399.
[18]Briginshaw v Briginshaw (1938) 60 CLR 336.
This is a disciplinary proceeding. In this case if the facts as alleged by the Chief Executive are proved and a ground for disciplinary action exists, I will have to determine the appropriate sanction. There are potentially grave consequences for Ms Penney-Filippini in relation to her licence and her ability to continue to conduct her business. I must be reasonably satisfied that the facts have been proved having regard to the issues important and grave nature. Reasonable satisfaction should not be produced by inexacts proofs and indefinite testimony.
Particular 1: alleged contravention of s 164(1) PAMDA – the relevant legislative provisions and legal argument
The main object of PAMDA was to provide a system for licensing and regulating persons as real estate agents and for registering and regulating persons as registered employees that achieves an appropriate balance between the need to regulate for the protection of consumers and the need to promote freedom of enterprise in the market place.[19] In interpreting the relevant provisions of PAMDA I will have regard to the objects of the Act.
[19]PAMDA s 10(1).
The Chief Executive alleges that Ms Penney-Filippini has breached s 164(1) PAMDA which provides that a real estate agent must not employ, as a real estate salesperson, a person the agent knows, or ought to know, does not hold a registration certificate as a real estate salesperson.
Did Ms Penney-Filippini know Ms Filippini did not hold a registration certificate as a real estate salesperson?
It is common ground that at all relevant times, Ms Penney-Filippini knew that Ms Filippini did not hold a registration certificate as a real estate salesperson. Ms Penney-Filippini is familiar with the various decisions made by the CCT, Court of Appeal and the Magistrates Court concerning her mother. I find accordingly.
What are the actions of a real estate salesperson?
In determining whether Ms Penney-Filippini has employed her mother as a real estate salesperson, I must consider whether the actions of Ms Filippini, were the actions of a real estate salesperson.
Section 93(1)(a) PAMDA relevantly provides that a registration certificate authorises the holder of the certificate to perform, if the holder is a real estate salesperson, any activity that may be performed by the real estate agent who employs the holder. A certificate enables the holder to do what an agent can do.
Section 128(1) PAMDA sets out what a real estate licence authorises. The licence authorises a real estate agent to perform certain activities, relevantly in this case:
(a)To buy, sell, exchange, or let places of residence or land or interests in places of residence or land;
(e) To negotiate for the buying, selling, exchanging, or letting of places of residence or land or interests in places of residence or land or businesses or interests in businesses.
‘Sell’ is defined as including ‘agree to sell, advertise or display for sale, attempt to sell, have for sale, negotiate for a sale, and in any way be concerned in selling’.[20]
[20]PAMDA, Schedule 2.
Section 160(4) excludes certain activities that an employee may perform from being those of a real estate agent. Section 160(4)(a) relevantly provides that a person does not act as a real estate agent only because the person, while performing duties as an employee of a real estate agent at the real estate agent’s registered office or other place of business-
(i)Collects, and issues receipts for rents; or
(ii)Gives a person a list, prepared by or for the real estate agent, of premises available for rent; or
(iii)Does something of an administrative nature in relation to a thing the real estate agent does as a real estate agent.
I must determine whether the actions of Ms Filippini based on my findings of fact were activities of a salesperson in line with s 128(1) PAMDA. I accept that doing the things set out in s 160(4) of PAMDA would not constitute the actions of a real estate agent or real estate salesperson.
I consider it worthwhile setting out some of the facts that are contentious as between the parties:
…
5) At the open home on the 7th July 2012 [at 66 King Charles Avenue, Sovereign Islands],[21] Ms Heather Filippini engaged Mr and Mrs Fitzpatrick in negotiations concerning the physical features of the property, including an option to purchase the household furniture and an option for a 90 day contract on the property, subject to the sale of their own property.
…
7) At the open home on 8th July 2012[22] Ms Heather Filippini engaged Ms Jacomas in negotiations concerning the price, water frontage and location of the property.
8) On the 13th July 2012, Mr and Mrs Fitzpatrick attended at the office of Island Realty and submitted an offer and contract on the property at 66 King Charles Ave. Both the respondent and Ms Heather Filippini were present. At that time, Ms Heather Filippini entered into negotiations with Mr and Mrs Fitzpatrick in relation to the furniture package for the property. An initial offer for the furniture was rejected, whereas a subsequent offer was accepted as part of the property contract.
…
10) At the open home on 15th July 2012 [at 31 Parklane Terrace, Sovereign Islands],[23] Ms Heather Filippini engaged Ms Jacomas in negotiations regarding the property location, pool, boat mooring, colour scheme, price and Ms Jacomas’s budget.
…
12) At the open home [on 15 July 2012 at 18 Queen Guinevere’s Place, Sovereign Islands] Ms Heather Filippini engaged Ms Jacomas in negotiations in respect of the location and age of the property.
13) On or about the 6th October 2012, Mr Fitzpatrick attended the office of Island Realty. At that time, Ms Heather Filippini engaged Mr Fitzpatrick in negotiations over a potential buyer for his property at 8 Parklane Tce, Sovereign Islands. The negotiations related to an offer to exchange his property for a commercial property. The offer was later rejected.
…
[21]It is not contentious that an open home at 66 King Charles Ave occurred on 7 July 2012 or that Ms Filippini, Ms Penney-Filippini, Mr and Mrs Fitzpatrick were in attendance.
[22]It is not contentious that an open home at 66 King Charles Ave occurred on 8 July 2012 and that Ms Jacomas, Ms Filippini and Ms Penney-Filippini were in attendance.
[23]It is not contentious that an open home was conducted at 31 Parklane Terrace Sovereign Islands on 15 July 2012 and that Ms Heather Filippini, Ms Penney-Filippini and Ms Jacomas attended the open home on that day.
The word ‘negotiations’ appears throughout those alleged facts. While the respondent disputes the evidence on which the facts as drafted are based, the respondent says that even if I were to accept the evidence relied on by the applicant it does not support the conclusion that there has been a breach by Ms Penney-Filippini of s 164 PAMDA.
The respondent relies on the Oxford Dictionary definition of ‘negotiate’: ‘try to reach an agreement or compromise by discussion’. The respondent submits that it is nonsensical to talk about negotiations concerning the physical features of a property. Descriptions of physical features of a property is not a negotiation. Nor, it is submitted, is asking a person what they are prepared to spend in acquiring a property.
The respondent further submits that even accepting the evidence of Mr and Mrs Fitzpatrick, there was no ‘negotiation’ to purchase household furniture. Rather, information was conveyed that some or all of the furniture in the house might be acquired. There was no ‘negotiation’ regarding a 90 day contract. Rather accepting the evidence of Mr and Mrs Fitzpatrick it was something mentioned by Ms Filippini and nothing more.
It is submitted that Ms Filippini could not have engaged Mrs Jacomas in ‘negotiations’ concerning the price, water frontage and location of the property at 66 King Charles Drive because a person cannot negotiate about physical attributes of a property. A restatement of the price of the property is not enough to amount to a negotiation.
It is also submitted that the furniture sale was a separate transaction and one that does not require a licence. It is also submitted that informing Mr Fitzpatrick that he could swap his property at 8 Parklane Terrace does not amount to a ‘negotiation’ but is merely conveying information.
The applicant submits that the content of the conversations Ms Filippini had with Mrs and/or Mr Fitzpatrick and Ms Jacomas exceeded what was permissible under the legislation. The applicant says Ms Filippini engaged in negotiations with a view to selling the properties. She provided information that would be expected a salesperson would provide to interested persons. Her actions qualify as being ‘concerned in selling’ as per the definition of ‘sell’ in Schedule 2 and her discussions are not covered by the exclusions contained in s 160(4).
I have considered the decision of this Tribunal in Queensland College of Teachers v Smith.[24] In that decision the Tribunal found that it must be satisfied that, the facts as proved in the context of the teacher’s explanation, the College of Teachers had established a particular as drafted which then showed that the teacher had acted contrary to his duties as a teacher. I have decided to follow the reasoning of the Tribunal in that decision. I must consider whether the facts underlying the particular are proven. Then, I must consider whether the facts support a finding that s 164(1) PAMDA has been contravened.
[24][2015] QCAT 426.
In relation to the respondent’s submission that I am limited to considering whether the facts establish a negotiation, in terms of the definition of ‘sell’, I note that the word ‘negotiate’ also appears in s 128(1)(e), ‘to negotiate for the buying, selling, exchanging… of [places of residence]’. Given the word negotiate appears both in s 128(1)(e) and in the definition of ‘sell’ I consider it should be given a broad interpretation. I do not consider that I am limited to considering only the definition of ‘sell’ for the purposes of s 128(1)(a) and s 128(1)(e) can also be considered and I will consider the Oxford dictionary definition of the word ‘negotiate’ in that context.
The Magistrates Court proceeding - abuse of process argument
In relation to Particular 1, the Chief Executive relies in part on the same facts as alleged in the particulars of the charges heard in the Magistrates Court and upon which Ms Filippini was found guilty. In addition, the Chief Executive says that Ms Filippini engaged Ms Joanna Jacomas in negotiations on 8 July 2012 at 66 King Charles Drive, Sovereign Islands when she attended to inspect the home and again on 15 July 2012 when Ms Jacomas attended open homes at 31 Parklane Terrace, Sovereign Islands and 18 Queen Guinevere’s Place, Sovereign Islands.
The Chief Executive submits that it would be an abuse of process if Ms Penney-Filippini were able to re-litigate issues finalised by the Magistrates Court. The Magistrates Court proceedings were proceedings brought by the Chief Executive against Ms Filippini under s 161 PAMDA. Section 161 PAMDA provides that a person must not act as a real estate salesperson unless the person holds a registration certificate (real estate salesperson). Section 161(2) PAMDA provides that a person does not act as a real estate salesperson only because the person, while performing duties as an employee of a real estate agent does certain things. Section 161(2) is in similar terms to s 160(4)(a) PAMDA.
The Chief Executive submits that I cannot make findings inconsistent with Ms Filippini’s conviction in the Magistrates Court. Indeed, the Chief Executive goes further and says that I am bound to find that Ms Filippini was acting as a real estate salesperson when she interacted with Mr and Mrs Fitzpatrick in relation to the properties at 66 King Charles Drive and 8 Parklane Terrace. It is submitted that to do otherwise is an abuse of process.
To support that submission, the applicant relies on the following passages in the decision of the High Court in Rogersv R:[25]
Re-litigation in subsequent criminal proceedings of an issue already finally decided in earlier criminal proceedings in not only inconsistent with the principle that a judicial determination is binding, final and conclusive (subject to fraud and fresh evidence), but is also calculated to erode public confidence in the administration of justice by generating conflicting decisions on the same issue.[26]
Inherent in every court of justice is the power to prevent its procedures being abused.[27] Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disprepute.[28]
[25](1994) 181 CLR 251.
[26]Ibid at [6] per Mason CJ.
[27]Hunter v Chief Constable of the West Midlands Police (1982) AC 529, 536.
[28]Rogers v R (1994) 181 CLR 251 at [16].
Reliance is also placed on the decision of the Supreme Court of Victoria, Court of Appeal in Kermani v Westpac Banking Corporation,[29] in particular, the list of the principles relevant to abuse of process set out by Robson AJA.[30] It is argued for the applicant the following principles from that list are particularly relevant in these proceedings:
[29][2012] VSCA 42.
[30]Ibid at [97].
(7) These principles apply to civil penalty proceedings: Gill v Walton.[31]
[31](1991) 25 NSWLR 190, 206-207 per Kirby P.
(10)This prima facie rule applies whether or not the two proceedings are in separate courts or one: Branir Pty Ltd v State.[32]
[32][2006] NTSC 70.
(11) The prima facie rule applies where the issues overlap or significantly overlap or there is similarity of subject matters of the proceedings
(12) The fact that the parties may not be identical, or the relief different, does not necessarily disentitle relief under this principle: Moore v Inglis.[33]
[33](1976) 9 ALR 509.
(14)The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:
(a) the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;
(b)the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e) any plea of fresh evidence including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f) the extent of the oppression and unfairness to the other party if the issue was relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process: Rippon v Chilcotin Pty Ltd.[34]
[34](2001) 53 NSWLR 198 [32].
I note that the court in Rogers v R also said:[35]
…However, the principle has an existence beyond those mechanisms so that, for example, it is an abuse of process to mount a collateral attack in civil proceedings on an earlier decision in a criminal trial. At least that is so unless there is a less onerous burden of proof or there is fresh evidence or proof of fraud. …
[35](1994) 181 CLR 251 at [10].
I consider that I must accept the fact of Ms Filippini’s convictions. However, considering the principles in Kermani and the reasons relied on from Rogers v R, I have reached the conclusion that I am not bound to make findings of fact consistent with the particulars of the charges and I can determine for myself whether based on those findings of fact Ms Filippini has acted as a real estate salesperson. I have heard evidence from witnesses who did not give evidence in the Magistrates Court. Some of the evidence I have heard, differs from that given before the Magistrate. Ms Penney-Filippini is the respondent here. Ms Filippini is not a party to these proceedings. While Ms Penney-Filippini gave evidence in the Magistrates court proceeding, she was not a party and so it cannot be assumed that she had any control over the conduct of those proceedings. These are disciplinary proceedings where the potential consequences are serious for Ms Penney-Filippini. I consider that the unfairness to Ms Penney-Filippini if I were to simply find that her mother had acted as a salesperson outweighs any matters supportive of an abuse of process. I consider that I must assess the evidence before me, which includes the transcript of evidence before the Magistrate and make my own determination of the facts and reach my own conclusions on the application of the law. I consider that my reasons for reaching that conclusion are not inconsistent with what the court said in Rogers vR as set out above and accord with the principles listed in Kermani.
Has Ms Penney-Filippini has employed Ms Filippini as a real estate salesperson - how should the term “employ” be interpreted?
I must also determine whether Ms Penney-Filippini employed Ms Filippini as a real estate salesperson.
The term ‘employ’ is defined in Schedule 2 PAMDA:
Employ includes engage on a contract for services or commission and use the services of, whether or not for reward.
Given the definition is inclusive and bearing in mind the main object of PAMDA, I consider that the definition is intended to be interpreted broadly. It is common ground that Ms Filippini did not receive any commission from Island Realty. Both parties say that I must determine whether Ms Penney-Filippini ‘used the services’ of Ms Filippini.
It is submitted for the respondent that I must be satisfied that Ms Penney-Filippini did something of a positive nature to use those services. The respondent refers me to the Oxford Dictionary definition of “used”: ‘take, hold or deploy (something) as a means of accomplishing or achieving something’. The respondent says that, at its highest, the evidence shows uninvited interference by Ms Filippini in the real estate business of her daughter which is not enough. Ms Filippini was not there for any formal purpose but involved herself without any invitation from the respondent and as a matter of law that is not sufficient to constitute a breach of s 164(1) PAMDA.
It is submitted that Ms Penney-Filippini was not present during the time of the alleged conversations and so she has not ‘used’ the services of her mother with respect to discussions with Mr and Mrs Fitzpatrick on 7 July 2012.
The applicant submits that the legislation does not require an element of ‘intent’ or ‘knowingly using the services’.
Further, the applicant says that Ms Penney-Filippini was present when her mother was involved in discussions with the Fitzpatricks and Ms Penney-Filippini did not intervene or express her disapproval of Ms Filippini’s behaviour. On the occasions when she was not present, it is unlikely that Ms Filippini would have kept those conversations a secret from her daughter, with whom she resides. Ms Filippini was the previous owner of the business. Ms Filippini’s actions were useful in the sale negotiations with the Fitzpatricks. They were actions within Ms Penney-Filippini’s knowledge and with her approval and therefore Ms Filippini’s services were used by Ms Penney-Filippini.
“Use the services of” is not defined. I have considered the ordinary meaning of the words. I consider that the plain wording of the definition supports my view that merely ‘using the services of’ a person is not enough, some form of ‘engagement’ is required as well. Otherwise, it could be argued that a licensee introduced to a buyer by an unlicensed person having had no other interaction with that person could be said to have used the person’s services and fall foul of the legislation. I do not consider that could be an intended consequence of the provision. However, given the main object of PAMDA, which includes regulation for the protection of consumers, I do not consider that the form of engagement must be formal. I consider that what might be considered ‘engagement’ depends on the circumstances of the particular case and the term should not be given a restrictive meaning.
Findings of fact in relation to the alleged breach of s 164(1) PAMDA
Facts numbered 1 to 3 (inclusive) as set out in Annexure B (the particulars) to the applicant’s application to the Tribunal are not contentious. I make the following findings of fact:
i)From 28 April 2008, the respondent has carried out the business of Heather Filippini Island Realty (Island Realty) from premises at 46 The Esplanade, Paradise Point, Queensland. Island Realty is a registered business, BN 17228920.
ii)The respondent is the holder of Real Estate Principal (REP) licence number 3123476 issued on 7th February 2006.
iii)Ms Heather Filippini (the respondent’s mother) is a former licensed REP and proprietor of Island Realty. On 29 October 2009, Ms Heather Filippini, while under a period of licence disqualification, ordered by the Commercial Consumer Tribunal (the CCT) was permanently disqualified by the CCT from holding any licence or registration under PAMDA for breaches of the Act.
Fact 4: On the 7th July 2012, the respondent conducted an open home on a property offered for sale at 66 King Charles Ave[36], Sovereign Islands. The respondent was accompanied at the open home by Ms Heather Filippini. Mr John and Mrs Christine Fitzpatrick attended the open home on that day.
[36]This should read Drive rather than Avenue.
It is agreed that Ms Filippini, Mr and Mrs Fitzpatrick and Ms Penney-Filippini attended the open home on 7 July 2012 at 66 King Charles Drive, Sovereign Islands. It is also accepted by the parties that all of those people were present at the open home for a period of time. I find accordingly.
The applicant has stated as part of fact 4 that Ms Penney-Filippini was ‘accompanied at the open home by Ms Heather Filippini’.
I am not reasonably satisfied on the evidence before me that Ms Filippini and Ms Penney-Filippini travelled to and arrived at the open home together. Mr Youngman said that he and his wife arrived early for the open house and Ms Filippini was there opening curtains. He said that then Mr Kyle Miller (employee of Island Realty) arrived and then Mr and Mrs Fitzpatrick arrived followed by Ms Penney-Filippini and then some other people who attended the open home and were of Asian appearance. Mr Miller’s evidence was that he attended the open home to assist Ms Penney-Filippini. He acknowledged that Ms Filippini also attended. During cross-examination, he said he was not sure but did not think that Ms Filippini was present when he arrived. He said he thought that the house had been opened up before Ms Filippini arrived. Ms Singh gave evidence that she also attended the open home and that the house was already opened up when Ms Filippini arrived and that Ms Penney-Filippini and Mr Miller were also present. Both Mr Miller and Ms Singh conceded that they were asked to provide statements in 2016 and as such their memory of the events of the open house may not be as good as it would have been in 2012. Ms Filippini’s evidence was that when she arrived the house was essentially already opened up and Ms Penney-Filippini gave similar evidence.
I find that Ms Filippini attended the open home but did not arrive with her daughter who had arrived separately.
I consider that the use of the word ‘accompanied’ is suggestive of Ms Filippini’s attendance and presence at the open home being within the knowledge of Ms Penney-Filippini.
The evidence of Ms Filippini and Ms Penney-Filippini before the tribunal as to how Ms Filippini came to be present at the open house on 7 July 2012 at 66 King Charles Drive differed somewhat from the evidence given before the Magistrate. Ms Filippini told the tribunal that she was aware that two salespeople would be present at the open house and she essentially just popped in to see if everything was okay and then got caught up talking to neighbours. She indicated that it was a surprise to her daughter when she showed up. However, in the court proceedings, Ms Filippini said: [37]
On the day that they did come to the open home, I do remember- I do recall, because we just –they’d just opened the home for inspection and there were a lot of people in the house, and I went there especially. Sarah said, ‘Mum, we’re going to be really busy’, because it was a very large three-level house, and there are double blinds and curtains and it’s a really big house to open. By the time you open all the doors you could spend 15 minutes opening three levels. So I went there purely to open all the blinds and …
[37]Exhibit 13 Transcript 1-47, lines 19-26.
When that prior evidence was put to Ms Filippini she maintained she had not been asked to attend and said that when she got there everything was done. Later in her evidence before the tribunal, she accepted that she had opened a little door that had not been opened and which she had trouble opening and pulled up one blind.
Ms Filippini has given conflicting evidence about whether her potential attendance at the open house was the subject of discussion with her daughter prior to the attendance. Her evidence to the Magistrate that she went there especially as her daughter said they were going to be really busy suggests that there was some discussion about the particular open house and it was not just a spur of the moment decision to pop in.
It was Ms Penney-Filippini’s evidence that she had not asked her mother to attend the open home. They had not arrived together. Ms Subi Singh and Mr Kyle Miller, real estate salesperson gave evidence that they also attended the open home to assist Ms Penney-Filippini open up the house. Both Ms Singh and Mr Miller gave evidence that while Ms Filippini attended the open home, her attendance was not expected and the home had already been prepared for the open house before she arrived.
Ms Penney-Filippini’s evidence to the tribunal was that she did not really know why her mother had called in but that she thought her mother had come to have a look at the house. Her evidence was that her mother would have known she had open homes but not the exact schedule of them. Before the Magistrate, Ms Penney-Filippini was asked why her mother would have been there at an open house to which Ms Penney-Filippini responded: [38]
Mum’s only there, I guess from time to time if I’m having a busy day or – or feel that I might need her. Quite often – in particular, on open home day, you might only have a couple of people come through in four or five hours, so quite often, it’s lonely, but it’s a nice time to chat or she brings me lunch; things like that. But certainly no – not all the time.
[38]Exhibit 13 Transcript 1-71, lines 42 to 47.
That evidence also suggests that Ms Filippini’s attendance at open homes is not random but occurs because of communications between mother and daughter about the scheduled open homes or at Ms Penney-Filippini’s instigation if she needs her mother for something including company. It also casts some doubt on her evidence that she did not expect her mother to attend.
I find that Ms Penney-Filippini was accompanied by Ms Filippini at the open home in that she attended the open home and I find that her attendance at the open home occurred due to discussions with Ms Penney-Filippini about the open home.
Fact 5: At the open home on the 7th July 2012, Ms Heather Filippini engaged Mr and Mrs Fitzpatrick in negotiations concerning the physical features of the property, including an option to purchase the household furniture and an option for a 90 day contract on the property, subject to the sale of their own property.
Ms Filippini told the tribunal that Mr Geoff and Mrs Joanne Youngman (the then neighbours of Mr and Mrs Fitzpatrick) who were also present at the open home said to her, in reference to the Fitzpatricks, words to the effect of ‘They live next-door to us and are looking for a house with a basement. I think they like this one.’[39] Mr Youngman denied having said anything to Ms Filippini about Mr and Mrs Fitzpatrick liking the house.
[39]Affidavit of Heather Penney 26 June 2015 Exhibit 26, [26].
The evidence of Mr and Mrs Fitzpatrick in relation to the conversations they had with Ms Filippini and Ms Penney-Filippini is almost entirely inconsistent with the evidence of Ms Filippini and Ms Penney-Filippini. Ms Filippini says that she remarked to Mrs Fitzpatrick that she was wearing a nice cardigan but otherwise did not engage in conversation with them at the open house on 7 July 2012.[40] She conceded she may have said to her daughter ‘have you got the details’ being a reference to the Fitzpatricks’ contact details.
[40]Ibid, [22] and [23].
In her evidence before the tribunal, Ms Filippini denied referring to the fountain outside the property. However, in her evidence before the Magistrate, she said that she ‘may have said there’s a fountain behind there. I’m just opening the blinds. That’s possibly something I could have said, but I can’t – I could have said something like that to that effect’.[41]
[41]Exhibit 13;Transcript court proceeding page 61 line 20.
Before the Magistrate, Ms Filippini gave evidence that the brochure for the property stated clearly that a furniture package was available. In her affidavit,[42] Ms Filippini states that her daughter had prepared a brochure for the property and would have given this to the Fitzpatricks when they arrived and she further states that she has since looked at the brochure and it clearly states a furniture package is available and that the owner was offering flexible settlement options. She also states that it was detailed on the sign.[43]
[42]Affidavit of Heather Isobel Penney 26 June 2015 Exhibit 26.
[43]Exhibit 26 [24].
Mr Fitzpatrick gave evidence that the availability of a furniture package was not stated in the brochure he received at the open house on 7 July 2012. Indeed attached to Mr Fitzpatrick’s statement[44] is a copy of the brochure Mr Fitzpatrick says he received at the open house. It does not refer to a furniture package. Ms Filippini’s explanation for her evidence is that there must have been two brochures produced. A second brochure is not in evidence.
[44]Dated 17 July 2015 Exhibit 21.
Ms Penney-Filippini’s evidence to the tribunal regarding the contents of the brochure is also inconsistent with her evidence before the Magistrate. She told the court that the availability of a furniture package was in the brochure but told the tribunal that was not the case and her evidence to the court was wrong because she thought it was mentioned but had not reviewed the brochure.
Ms Penney-Filippini’s evidence to the tribunal was that her mother commented on Mrs Fitzpatrick’s cardigan. She said she might not have heard the entirety of the conversation between her mother and Mr and Mrs Fitzpatrick. Before the Magistrate Ms Penney-Filippini said:
Mr Rosser: And were you present when any – there was any conversation between the Fitzpatricks and Heather?
Ms Penney-Filippini: Yes. Yes. The – the entry to that property is quite large and I remember for most of the open home, mum had been talking to some neighbours. There’s two different groups of neighbours that had come through that day and she’d been chatting to some people. They – they live overseas and catching up with them. And I – I just remember the – the Fitzpatricks sort of coming through fairly briefly, really.
Mr Rosser: Did - do you remember any of the words that your mother used in conversation with them?
Ms Penney-Filippini: I do remember that she commented on Mrs Fitzpatrick’s jumper. I remember that. And I know that we didn’t actually know where they – they came from, so she just sort of said friendily, I like your – nice jumper or something like that. But anything – it was just a very casual conversation.[45]
…
Mr Vize: You might recall something about a jumper but the whole time you would have been within earshot of anything your mother would have said to those people?
Ms Penney-Filippini: Yes[46]
[45]Exhibit 13: Transcript 1-73, lines 24-36.
[46]Exhibit 13: Transcript 1-88, lines 13-14.
Ms Penney-Filippini’s evidence before the Magistrate was that she heard the entire conversation her mother had with Mr and Mrs Fitzpatrick on 7 July 2012 and was in a position to corroborate her mother’s evidence. In my view, the inconsistencies in her evidence impact her credibility. Ms Penney-Filippini’s licence is potentially at stake in these proceedings. I consider that a strong motivation to modify evidence. I consider that it was to her mother’s advantage in the Magistrates Court proceedings to give evidence that she heard the extent of the conversation her mother had with Mr and Mrs Fitzpatrick. In these proceedings and given the respondent’s legal argument regarding how I should interpret the phrase ‘use the services of’, it is to Ms Penney-Filippini’s advantage if I were to accept she did not hear all of the conversation.
Mr Fitzpatrick also gave evidence before the tribunal that conflicts with what he told the Magistrate. Mr Fitzpatrick told the Magistrate that he had overheard the respondent speaking with an Asian lady about a furniture package.[47] However, before the tribunal Mr Fitzpatrick said he was not sure whether he had overheard the furniture package being discussed. He said he could not say now with any certainty that he had overheard that. He said it might have been his recollection at the time of the Magistrates Court proceeding. Otherwise, he did not resile from his evidence to the court or his statements.
[47]Exhibit 13: Transcript 1-23, lines 5-10.
The respondent submits that I should have serious concerns about the reliability of Mr Fitzpatrick’s evidence and that he chooses what evidence best suits his purposes. The respondent says that that is not only because of the difference in his evidence about whether he overheard a conversation between Ms Penney-Filippini and the Asian lady but also because he has ‘embraced’ the applicant’s proceedings against the respondent. The respondents says this is clear from Mr Fitzpatrick having prepared numerous statements in response to those relied on by the respondent to the point of conducting his own internet research in an attempt to demonstrate that the respondent had caused the original advertising of 66 King Charles Drive to be changed to reflect the respondent’s evidence to the tribunal.
In my view, Mr Fitzpatrick’s participation in the proceedings even if he took his own proactive steps to provide information and evidence to the applicant is not a basis to regard Mr Fitzpatrick’s evidence is not truthfully given and unreliable. The respondent does not claim that any of Mr Fitzpatrick’s evidence regarding the internet searches was manufactured to discredit her. Mr Fitzpatrick has cooperated with the applicant’s investigation and been prepared to give evidence. There is no compelling evidence before me that Mr Fitzpatrick has any motive to give untruthful evidence.
Further, I do not consider Mr Fitzpatrick’s evidence to the tribunal regarding the conversation the respondent had with the Asian lady on 7 July 2012 to be necessarily inconsistent with his evidence to the court. Mr Fitzpatrick said that he cannot now recall with certainty overhearing the conversation. Given the passage of time since the events in issue, it is unsurprising that a person’s recollection of events might fade with the passage of time. I consider that Fitzpatrick gave his evidence in a frank manner.
Mrs Fitzpatrick gave evidence consistent with that of Mr Fitzpatrick in relation to the occasions on which they were both present with Ms Filippini and/or Ms Penney-Filippini. Her credibility is not questioned. In relation to the conversation that occurred at the open home on 7 July 2012 between Ms Filippini and Mr and Mrs Fitzpatrick, the respondent asks that I prefer the evidence of Ms Filippini to that of Mr and Mrs Fitzpatrick. In this case, Ms Filippini’s daughter’s real estate licence is potentially at risk. I consider that Ms Filippini has the greater motivation to give untruthful evidence. I have highlighted some of the differences between Ms Filippini’s evidence to the court and to the tribunal which I consider impacts her credibility including in my consideration of fact 4.
Further, there is no supporting evidence for Ms Filippini’s evidence that there must have been two brochures. Ms Penney-Filippini did not say that two brochures were produced. I do not accept that there were two brochures produced. Ms Filippini has given false evidence about having reviewed the brochure and about its contents. To the extent that there is any inconsistency between the evidence of Ms Filippini and Ms Penney-Filippini and that of Mr and Mrs Fitzpatrick in relation to the conversation that occurred at the open house at 66 Kings Charles Drive on 7 July 2012, I prefer the evidence of Mr and Mrs Fitzpatrick.
In his first statement,[48] Mr Fitzpatrick says that Ms Filippini approached him and Mrs Fitzpatrick, asking what they thought of the house. When they responded that they were interested in it a conversation ensued wherein Ms Filippini indicated that the owner was interested in selling the house along with a furniture package. Further, Mrs Fitzpatrick’s evidence[49] consistently with that of Mr Fitzpatrick was that she said words to the effect: ‘We would have to sell our house first’ to which Ms Filippini said words to the effect ‘You could go with a 90 day contract, subject to the sale of your house. We would be happy to do some open homes to try to sell it for you’. Mr Fitzpatrick’s evidence consistently with Mrs Fitzpatrick’s evidence is that Ms Filippini also pointed out various features of the property including the fountain at the side of the property. I have already noted that Ms Filippini told the court she might have mentioned the fountain.
[48]Exhibit 7.
[49]Exhibit 8.
Based on the evidence of Mr and Mrs Fitzpatrick, I find that Ms Filippini pointed out features of the property, informed Mr and Mrs Fitzpatrick that there was an option to purchase the household furniture and raised the option for a 90 day contract on the property subject to the sale of their own property.
Fact 6: On the 8th July 2012, the respondent conducted an open home on a property offered for sale at 66 King Charles Ave, Sovereign Islands. The respondent was accompanied at the open home by Ms Heather Filippini. Ms Joanna Jacomas attended the open home on that day.
While Ms Penney-Filippini was unsure whether an actual open home was listed and conducted on 8 July 2012, she accepts that she attended 66 King Charles Drive, Sovereign Islands with her mother on that date and Ms Jacomas was also present. I consider fact 6 to be uncontentious and find accordingly.
Fact 7: At the open home on 8th July 2012, Ms Heather Filippini engaged Ms Jacomas in negotiations concerning the price, water frontage and location of the property.
The respondent submits that Mrs Jacomas is a particularly unreliable witness. Ms Jacomas gave evidence that she enjoys attending open homes on Sovereign Islands when she holidays and essentially pretends to be a potential buyer. She said she enjoys the luxury of the homes there. She admitted that she engages real estate agents in conversation about the properties she inspects with no intention of purchasing them.
Ms Jacomas also gave evidence that it was common knowledge that there was a mother and daughter who worked on the island. She also said that her female friend who is also a real estate agent told her about the mother and daughter working on the island and that the daughter had a Maserati. The friend also told her that the mother and daughter could have open homes on the island. When her friend was unable to take her to any listings and another agent whom she called could not assist her, she decided to drive to Sovereign Islands. She located the Maserati and spoke to Ms Penney-Filippini about attending open homes.
The respondent asserts that Ms Jacomas’ friend was either the source of the complaint to the Chief Executive which prompted the investigation that led to the Magistrates Court proceedings and these proceedings, or Ms Jacomas’s friend was in some way instrumental in the complaint being made. It is asserted that Ms Jacomas was the means to obtain evidence against the respondent and she was a willing participant in an effort to assist her friend.
Ms Jacomas said she did not make the complaint to the applicant. She provided a statement to the applicant dated 17 July 2012.[50] Her evidence was that on 16 July, she told her friend about attending the open homes and that she also told her daughter about the inspections. She agreed it was unlikely that her daughter had communicated with the applicant.
[50]Exhibit 10.
During the course of the hearing, I upheld the applicant’s objection to Mr Price giving evidence as to the source of the complaint that led to the investigation. It was Mr Price’s evidence that the source had asked that their identity be kept confidential. Later, the applicant’s representative indicated from the bar table that the source was a male person.
I do not know who made the complaint to the applicant. Even if Ms Jacomas sought to engage Ms Filippini in conversation to obtain evidence that could form the basis of a complaint, Ms Jacomas is not responsible for Ms Filippini’s presence at the open home nor must it follow that Ms Jacomas’ evidence is wholly unreliable.
Ms Jacomas says that Ms Filippini stated words to the effect that the property ‘…was on the market for $2.3 million and that the vendor was negotiable on price. The property had a wide water frontage with a deep draft that would support a large boat’.[51]
[51]Exhibit 10, [8].
She states further that Ms Filippini continued to tell her about the characteristics of the property, focussing mainly on the downstairs features as well as the location of the property.[52]
[52]Exhibit 10, [9].
She states that before leaving, Ms Penney-Filippini pointed out that the property had a solar heated pool and that Ms Filippini made a comment indicating that she wasn’t sure about the pool.[53]
[53]Exhibit 10, [10].
In her statement, Ms Penney-Filippini does not deny those paragraphs of Ms Jacomas’ statement but rather says the brochure Ms Jacomas was given stated the price was $2.3 million and that ‘a vendor is negotiable on price is hardly illuminating’. Further, she states that the fact that the property had a wide water frontage was detailed on the open home brochure and is obvious from an inspection of the property. Further, she says it is not surprising that the water frontage would support a boat given one was moored in front of the house during the inspection.[54]
[54]Exhibit 34, [81].
Ms Filippini denies having any conversation with Ms Jacomas other than polite chitchat.[55] She denies pointing out the features of the property including the solar heated pool. Ms Penney-Filippini’s oral evidence to the tribunal was essentially consistent with her mother’s but for conceding at one point in her evidence that her mother may have questioned whether the pool was solar heated and there may have been some chatting about the characteristics of the property. Ms Penney-Filippini’s evidence is that her mother only responded to comments made by Ms Jacomas.
[55]Exhibit 49, [7].
On balance, I find that on 8 July 2012 at the open home at 66 King Charles Drive, there were discussions between Ms Filippini and Ms Jacomas regarding the price of the property including that the price was negotiable, water frontage and location of the property. I also find that Ms Penney-Filippini was present during those discussions.
Fact 8: On the 13th July 2012, Mr and Mrs Fitzpatrick attended at the office of Island Realty and submitted an offer and contract on the property at 66 King Charles Ave. Both the respondent and Ms Heather Filippini were present. At that time, Ms Filippini entered into negotiations with Mr and Mrs Fitzpatrick in relation to the furniture package for the property. An initial offer for the furniture was rejected, whereas a subsequent offer was accepted as part of the property contract.
Mr and Mrs Fitzpatrick say that on 13 July 2012 they attended the Island Realty office and submitted an offer on the property at 66 King Charles Drive by signing a contract on the property. They say they also paid a deposit by cheque. They say that they had a brief discussion regarding the furniture package discussed at the first inspection with Ms Filippini. Ms Penney-Filippini said that she would have her mother to discuss this with the owner and get back to them with a list of inclusions. The owner of the property was Mr Raymond Bartlett. Mr Bartlett is deceased. His assistant Ms Simpson gave evidence.
Mr and Mrs Fitzpatrick do not say that Ms Filippini was present with Ms Penney-Filippini at the Island Realty office on 13 July 2012.[56] From their statements, the discussion around what furnishings might be included in any agreement for sale occurred several days after 13 July 2012.[57]
[56]Exhibit 8, [9] and [10]; Exhibit 7, [11] and [12].
[57]Exhibit 8, [13]; Exhibit 7, [13].
Mr and Mrs Fitzpatrick say that several days after 13 July 2012, they attended the offices of Island Realty and discussed with both Ms Filippini and Ms Penney-Filippini an increased offer for the house which they asked to be submitted. They say that Ms Filippini informed them that the furniture only included the actual furniture and did not include any soft furnishings or other decorative items. Discussions about this included Ms Filippini saying that she would call Mr Bartlett, the vendor of the property and see what could be done regarding the extra items they wanted included in the purchase.[58]
[58]Exhibit 8, [12]; Exhibit 7, [13].
They say that a few days later again they were advised that their offer to purchase the house had been successful and that Mr Fitzpatrick engaged in further negotiations regarding the furniture signing an additional addendum for $15,000 to secure the extra items they wanted.[59]
[59]Exhibit 8, [13]; Exhibit 7, [14] and [15].
Ms Penney-Filippini agrees that on 13 July 2012, Mr and Mrs Fitzpatrick made an offer to purchase the property. Ms Penney-Filippini denies that she said she would get her mother to discuss the furniture package with the then owner of 66 King Charles Drive. Ms Penney-Filippini’s evidence is that she discussed the purchase of the furniture with Mr and Mrs Fitzpatrick and the negotiations relating to the furniture packages, separate to the house purchase were between Ms Simpson, Mr Bartlett’s assistant, Mr Fitzpatrick and her.[60] Ms Simpson’s evidence was that her dealings in respect of the furniture were with Ms Penney-Filippini.[61]
[60]Exhibit 34, [61].
[61]Exhibit 45.
I find that on 13 July 2012 Mr and Mrs Fitzpatrick attended the offices of Island Realty and submitted an offer and contract on the property at 66 King Charles Drive.
There is no dispute that there were ultimately two separate agreements for Mr and Mrs Fitzpatrick to purchase items of furniture from the owner of 66 King Charles Drive, Mr Raymond Bartlett.[62] The furniture was not included in the contract of sale of the house.[63] I do not find that the offer for the furniture was accepted as part of the property contract.
I make the following directions:
The Chief Executive,Department of Justice and Attorney-General must file in the Tribunal two (2) copies and give to Sarah Louise Penney-Filippini one (1) copy of any written submission the Chief Executive wishes to make in relation to the orders the tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00 pm on 3 August 2016.
Sarah Louise Penney-Filippini must file in the Tribunal two (2) copies and give to the Chief Executive, Department of Justice and Attorney-General one (1) copy of any written submission she wishes to make in relation to the orders the tribunal may make pursuant to s 529 PAMDA or any other relevant legislation by 4:00pm on 31 August 2016.
The proceeding is listed for a half-day oral hearing on a date to be advised for the tribunal to consider the orders it may make pursuant to s 529 PAMDA or any other relevant legislation.
2
10
3