COMMISSIONER FOR CONSUMER PROTECTION and CENTEX AUSTRALASIA PTY LTD [2015] WASAT 129 (S)
[2015] WASAT 129 (S)
•9 MARCH 2016
COMMISSIONER FOR CONSUMER PROTECTION and CENTEX AUSTRALASIA PTY LTD [2015] WASAT 129 (S)
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 129 (S) | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:211/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS R MOORE (MEMBER) MR R ADAMS (SESSIONAL MEMBER) | 9/03/16 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Respondents reprimanded Respondents' licences and triennial certificates suspended for four months Respondents to pay Commissioner of Consumer Protection's costs of $12,782 | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR CONSUMER PROTECTION CENTEX AUSTRALASIA PTY LTD RICK ANTHONY BANTLEMAN |
Catchwords: | Real estate and business agent Duty to act fairly and honestly Breach of Code of Conduct Penalty |
Legislation: | Code of Conduct for Agents and Sales Representatives 2011 (WA), s 7(1) Real Estate and Business Agents Act 1987 (WA), s 101(1)(a), s 103(1), s 103(2)(c)(iii) Settlement Agents Act 1981 (WA), s 82, s 83, s 84(1), s 84(2)(c)(iii) |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v Medical Board of South Australia (2001) 79 SASR 545 Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) Law Society of New South Wales v Foreman (1994) 34 NSWLR Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee and Wells [2014] WASAT 112 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Detata [2012] WASCA 2014 Legal Profession Complaints Committee v Lashansky [2007] WASC 211 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 Legal Profession Complaints Committee v Segler [2014] WASC 159 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Maddocks [1988] NSWCA 102 NSW Bar Association v Hamman [1999] NSWCA 404 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re H (a Barrister) [1981] 1 WLR 1257 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 |
Orders | 1. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman be reprimanded.,2. Centex Australasia Pty Ltd's and Mr Rick Anthony Bantleman's licences and triennial certificates be suspended for four months from 11 April 2016.,3. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman pay the Commissioner for Consumer Protection's costs of $12,782. |
Summary | The agents were found to have breached the requirements of s 7(1) of the Code of Conduct for Agents and Sales Representatives 2011 (WA), under the Real Estate and Business Agents Act 1987 (WA), to act fairly and honestly. Whilst recognising that unfair and dishonest conduct is always serious, the conduct was at the lower end of seriousness. ,The Tribunal reprimanded the agents, imposed a suspension of four months and ordered the agents to pay the Commissioner for Consumer Protection's costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and CENTEX AUSTRALASIA PTY LTD [2015] WASAT 129 (S) MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS R MOORE (MEMBER)
MR R ADAMS (SESSIONAL MEMBER)
- Applicant
AND
CENTEX AUSTRALASIA PTY LTD
First Respondent
RICK ANTHONY BANTLEMAN
Second Respondent
Catchwords:
Real estate and business agent - Duty to act fairly and honestly - Breach of Code of Conduct - Penalty
Legislation:
Code of Conduct for Agents and Sales Representatives 2011 (WA), s 7(1)
Real Estate and Business Agents Act 1987 (WA), s 101(1)(a), s 103(1), s 103(2)(c)(iii)
Settlement Agents Act 1981 (WA), s 82, s 83, s 84(1), s 84(2)(c)(iii)
Result:
Respondents reprimanded
Respondents' licences and triennial certificates suspended for four months
Respondents to pay Commissioner of Consumer Protection's costs of $12,782
Summary of Tribunal's decision:
The agents were found to have breached the requirements of s 7(1) of the Code of Conduct for Agents and Sales Representatives 2011 (WA), under the Real Estate and Business Agents Act 1987 (WA), to act fairly and honestly. Whilst recognising that unfair and dishonest conduct is always serious, the conduct was at the lower end of seriousness.
The Tribunal reprimanded the agents, imposed a suspension of four months and ordered the agents to pay the Commissioner for Consumer Protection's costs.
Category: B
Representation:
Counsel:
Applicant : N/A
First Respondent : N/A
Second Respondent : N/A
Solicitors:
Applicant : Department of Commerce
First Respondent : Trinix Lawyers
Second Respondent : Trinix Lawyers
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)
Law Society of New South Wales v Foreman (1994) 34 NSWLR
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v Lashansky [2007] WASC 211
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
New South Wales Bar Association v Maddocks [1988] NSWCA 102
NSW Bar Association v Hamman [1999] NSWCA 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re H (a Barrister) [1981] 1 WLR 1257
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Introduction
1 On 23 November 2015, following a hearing over two days, the Tribunal found that Centex Australasia Pty Ltd (Centex) and Rick Anthony Bantleman, who held real estate agents' licences, to have not acted fairly and honestly contrary to s 7(1) of the Code of Conduct for Agents and Sales Representatives2011 (WA) (Code of Conduct) (see Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 (Centex Decision)).
2 The Tribunal found that Centex and Mr Bantleman breached s 7(1) of the Code of Conduct by not acting honestly and fairly in that:
a) the term of the Management Authority and the management fee were not discussed at a meeting on 6 August 2013 between Mr Bantleman and the principal, Mr Chalwell; and
b) Mr Bantleman amended the term of the Management Authority and increased the management fee knowing Mr Chalwell had not agreed to these amendments and sent an amended copy to Mr Chalwell.
3 The Tribunal is empowered to impose penalties pursuant to s 103(1) of the Real Estate and Business Agents Act 1987 (WA) (the Real Estate Agents Act).
4 In its submissions filed 30 November 2015, the Commissioner for Consumer Protection (Commissioner) sought the following orders:
1) a suspension of each agent's licence and triennial certificate for 12 months;
2) the suspension to commence 14 days after the making of the order;
3) the agents be reprimanded; and
4) the agents pay the Commissioner's costs of $12,782.
5 In their submissions filed on 14 December 2015, Centex and Mr Bantleman sought orders that a fine be imposed.
The Real Estate Agents Act and the Settlement Agents Act 1981 (WA)
6 Section 101(1)(a) of the Real Estate Agents Act provides:
The Commissioner may from time to time prescribe, and publish in the manner prescribed by the regulations a code of conduct for agents[.]
7 Section 82 of the Settlement Agents Act 1981 (WA) (Settlement Agents Act) provides:
The Commissioner may, with the approval of the Minister, make rules prescribing a code of conduct for settlement agents.
8 Section 103(2)(c)(iii) of the Real Estate Agents Act provides:
There shall be proper cause for disciplinary action against an agent if the agent is acting or has acted in breach of the agents code of conduct;
9 Section 84(2)(c)(iii) of the Settlement Agents Act provides:
There shall be proper cause for disciplinary action if the settlement agent is acting or has acted in breach of the settlement agents' code of conduct[.]
10 Section 103(1) of the Real Estate Agents Act relevantly provides:
(1) If, in a proceeding commenced by an allegation under section 102(1) against an agent, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things
(a) reprimand or caution the agent;
(b) impose a fine not exceeding $10 000 on him;
(c) suspend or cancel his licence and any triennial certificate in respect thereof and in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from holding a licence or triennial certificate, or both;
…
If, in a proceeding commenced by an allegation under section 83 the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things
(a) reprimand or caution the settlement agent;
(b) impose a fine not exceeding $10 000 on him;
(c) suspend or cancel his licence and any triennial certificate in respect thereof and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal or until the further order of the State Administrative Tribunal, from holding a licence or triennial certificate, or both.
Disciplinary sanctions general principles
12 The appropriate penalty is to be considered at the time of imposing the penalty and not at the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner(S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 (A Solicitor[2004] NSW) at [15]; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [16]).
13 In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 (Paridis), the Court of Appeal set out the principles relevant to a breach of the Code of Conduct under the Settlement Agents Act. Those principles apply equally to a breach of the Code of Conduct under the Real Estate Agents Act. In Paridis at [25], Buss JA stated:
The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. See, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286; Clyne v New South Wales Bar Association (1961) 104 CLR 186 at 201–202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183–184; Re a Barrister and Solicitor;Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 at 244; Re a Barrister and Solicitor (1979) 40 FLR 1 at 2425; Re a Practitioner;Ex parte The Legal Practitioners Disciplinary Tribunal[2001] WASCA 204 at [6]–[7]. As Crawford J noted, in Law Society of Tasmania v Turner (2001) 11 Tas R 1, at 24 [61], in the context of disciplinary proceedings against a legal practitioner:
The powers of the Court are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also its clients from harm. The Court's task is to uphold the dignity and standards of the profession and to enable it to do so, it has many powers, including the power to impose a fine not exceeding $20,000, to order payment of costs, to suspend and to strike off. Such orders are, of course, of a punitive nature but their imposition should not be regarded as sentences as for crimes and offences. The order the Court makes should be one 'which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct'. Dickens v Law Society [42/1981] at 16.
14 In Paridis at [30], Buss JA set out the relevant factors in assessing a penalty under s 83 of the Settlement Agents Act:
1)the conduct giving rise to the allegations and its seriousness;
2) the agent's explanation for the conduct;
3) the necessity to maintain proper standards among settlement agents and maintain public confidence in relation to the professional and ethical behaviour of agents;
4)the necessity for general deterrence; and
5) personal matters, of a mitigatory nature, including the agent's professional behaviour before and after the incidents in question, and the extent of the agent's rehabilitation.
In Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells) the Tribunal set out a list of 12 factors to be considered. The matters set out in Wells are illustrative of the matters set out by the Court of Appeal in Paridis.
The matters set out below are interrelated and are not mutually exclusive. The list of matters is not exhaustive and it is not a code. The twelve factors are:
- 1) any need to protect the public against further misconduct by the agent (Craig v Medical Board of South Australia (2001) 79 SASR 545 (Craig) at [47]; Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Law Society of New South Wales v Foreman (1994) 34 NSWLR (Foreman at 440C; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman)at [77]);
2) the need to protect the public through general deterrence of other agents from similar conduct (Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992); Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]); Paridis at [30(4)]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter an agent from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig at [64]; Johnson at [103]); Paridis at [30(3)]);
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow agents can place reliance on the word and conduct of the agent (Johnson at [109]; Foreman at 445B-445G);
5) whether the agent has breached any:
a) Act;
b) Regulations;
c) Guidelines or Code of Conduct, issued by the relevant professional body; and
d) whether the practitioner has done so knowingly;
6) whether the agent's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E-442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the agent's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9) whether or not the agent understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the agent, since an agent who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]);
The agent's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted (A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108][109]; New South Wales Bar Association v Maddocks [1988] NSWCA 102).
Lack of remorse should not, in the absence of aggravating factors, be the predominate factor leading to a heavy sanction if otherwise a lighter sanction would be applied; Re H (a Barrister) [1981] 1 WLR 1257.
10) the desirability of making available to the public any special skills possessed by the agent;
11) the agent's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis at [30(5)]); and
12) the Tribunal may consider any other matters relevant to the agent's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
15 All of the above matters are to be considered in the context of the Tribunal's findings as to liability, that is, how serious was the conduct and the agents' explanation for the conduct (Paridis at [30(1)][30(2)]).
General matters relating to sanctions
16 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
17 The dominant purpose of the disciplinary provisions of the Real Estate Agents Act is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
18 It is the agent's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 271-272; ASolicitor [2004] NSW).
19 As the Tribunal explained in A Legal Practitioner(S) at [24]:
... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]
Centex's and Mr Bantleman's conduct was essentially one incident, although the conduct took place over a number of days.
Cancellation of registration
The jurisdiction of the Tribunal to cancel an agent's registration is exercised not for the purpose of punishing the agent concerned, but for the protection of the public and the reputation and standards of the profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
Where an order for cancellation of an agent's registration is contemplated, the ultimate question is whether the material demonstrates that the agent is not a fit and proper person to remain an agent: A Solicitor[2004] NSW at [15].
An agent is not a fit and proper person to be a registered agent and should be removed from the register where the conduct is so serious that the agent is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe(No2) [2003] NSWADT 159at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19][20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26][28]); Love at [17][18]).
Suspension
Suspension is a less serious result and differs from cancellation of an agent's registration because suspension is for a specified limited period.
The proper use of suspension is in cases where the agent has fallen below the high standards to be expected of such an agent, but not in such a way as to indicate that the agent lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of an agent (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the agent will be fit to resume practice (A Legal Practitioner (S) at [27]).
Factor 1 Is there a need to protect the public against further misconduct by Centex and by Mr Bantleman?
20 The duty to act fairly and honestly is central to an agent's obligation to their principles. Any breach of that obligation raises the risk of further misconduct because it reflects a breach of such a fundamental obligation. However, the risk of further misconduct is to be considered in the context of an agent's disciplinary history.
Factor 2 Is there a need to protect the public through general deterrence of other agents?
21 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public through general deterrence of other agents.
Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
22 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public by reinforcing high professional standards and denouncing transgressions.
Factor 4 Dishonesty
23 Centex's and Mr Bantleman's conduct was dishonest for the reasons set out in the Centex Decision.
24 The conduct was deliberate in the sense that Mr Bantleman knew that there had been no discussion of or agreement to the amended terms (Centex Decision at [43]). Therefore, the conduct went beyond a mere 'failure' to meet a standard or norm of conduct and was dishonest and unfair (Centex Decision at [86]). This is a serious example of a contravention of s 7 of the Code of Conduct.
25 The conduct was calculated to be of benefit to Centex and Mr Bantleman (Centex Decision at [37]).
Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct
26 Centex's and Mr Bantleman's conduct involved a serious breach of the Code of Conduct.
Factor 6 Incompetence
Factor 6 does not apply.
Factor 7 Was the incident isolated?
27 Centex's and Mr Bantleman's breach was isolated. Centex and Mr Bantleman had held a licence and triennial certificate for six years and seven years respectively. Mr Bantleman had worked as a chartered accountant for 20 years without a disciplinary complaint.
Factor 8 Centex's and Mr Bantleman's disciplinary history
28 Neither Centex nor Mr Bantleman has any disciplinary history.
Factor 9 Whether or not Centex and Mr Bantleman understands the error of their ways, including an assessment of any remorse and insight (or a lack thereof) shown by them
29 The Tribunal infers that Centex and Mr Bantelman understood the error of their ways in that they agreed to terminate the management authority upon Mr Chalwell requesting them to do so.
Factor 10 Are there any special skills possessed by Centex and Mr Bantleman?
Centex and Mr Bantleman do not possess any special skills.
Factor 11 Mr Bantleman's personal circumstances
30 Centex's and Mr Bantleman's submissions referred to the reduced income due to the downturn in the real estate industry. The Tribunal is not persuaded that this is a mitigating factor. An agent is obliged to comply with the Code of Conduct in good times and in bad.
31 Mr Bantleman's son has a medical condition which means that his wife cannot work. The Tribunal accepts that this may have an effect on the agent's quality of life. However, this cannot overcome the Tribunal's duty to protect the public.
Factor 12 Are there any other matters related to Centex's and Mr Bantleman's fitness to practise?
32 The amount of commission that Centex and Mr Bantleman might have obtained was relatively small. In terms of the management fee, the increase in the management fee was from 6% to 8%.
33 An increased management fee was only charged for two months, although that appears to have been as a result of an administrative error, rather than a conscious decision on Centex's and Mr Bantleman's part.
34 However, there was a significant increase in the terms of the agreement from five years to 13 years.
35 The financial risk the principal faced is to be contrasted with the amounts of money that are often involved in trust account breaches.
36 In terms of the seriousness of breaches relating to dishonesty, Centex's and Mr Bantelman's conduct falls at the lower end of the scale. However, it must be recognised that any breach relating to dishonesty is serious.
Costs
37 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] (Roberman S), the Tribunal held that where a regulator successfully brings a complaint which justifies disciplinary action, there will usually be a strong case for the awarding of costs to that regulator.
38 Although the decision in RobermanS does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Commissioner to prosecute agents who breach the Code of Conduct is an important factor to be considered.
39 Having considered the circumstances, the Tribunal is satisfied that Centex and Mr Bantleman should pay the Commissioner's costs.
40 The Tribunal has considered the Commissioner's schedule of costs and is satisfied that they are reasonable.
Conclusion
41 The Tribunal finds that the risk to the public of further misconduct by Centex and Mr Bantleman is low.
42 However, the breach of an agent's duty to act fairly and honestly in the circumstances of this case was serious. Whilst the Tribunal finds that the breach is at the lower range of seriousness, the circumstances are such that the penalty must be an effective general deterrent and ensure that principals can have confidence that their agents will act fairly and honestly.
43 A period of suspension of four months is appropriate. The Tribunal is satisfied that after a period of suspension, Centex and Mr Bantleman will be fit to resume practice.
44 As Centex's conduct is effectively Mr Bantleman's, the penalty imposed on Mr Bantleman should also be imposed on Centex.
45 The Tribunal has allowed a period before the suspension takes effect so that arrangements may be made to transfer the business of Centex to another agent.
Orders
46 The Tribunal orders that:
1. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman be reprimanded.
2. Centex Australasia Pty Ltd's and Mr Rick Anthony Bantleman's licences and triennial certificates be suspended for four months from 11 April 2016.
3. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman pay the Commissioner for Consumer Protection's costs of $12,782.
I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
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