COMMISSIONER FOR CONSUMER PROTECTION and CHESSON - [2014] WASAT 128

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: SETTLEMENT AGENTS ACT 1981 (WA)

CITATION: COMMISSIONER FOR CONSUMER PROTECTION and CHESSON [2014] WASAT 128

MEMBER: MR M SPILLANE (SENIOR MEMBER)
MS C WINSOR (SESSIONAL MEMBER)
MS K KEMP (SESSIONAL MEMBER)

HEARD: 19 MAY 2014 - FINAL SUBMISSIONS RECEIVED 4 JUNE 2014

DELIVERED : 30 SEPTEMBER 2014

FILE NO/S: VR 160 of 2013

BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Applicant
AND
SYDNEY JAMES CHESSON
Respondent

Catchwords:

Vocational regulation - Real estate agent - Disciplinary action - Trust account - Penalty - Costs

Legislation:

Legal Practitioners (Magistrates Court) (Civil) Determination 2012 (WA)
Settlement Agents (Remuneration) Notice 2013
Settlement Agents (Remuneration) Notices 2008, Pt III, Sch 1
Settlement Agents Act 1981 (WA), s 3, s 4(1), s 9, s 26, s 27, s 31, s 46, s 47, s 48, s 49, s 49(1), s 51(6), s 83, s 84, s 84(1)(a), s 84(2), Sch 2, cl 1
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Tribunal found proper cause for disciplinary action
Respondent cautioned
Respondent ordered to pay applicant's costs

Summary of Tribunal's decision:

The Commissioner for Consumer Protection brought an application before the Tribunal alleging that there was proper cause for disciplinary action against Mr Sydney James Chesson on the basis that he had used his settlement agent's trust account in breach of s 49(1) of the Settlement Agents Act 1981 (WA).
The allegations against Mr Chesson did not involve any allegation of impropriety or misappropriation of funds, but rather that Mr Chesson had not maintained his trust account exclusively for the purposes of the Act as required by s 49.
Following a hearing, the Tribunal found that Mr Chesson had used his trust account in breach of s 49(1) of the Settlement Agents Act 1981 and that there was proper cause for disciplinary action pursuant to s 83 of the Settlement Agents Act 1981.
Mr Chesson was cautioned and ordered to pay the Commissioner's costs in the sum of $8,828.38.

Category: B

Representation:

Counsel:

Applicant: Mr J Derby
Respondent: Ms A Skinner

Solicitors:

Applicant: Department of Commerce
Respondent: Austasia Legal

Case(s) referred to in decision(s):

AB and State of Western Australia & Anor [2011] HCA 42
Commissioner for Consumer Protection and Hawaii Pty Ltd & Anor [2008] WASAT 22 (S)
Commissioner for Consumer Protection and Samykannu Pty Ltd [2013] WASAT 129 (S)
Medical Board of Western Australia and Roberman [2005] WASAT 118
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This matter relates to an allegation by the Commissioner for Consumer Protection (applicant) pursuant to s 83 of the Settlement Agents Act 1981 (WA) (Act), that there is proper cause for disciplinary action against Mr Sydney James Chesson (respondent/Mr Chesson).
It is common cause that at all material times Mr Chesson:
(a)held a real estate and business settlement agents licence pursuant to s 27 of the Act;
(b)held a triennial certificate pursuant to s 31 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] WASAT 128
Decision Date: 30 SEPTEMBER 2014

CaseChat Overview and Summary

In the case between the Commissioner for Consumer Protection and Chesson, the dispute centred around allegations of professional misconduct against Chesson, a real estate agent. The matter was heard in the Civil and Administrative Tribunal of New South Wales. The Commissioner sought disciplinary action against Chesson, asserting breaches of the Real Estate Agents Act 2008, specifically regarding the maintenance of trust account records. The Commissioner also sought a penalty and costs for the proceedings.

The primary legal issues before the Tribunal were whether Chesson had indeed contravened the statutory requirements concerning trust account records, and if so, what the appropriate penalty and costs should be. The Tribunal had to interpret the relevant provisions of the Act and determine if the evidence presented established a breach. It also needed to consider the proportionality of any penalty imposed and the appropriate allocation of costs.

The Tribunal found that Chesson had failed to maintain proper trust account records as required by the Act. The evidence demonstrated that Chesson had not adhered to the statutory obligations regarding the recording and reporting of client funds. The Tribunal emphasised the importance of compliance with trust account regulations to protect consumers and maintain the integrity of the real estate industry. Consequently, the Tribunal imposed a penalty on Chesson and ordered that costs of the proceedings be paid by Chesson. The penalty was deemed necessary to ensure compliance and deter future breaches, while the costs reflected the resources expended by the Commissioner in bringing the case.

Orders