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COMMISSIONER FOR CONSUMER PROTECTION and DEL VALLE

COMMISSIONER FOR CONSUMER PROTECTION and DEL VALLE

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Case Copied 29 April 2024 50 min read

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: SETTLEMENT AGENTS ACT 1981 (WA)
CITATION:   COMMISSIONER FOR CONSUMER PROTECTION and DEL VALLE [2024] WASAT 36
MEMBER:   MR D AITKEN, SENIOR MEMBER
MS C CONLEY, MEMBER
MR B POUND, SESSIONAL MEMBER

HEARD:   10 APRIL 2024
DELIVERED          :   29 APRIL 2024
FILE NO/S:   VR 55 of 2023
BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION
Applicant
AND
SHANNON MARIE DEL VALLE
Respondent

Catchwords:

Settlement agent - Proper cause for disciplinary action - Contravention of requirements relating to trust accounts - Determination of appropriate penalty - Reprimand and permanent disqualification - Costs

Legislation:

Code of Conduct for Agents and Sales Representatives 2011 (WA), s 7
Criminal Code Act Compilation Act 1913 (WA), s 82
Fair Trading Act 2010 (WA), s 55
Legal Profession Act 2008 (WA) (Repealed)
Legal Profession (State Administrative Tribunal) Determination 2022 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 133, s 299
Real Estate and Business Agents Act 1978 (WA), s 68(4)
Real Estate and Business Agents and Sales Representatives Code of Conduct, s 7
Settlement Agents Act 1981 (WA), s 3(1), s 15, s 26(1), s 27, s 27(2), s 30(1), s 30(2), s 30(3), s, 30(3A)(a) s 30(3a)(a), s 31(1), s 31(2), s 31(2A), s 34(1), s 34(2), s 34AA, s 46(1), s 46(4), s 49, s 49(1), s 49(4), s 49(5), s 49(6), s 65(1)(a), s 74(1), s 83, s 83(2)(b), s 84, s 84(1)(b), s 84(2), s 84(2)(c), s 84(2)(c)(ii), s 84(2)(d), s 85(1)(c), s 120(1),
Settlement Agents Code of Conduct 2016 (WA), r 8, r 14, r 32, cl 5
Settlement Agents Regulations 1982 (WA)
State Administrative Tribunal 2004 (WA), s 9(b), s 63(2), s 87, s 87(1), s 87(2)

Result:

Cause exists for disciplinary action against the respondent and the respondent is reprimanded and permanently disqualified from holding a settlement agent's licence and triennial certificate

Category: B

Representation:

Counsel:

Applicant	:	Mr Saxon King
Respondent	:	No Appearance

Solicitors:

Applicant	:	Department Of Mines, Industry Regulation And Safety – Consumer Protection Division (In House Legal Counsel)
Respondent	:	N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Commissioner for Consumer Protection and Chesson [2014] WASAT 128
Commissioner for Consumer Protection and Sunrun Nominees Pty Ltd [2017] WASAT 31
Grljusich v Andrews [2002] WASCA 206
Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43
Legal Services and Complaints Committee and Butler [2023] WASAT 124
Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179
Medical Board of Australia and Tan [2022] WASAT 57 (S)
Panegyres v Medical Board of Australia [2020] WASCA 58
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)
Real Estate and Business Agents Supervisory Board and Carmello Charles Parrella T/A Charles Parrella & Associates [2008] WASAT 115
Real Estate and Business Agents…

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: [2024] WASAT 36
Decision Date: 29 APRIL 2024

CaseChat Overview and Summary

The Commissioner for Consumer Protection brought proceedings against Del Valle, a settlement agent, before the Consumer Trading Tribunal. The dispute centred around allegations of improper conduct by Del Valle in relation to trust accounts. Specifically, it was claimed that Del Valle had contravened certain statutory requirements designed to safeguard client funds held in trust. The court was tasked with determining whether these allegations were substantiated and, if so, to decide on the appropriate disciplinary measures and penalties.

The legal issues before the tribunal involved the interpretation and application of the statutory provisions governing settlement agents' trust accounts. The tribunal had to assess whether Del Valle's conduct amounted to a breach of these provisions and, if so, to determine the appropriate disciplinary action. This included whether a reprimand, permanent disqualification, or both were warranted, as well as the imposition of costs.

In its decision, the tribunal found that Del Valle had indeed contravened the statutory requirements. The tribunal emphasised the importance of strict compliance with trust account regulations to protect consumers and maintain the integrity of the profession. Consequently, the tribunal imposed a reprimand and ordered Del Valle's permanent disqualification from acting as a settlement agent. Additionally, the tribunal ruled that Del Valle was to bear the costs of the proceedings. This decision underscored the serious nature of breaches in trust account management and the tribunal's commitment to enforcing compliance.

Orders