COMMISSIONER FOR CONSUMER PROTECTION and GOLDEN PEARL DEVELOPMENT PTY LTD
[2015] WASAT 18
•3 MARCH 2015
COMMISSIONER FOR CONSUMER PROTECTION and GOLDEN PEARL DEVELOPMENT PTY LTD [2015] WASAT 18
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 18 | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:6/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS R MOORE (MEMBER) MR R ADAMS (SESSIONAL MEMBER) | 3/03/15 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Respondent suspended from carrying on business Respondent and its servants or agent restrained from dealing in all of respondent's bank accounts Supervisor appointed pursuant to s 93 of the Real Estate and Business Agents Act 1978 (WA) | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR CONSUMER PROTECTION GOLDEN PEARL DEVELOPMENT PTY LTD |
Catchwords: | Licensed director Person in bona fide control Appointment of supervisor |
Legislation: | Corporations Act 2001 (Cth) Real Estate and Business Agents Act 1978 (WA), s 26, s 29, s 30, s 93, s 93(1)(c), s 93A, Sch 1, cl 6, Pt 4 State Administrative Tribunal Act 2004 (WA), s 46(1) |
Case References: | Nil |
Orders | On the application determined on the documents by the President, Justice Curthoys, Member Rebecca Moore and Sessional Member Richard Adams, it is on 3 March 2015 ordered that:,1. Pursuant to s 93(1)(a) of the Real Estate and Business Agents Act 1978 (WA), the Respondent be suspended from carrying on its business until further order of the Tribunal.,2. Pursuant to s 93(1)(b) of the Real Estate and Business Agents Act 1978 (WA), the Respondent (whether by its servants and agents) be restrained from dealing in all or any of the bank accounts of the Respondent until further order of the Tribunal.,3. Pursuant to s 93(1)(c) of the Real Estate and Business Agents Act 1978 (WA), the Commissioner for Consumer Protection be authorised to appoint a supervisor to the business of the Respondent.,4. Pursuant to s 93(3)(a) of the Real Estate and Business Agents Act 1978 (WA), any supervisor appointed under order 3 be empowered to withdraw any moneys from any bank account of the Respondent.,5. The Supervisor shall cause a notice to be issued to each financial institution with which the Respondent held an account, informing them of any appointment and the power to transact upon the accounts.,6. The parties have liberty to apply on 3 days' notice to vary or discharge these orders. |
Summary | The Commissioner for Consumer Protection made application to the Tribunal under s 93 of the Real Estate and Business Agents Act 1978 (WA) in relation to Golden Pearl Development Pty Ltd which was carrying on a business as a real estate agent in Western Australia. ,The Tribunal determined that the company was without a licensed director and therefore did not have a licensed person in bona fide control.,In order to protect the public, the Tribunal therefore made orders that the company be suspended from carrying on business; the company's servants or agent be restrained from dealing in all of its bank accounts; and a supervisor be appointed. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and GOLDEN PEARL DEVELOPMENT PTY LTD [2015] WASAT 18 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS R MOORE (MEMBER)
MR R ADAMS (SESSIONAL MEMBER)
- Applicant
AND
GOLDEN PEARL DEVELOPMENT PTY LTD
Respondent
Catchwords:
Licensed director - Person in bona fide control - Appointment of supervisor
Legislation:
Corporations Act 2001 (Cth)
Real Estate and Business Agents Act 1978 (WA), s 26, s 29, s 30, s 93, s 93(1)(c), s 93A, Sch 1, cl 6, Pt 4
State Administrative Tribunal Act 2004 (WA), s 46(1)
Result:
Respondent suspended from carrying on business
Respondent and its servants or agent restrained from dealing in all of respondent's bank accounts
Supervisor appointed pursuant to s 93 of the Real Estate and Business Agents Act 1978 (WA)
Summary of Tribunal's decision:
The Commissioner for Consumer Protection made application to the Tribunal under s 93 of the Real Estate and Business Agents Act 1978 (WA) in relation to Golden Pearl Development Pty Ltd which was carrying on a business as a real estate agent in Western Australia.
The Tribunal determined that the company was without a licensed director and therefore did not have a licensed person in bona fide control.
In order to protect the public, the Tribunal therefore made orders that the company be suspended from carrying on business; the company's servants or agent be restrained from dealing in all of its bank accounts; and a supervisor be appointed.
Category: B
Representation:
Counsel:
Applicant : Ms H Kerr
Respondent : In person
Solicitors:
Applicant : Department of Commerce
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 On 16 January 2015, the Commissioner for Consumer Protection (the Commissioner) made application to the Tribunal under s 93 of the Real Estate and Business Agents Act 1978 (WA) (the Act) for the Tribunal to determine:
1.1. whether, by reason of the Respondent not being qualified in terms of section 29(c) and (d) of the Real Estate and Business Agents Act 1978 (Act) it:
1.1.1. is incapable of properly conducting its business;
1.1.2. alternatively, is not conducting its business in accordance with the Act; and
1.2. whether in those circumstances the Tribunal should make orders pursuant to section 93 of the Act:
1.2.1. suspending the Respondent from carrying on business;
1.2.2. restraining the Respondent (whether by its servants or agents) from dealing in all of the bank accounts in the name of the Respondent; and
1.2.3. for the appointment of a supervisor to the business of the Respondent.
2 The matters set out below are verified by the affidavit of Ms Alissa Michelle Horner, sworn on 16 January 2015, filed in support of the application. References below to page numbers are to page numbers in Ms Horner's affidavit. We have substantially adopted the Commissioner's submissions in these reasons.
3 At all material times, the respondent, Golden Pearl Development Pty Ltd (Golden Pearl), a company incorporated pursuant to the Corporations Act 2001 (Cth), carried on business as a real estate agent in Western Australia under the business name 'Reliance Realty' (page 16).
The Act
4 In order for a corporate body to hold a real estate and business agents licence (licence), one of its directors must hold a personal licence (s 29 of the Act), i.e. a licensed director and the licensed director must be in bona fide control of the business.
5 On 8 March 2002, Golden Pearl was granted a corporate licence and triennial certificate (Number 45768) under the Act (page 26).
6 On 8 August 2008, Mr Hartanto was granted a personal real estate and business agents licence and triennial certificate (Number 58301) (page 28). Therefore he qualified as a licensed director of Golden Pearl and could be in bona fide control.
7 Between 8 August 2008 and 6 October 2011, Mr Hartanto was the sole licensed director and the person in bona fide control of Golden Pearl (page 6).
8 Mr Hartanto's licence and triennial certificate expired on 7 August 2011 (page 6).
9 Mr Hartanto failed to renew his licence and triennial certificate within 60 days of expiration. By operation of s 30(2a)(a) of the Act, Mr Hartanto ceased to be licensed on 6 October 2011.
10 Mr Hartanto lodged an application for his personal licence with the Commissioner on 2 November 2012, (page 30), so that Golden Pearl had a director who held a personal licence and Golden Pearl could continue to hold a corporate licence.
11 Between 6 November 2012 and 5 February 2013 the Commissioner's delegate made a number of requests for Mr Hartanto to provide the required supporting documentation for his personal licence application (pages 38 40).
12 On 20 March 2013, the Commissioner wrote to Mr Hartanto notifying him of her preliminary view of his personal licence application and affording him the opportunity to provide further information in support of his application (page 41).
13 The Commissioner received a response from Mr Hartanto on 11 April 2013 (page 43).
14 On 13 May 2013, the Commissioner wrote to Mr Hartanto affording him a further opportunity to provide additional material in support of his licence application (page 45).
15 On 20 May 2013, Mr Hartanto's solicitors provided a response to the Commissioner (page 47).
16 On 7 June 2013, the Commissioner notified Mr Hartanto that his personal application was refused (page 51). The effect of this was that Mr Hartanto was not able to be a licensed director of Golden Pearl and therefore not able to be in bona fide control.
17 On 11 June 2013, the Commissioner wrote to Golden Pearl advising it that should no new licensed director and a person in bona fide control be appointed within two weeks of the date of the letter, the Commissioner would make an application to the Tribunal to appoint a supervisor to Golden Pearl's business pursuant to s 93A of the Act (page 53). The letter relevantly stated:
Given that the agency has been operating without meeting the requirements of sections 29(c) and (d) of the Act for a period of more than two years, please be advised that, if a new licensed director and person in bona fide control has not been appointed, and notification of such provided to me within two weeks of the date of this letter, I intend to make an application to the State Administrative Tribunal to appoint a Supervisor to conclude the business of Golden Pearl Developments Pty Ltd pursuant to section 93 of the Act.
18 At the relevant times, Ms Mary Piraino held a real estate and business agents licence and triennial certificate (Number 42493) (page 8). Accordingly, she was able to be a licensed director of Golden Pearl and in bona fide control.
19 On 20 June 2013, the Commissioner received an email from Ms Piraino advising that she had been appointed as the person in bona fide control of Golden Pearl (page 54).
20 On 1 July 2013, Ms Piraino notified the Commissioner that she was no longer the person in bona fide control of Golden Pearl (page 56).
21 Ms Piraino was never reflected on the Australian Securities Investment Commission register as a director of Golden Pearl (page 8).
22 On 22 July 2013, an application was filed with the Tribunal on behalf of the Commissioner to apply for an order to suspend Golden Pearl from carrying on business and to appoint a supervisor under s 93(1)(c) of the Act (page 8).
23 At the relevant times, Mr Lyndon Rodgers held a real estate and business agents licence and triennial certificate (Number 3242) (page 8). Accordingly, he was able to be a licensed director of Golden Pearl and in bona fide control.
24 On 22 July 2013, Mr Rodgers notified the Commissioner that he had been appointed as the licensed director and person in bona fide control of Golden Pearl (page 58).
25 On 29 July 2013, the Commissioner received a letter from Golden Pearl's lawyer, Rockwell Oliver, providing formal notification that Mr Rodgers was appointed as the licensed director and person in bona fide control of Golden Pearl (page 70).
26 On 5 August 2013, the Commissioner was granted leave to withdraw the proceedings filed in the Tribunal on 22 July 2013 (page 82).
27 On 11 November 2013, the Commissioner (through her delegate) received an email from Mr Hartanto notifying her that Mr Rodgers was no longer the person in bona fide control of Golden Pearl effective from 12 November 2013 (page 83).
28 On 12 November 2013, the Commissioner received a letter from Mr Rodgers notifying her that he was no longer the person in bona fide control of Golden Pearl (page 84).
29 On 22 November 2013, the Commissioner wrote a letter to Golden Pearl confirming that the Commissioner has given Golden Pearl from 12 November 2013 until 9 February 2014 to appoint a replacement person in bona fide control and as a licensed director (page 88).
30 At the relevant times, Mr Eliahu Zohar held a real estate and business agents licence and triennial certificate (Number 1461) (page 10). Accordingly, he was able to be a licensed director of Golden Pearl and in bona fide control.
31 On 4 February 2014, the Commissioner received an email from Mr Hartanto advising that he has appointed Mr Zohar as the licensed director and person in bona fide control of Golden Pearl (page 89).
32 On 10 February 2014, a renewal notice was issued to Golden Pearl reminding it of its obligations under the Act to renew Golden Pearl's triennial certificate before the date of expiry on 4 March 2014 (page 102).
33 Golden Pearl's licence has been in force since its initial grant and expired on 7 March 2014 (page 10).
34 On 19 March 2014, Mr Zohar notified the Commissioner that he was no longer the person in bona fide control and licensed director of Golden Pearl (page 104).
35 On 20 March 2014, the Commissioner wrote to Golden Pearl indicating her intention to make an application to the Tribunal for orders to appoint a supervisor to the business as Golden Pearl has not complied with the requirements of the Act in that it did not have a licensed director (page 107).
36 At the relevant times, Mr Clive Robert Elliott held a real estate and business agents licence and triennial certificate (Number 1479) (page 10). Accordingly, he was qualified to be a licensed director of Golden Pearl and in bona fide control.
37 On 31 March 2014, Golden Pearl applied to the Commissioner to renew its triennial certificate (page 112).
38 The renewal application stated that Mr Elliott had been appointed as Golden Pearl's licensed director and person in bona fide control (page 112).
39 On 28 April 2014, the Commissioner informed Golden Pearl of her preliminary view to refuse the application on the basis that she was no longer satisfied that Golden Pearl met the requirements of s 29 of the Act as she formed the view that Mr Hartanto was not a person of good character and repute and not a person fit to be concerned as a director of, or in the management or control of, an agent's business (page 127).
40 On 15 May 2014, a reply dated 12 May 2014 was received from the Golden Pearl's lawyer, Rockwell Oliver, confirming that Mr Hartanto would be removed as a director of Golden Pearl and would not be concerned in the management or conduct of Golden Pearl (page 130).
41 Effective from 12 May 2014, Mr Hartanto ceased as a director of Golden Pearl on the ASIC register.
42 On 20 May 2014, further information was received from Golden Pearl's lawyer, Rockwell Oliver, in a letter dated 19 May 2014, in respect of Golden Pearl's renewal application.
43 Based on this further information, the Commissioner approved Golden Pearl's renewal of its triennial certificate.
44 On 29 August 2014, Mr Elliott ceased as a director of Golden Pearl on the ASIC register (page 10).
45 On the same day, Mr Hartanto reappointed himself as a director of Golden Pearl on the ASIC register (page 10).
46 On 4 December 2014, the Commissioner wrote to Golden Pearl indicating the Commissioner's intention (if the licence and triennial certificate were not surrendered) to make an application to the Tribunal for orders to appoint a supervisor to the business (page 121).
47 On 5 December 2014, Mr Elliott reappointed himself as a director of Golden Pearl on the ASIC register (page 11).
48 On 8 January 2015, the Commissioner received a call from Mr Elliott advising that he had lodged paperwork with ASIC in order to remove himself as a director of Golden Pearl effective from 5 December 2014 (page 11).
49 Effective from 5 December 2014 Mr Elliott was removed as a director of Golden Pearl, however, Mr Elliott remained the person in bona fide control of Golden Pearl (page 11).
50 On 9 January 2015, the Commissioner wrote to Golden Pearl indicating the Commissioner's intention (if the licence and triennial certificate were not surrendered) to make an application to the Tribunal for orders to appoint a supervisor to the business (page 123).
51 On 12 January 2015, the Commissioner received an email:
a) from Mr Hartanto advising that Mr Elliott had ceased in the capacity of licensed director and person in bona fide control of Golden Pearl (page 125); and
b) from Mr Elliott advising that he had ceased in the capacity as the person in bona fide control and licensed director of Golden Pearl (page 126).
52 On 19 January 2015, Mr Hartanto swore a statutory declaration surrendering Golden Pearl's licence and triennial certificate. He stated that he was unable to find the original documents.
Procedural background
53 On 29 January 2015, the application was listed for interim orders.
54 Mr Hartanto appeared on behalf of Golden Pearl. Mr Hartanto did not oppose the orders sought by the Commissioner. The following orders were made:
1. Pursuant to s 93(1)(a) of the Real Estate and Business Agents Act 1978 (Act) the Respondent be suspended from carrying on its business until further order of the Tribunal.
2. Pursuant to s 93(1)(b) of the Act, the Respondent and its servants and agents be restrained from dealing with all or any of the bank accounts of the Respondent until further order of the Tribunal.
3. The parties have liberty to apply.
4. The final matter will be dealt with on the documents.
Analysis
55 Section 26 of the Act provides that a person shall not carry on business as a real estate agent, or a business agent, or both unless the person is licensed under the Act and hold a current triennial certificate.
56 Section 29(c) of the Act provides that a body corporate may continue to hold a licence provided that where there are not more than three directors of the body corporate, at least one director must be personally licensed under the Act.
57 Golden Pearl has not had a licensed director appointed within the corporate structure since 29 August 2014. A licensed director was not appointed to Golden Pearl on 5 December 2014 as this director also ceased to be a director on the same day.
58 Pursuant to Schedule 1 cl 6 of the Act, Golden Pearl had the ability to continue to carry on the business for a period of three months without having a licensed director appointed within the corporate structure, from 30 August 2014 until 30 November 2014.
59 Section 29(a), (c) and (d) of the Act provides that a body corporate may hold a licence if the Commissioner is satisfied that:
(a) all of the directors of the body corporate, and all of the persons concerned in the management or conduct of the body corporate, are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, an agent’s business; and
…
(c) unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is licensed or where there are more than 3 directors of the body corporate at least 2 of them are licensed; and
(d) the person in bona fide control of the business operated under the licence is licensed.
60 Section 30 of the Act provides that:
…
(2a) A licensee ceases to be licensed if the licensee -
(a) does not hold a current triennial certificate in respect of the licence; and
(b) does not pay to the Commissioner in accordance with the regulations the fee prescribed for the purposes of this subsection.
(3) A person may at any time surrender a licence and any triennial certificate in respect thereof, held by him and shall do so if he ceases to have the qualifications for holding the licence.
61 Golden Pearl has not been qualified to continue to hold its licence pursuant to s 29(c) of the Act in that its sole director (Mr Hartanto) has not held a licence since 1 December 2014.
62 In these circumstances, Golden Pearl is not conducting its business in accordance with Act.
63 The Tribunal accepts that it is necessary for the protection of the public that:
1) Golden Pearl be suspended from carrying on business;
2) Golden Pearl and its servants or agent be restrained from dealing in all of Golden Pearl's bank accounts; and
3) A supervisor be appointed pursuant to s 93 of the Act to ensure that the outstanding business of Golden Pearl, in particular the payment of monies owed to clients of the business and the audit of the trust account of the business, is completed in accordance with the requirements of Pt VI of the Act.
Orders
1. Pursuant to s 93(1)(a) of the Real Estate and Business Agents Act 1978 (WA), the Respondent be suspended from carrying on its business until further order of the Tribunal.
2. Pursuant to s 93(1)(b) of the Real Estate and Business Agents Act 1978 (WA), the Respondent (whether by its servants and agents) be restrained from dealing in all or any of the bank accounts of the Respondent until further order of the Tribunal.
3. Pursuant to s 93(1)(c) of the Real Estate and Business Agents Act 1978 (WA), the Commissioner for Consumer Protection be authorised to appoint a supervisor to the business of the Respondent.
4. Pursuant to s 93(3)(a) of the Real Estate and Business Agents Act 1978 (WA), any supervisor appointed under order 3 be empowered to withdraw any moneys from any bank account of the Respondent.
5. The Supervisor shall cause a notice to be issued to each financial institution with which the Respondent held an account, informing them of any appointment and the power to transact upon the accounts.
6. The parties have liberty to apply on 3 days' notice to vary or discharge these orders.
I certify that this and the preceding [63] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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