COMMISSIONER FOR CONSUMER PROTECTION and LUFF HOLDINGS PTY LTD
[2015] WASAT 98
•3 SEPTEMBER 2015
COMMISSIONER FOR CONSUMER PROTECTION and LUFF HOLDINGS PTY LTD [2015] WASAT 98
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 98 | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:152/2015 | DETERMINED ON THE DOCUMENTS | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) | 3/09/15 | |
| 6 | 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 LUFF HOLDINGS PTY LTD |
Catchwords: | Licensed director Person in bona fide control Appointment of supervisor |
Legislation: | Real Estate and Business Agents Act 1978 (WA), s 29, s 93, Pt VI |
Case References: | Nil |
Orders | On the application determined on the documents by the President, Justice Curthoys it is on 3 September 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 three 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 Luff Holdings 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 LUFF HOLDINGS PTY LTD [2015] WASAT 98 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 3 SEPTEMBER 2015 FILE NO/S : VR 152 of 2015 BETWEEN : COMMISSIONER FOR CONSUMER PROTECTION
- Applicant
AND
LUFF HOLDINGS PTY LTD
Respondent
Catchwords:
Licensed director - Person in bona fide control - Appointment of supervisor
Legislation:
Real Estate and Business Agents Act 1978 (WA), s 29, s 93, Pt VI
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 Luff Holdings 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 K King
Respondent : N/A
Solicitors:
Applicant : Department of Commerce
Respondent : N/A
Case(s) referred to in decision(s):
Nil
Introduction
1 On 18 August 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 not being qualified in terms of sections 29(c) and 29(d) of the Real Estate and Business Agents Act 1978 (Act), the Respondent 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 until further notice from the Tribunal;
1.2.2 restraining the Respondent and its servants and agents from dealing in all of the bank accounts related to or for the purpose of the Respondent's practice as an agent until further notice from the Tribunal; and
1.2.3 authorising the Applicant to appoint 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 18 August 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 The respondent, Luff Holdings Pty Ltd (Luff), is a registered company whose current directors are Ms Nataliya Erika Luff and Mr David Anthony Luff (page 3). Luff carries on business as a real estate agent under the business name 'Luff &Barber Real Estate' (page 4).
4 Mrs Luff and Mr Luff both hold a real estate and business sales representative certificate (page 3). Luff holds a real estate and business agent's licence and triennial certificate (page 4).
The Act
5 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 (page 4).
6 Between 14 January 2014 and 10 October 2014, Mr John Noel Glossop was the person in bona fide control of Luff (page 4).
7 On 9 January 2015, Mr Glossop was reappointed as the person in bona fide control and licensed director of Luff. At all material times, Mr Glossop was the holder of a real estate and business agent's licence and triennial certificate (page 4).
8 On 15 May 2015, Mr Glossop emailed Luff advising that he was no longer the person in bona fide control or the licensed director of Luff, effective from 14 May 2015 (page 4).
9 On 22 June 2015, the Commissioner sent a letter to be sent to Luff confirming that Luff had a three month grace period in order to appoint a replacement person in bona fide control and licensed director (page 4).
10 On 13 August 2015, the Commissioner emailed a letter to Luff indicating the Commissioner's intention to make an application to the Tribunal for orders to appoint a supervisor to its business (page 4).
11 Luff has not had a licensed director or a licensed person in bona fide control appointed since 15 May 2015 (page 5).
The Commissioner's Statement of Issues Facts and Contentions
12 On 11 August 2015, Luff's business name was officially cancelled.
13 As at 12 August 2015, Luff had advertised a property for rent and properties for sale on its website.
14 Luff holds a trust account and as at 31 July 2015, the balance totalled $119,245.00.
Analysis
15 Since 15 May 2015, Luff has not had a licensed director or a licensed person in bona fide control and has not been qualified to continue to hold its licence pursuant to s 29(c) and s 29(d) of the Act.
16 Section 29(c) and s 29(d) of the Act provide:
(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.
17 The grace period allowed for Luff to appoint a replacement person in bona fide control and licensed director expired on 14 August 2015.
18 In these circumstances, Luff is not conducting its business in accordance with Act.
19 The Tribunal accepts that it is necessary for the protection of the public that:
1) Luff be suspended from carrying on business;
2) Luff and its servants or agent be restrained from dealing with all of Luff's bank accounts; and
3) A supervisor be appointed pursuant to s 93 of the Act to ensure that the outstanding business of Luff, 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 three days' notice to vary or discharge these orders.
I certify that this and the preceding [19] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUSTICE J C CURTHOYS, PRESIDENT
0
0
1