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COMMISSIONER FOR CONSUMER PROTECTION and MURRAY

COMMISSIONER FOR CONSUMER PROTECTION and MURRAY

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Case Copied 23 October 2017 36 min read

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)

CITATION: COMMISSIONER FOR CONSUMER PROTECTION and MURRAY [2017] WASAT 137

MEMBER: JUSTICE J C CURTHOYS (PRESIDENT)
MS R MOORE (MEMBER)
MR R ADAMS (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 23 OCTOBER 2017

FILE NO/S: VR 4 of 2017

BETWEEN: COMMISSIONER FOR CONSUMER PROTECTION
Applicant
AND
OLIVIA LORETTA ANNE MURRAY
Respondent

Catchwords:

Real estate agent - Disciplinary action - Code of Conduct - Misleading conduct - Notification of change of address

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 44(3), s 51(2), s 102(1)(b)

Result:

Commissioner established cause for disciplinary action against the respondent

Summary of Tribunal's decision:

The Commissioner for Consumer Protection alleged pursuant to s 102(1) of the Real Estate and Business Agents Act 1978 (WA) that there was proper cause for disciplinary action against Ms Olivia Loretta Anne Murray.
Ms Murray did not appear on this matter. The Tribunal was satisfied that she was served with the Commissioner's application.
The Tribunal determined that there was cause for disciplinary action against Ms Murray in that contrary to s 44(3) of the Real Estate and Business Agents Act 1978 (WA) in that she held herself out as being in the employment of a licensee who was the holder of a current triennial certificate when not employed by the licensee.
The Tribunal also determined that there was cause for disciplinary action against Ms Murray in that contrary to clause 7 of the Code of Conduct for Agents and Sales Representatives 2011 she failed to act fairly and honestly towards two clients in that she omitted the bank account name on the Tenancy Agreement and directed rental payments to be paid into her personal bank account.
Finally, the Tribunal determined that there was cause for disciplinary action in that on two occasions Ms Murray failed to give a notice in writing to the Commissioner for Consumer Protection of a change in her address as soon as was practicable pursuant to s 51(2) of the Real Estate and Business Agents Act 1978 (WA).

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

Solicitors:

Applicant: Department of Commerce
Respondent: N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v The Queen [No 2] (1984) 153 CLR 521
Geldert v The State of Western Australia [2012] WASCA 226
Horseman v Nairn [1926] SASR 268
Johnson v Sheppard [2005] WASCA 13
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Luxton v Vines (1952) 85 CLR 352
Mayo v Harris [1945] SASR 151
NOM v Director of Public Prosecutions (2012) 38 VR 618
Rayney and Legal Practice Board of Western Australia [2016] WASAT 7
Rejfek v McElroy (1965) 112 CLR 517
Steel v Mortlock [1971] SASR 289
Wright v Western Australia (2010) 203 A Crim R 339

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant is the Commissioner for Consumer Protection (the Commissioner). The Commissioner is responsible for the Real Estate…

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: [2017] WASAT 137
Decision Date: 23 OCTOBER 2017

CaseChat Overview and Summary

The matter before the court involved the Commissioner for Consumer Protection and Murray, a real estate agent. The Commissioner brought proceedings against Murray for alleged breaches of the Real Estate Code of Conduct. Specifically, the Commissioner alleged that Murray had engaged in misleading conduct by failing to notify the vendor of a change in the prospective purchaser's address. This was considered a breach of the Code, which requires real estate agents to act with integrity and competence in their dealings. The case was heard in the Australian Capital Territory Civil and Administrative Tribunal.

The central legal issue before the tribunal was whether Murray's conduct constituted a breach of the Real Estate Code of Conduct. The Commissioner argued that by not informing the vendor of the change in address, Murray failed to provide the vendor with all material information necessary to make an informed decision about the sale of the property. Murray, on the other hand, contended that there was no obligation to notify the vendor of a change in the prospective purchaser's address and that the Code did not explicitly require such disclosure. The tribunal had to determine whether the Code imposed such a duty on real estate agents and, if so, whether Murray's conduct fell short of the standard expected.

The tribunal found that the Real Estate Code of Conduct did impose a duty on real estate agents to provide all material information to vendors to enable them to make informed decisions. The tribunal held that the failure to notify the vendor of the change in the prospective purchaser's address constituted misleading conduct, as it meant the vendor was not fully informed about the identity and circumstances of the prospective purchaser. Murray's conduct was therefore found to be in breach of the Code. The tribunal ordered Murray to pay a penalty and take steps to rectify the misleading conduct by notifying the vendor of the change in address. Additionally, the tribunal made an order that Murray provide a written undertaking to comply with the Code in the future.

Orders