COMMISSIONER FOR CONSUMER PROTECTION and NEWYEAR HOLDINGS PTY LTD

Case •

[2020] WASAT 97

•

1 MAY 2020

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

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

CITATION:   COMMISSIONER FOR CONSUMER PROTECTION and NEWYEAR HOLDINGS PTY LTD [2020] WASAT 97

MEMBER:   JUSTICE PRITCHARD, PRESIDENT

HEARD:   1 MAY 2020

DELIVERED          :   1 MAY 2020

PUBLISHED           :   19 AUGUST 2020

FILE NO/S:   VR 72 of 2019

BETWEEN:   COMMISSIONER FOR CONSUMER PROTECTION

Applicant

AND

NEWYEAR HOLDINGS PTY LTD

Respondent


Catchwords:

Application to transfer moneys held by supervisor to Commissioner for Consumer Protection where supervision concluded - Where moneys remaining unclaimed - Whether s 98 or s 93 of the Real Estate and Business Agents Act 1973 (WA) applies - Where supervisor transferred funds of agent to own trust account - Whether order should be made transferring funds to Commissioner for Consumer Protection - Discharge of supervisor

Legislation:

Financial Management Act 2006 (WA), s 16
Real Estate and Business Agents Act 1978 (WA), Pt 6, s 93, s 98
Unclaimed Money Act 1990 (WA)

Result:

Application allowed
Supervisor discharged

Category:    B

Representation:

Counsel:

Applicant : Ms H Kerr
Respondent : No Appearance

Solicitors:

Applicant : In Person
Respondent : No Appearance

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


Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered orally and have been edited from the transcript of the hearing.)

Introduction

  1. On 11 June 2019, the Tribunal made orders authorising the Commissioner for Consumer Protection (Commissioner) to appoint a supervisor of Newyear Holdings Pty Ltd (Newyear Holdings).  Newyear Holdings is a company which is now in liquidation. 

  2. On 19 June 2019, in accordance with those orders, the Commissioner appointed Mr Robert Allan Jacobs as the supervisor of Newyear Holdings (supervisor).  Mr Jacobs has completed his duties as a supervisor.  However, funds remain in the bank accounts maintained by the supervisor for his supervision of Newyear Holdings, which funds had previously been held in the trust accounts maintained by Newyear Holdings (remaining funds). 

The application

  1. The Tribunal has before it an application by the Commissioner to permit the supervisor to be discharged and to address what is to occur in relation to the remaining funds (Application).  The liquidator of Newyear Holdings has indicated that he does not wish to be heard on the Application.

  2. For the reasons which follow, I will make orders authorising the Commissioner to take possession of the remaining funds, and for the Commissioner to deal with the remaining funds according to law.

The evidence received in support of the Application

  1. For the purposes of the Application, the Commissioner relies on the affidavit of Mr Jacobs, sworn 2 April 2020, and the affidavit of Mr Timothy Ray Banfield, sworn 23 April 2020.

  2. In his affidavit, Mr Jacobs deposed that following his appointment as supervisor, he transferred funds from the trust accounts held by Newyear Holdings into his own trust accounts and held the funds there.[1]  Since then, Mr Jacobs has endeavoured to ascertain the persons who are entitled to make a claim to various amounts within those funds but has been unable to do so, despite his best endeavours.[2] 

    [1] Affidavit of Robert Allan Jacobs, sworn 2 April 2020 [8].

    [2] Affidavit of Robert Allan Jacobs, sworn 2 April 2020 [21].

  3. Some of the individual amounts involved, which comprised the totals of the various trust accounts maintained by Newyear Holdings, were very modest.  However, the total held in all of the trust accounts amounted to $24,133.30.[3] 

    [3] Affidavit of Robert Allan Jacobs, sworn 2 April 2020 [19].

  4. In addition, counsel for the Commissioner filed helpful submissions in relation to the Application which deal with the legislative framework for the Application.  I note that the Application appears to be the first of its kind made to the Tribunal.

The applicable legislative scheme

  1. The appointment of a supervisor to deal with the business of a real estate agent is dealt with in Pt 6 of the Real Estate and Business Agents Act 1978 (WA) (REBA Act). Section 93(1) of the REBA Act provides for the appointment of a supervisor. There are various provisions, namely s 93 to s 98 of the REBA Act, which support the exercise of functions by the supervisor.

  2. The situation where there are funds which remain unaccounted for at the completion of a supervisor's duties or, alternatively, where there are funds which need to otherwise be dealt with, is addressed in two provisions within Pt 6 of the REBA Act, namely s 93(3) and s 98.

  3. It is convenient to deal first with s 98 of the REBA Act, and in particular s 98(2). Section 98 of the REBA Act provides:

    (1)The State Administrative Tribunal may, on the application of the Commissioner, the Treasurer, or the agent, or the personal representative of a deceased agent, referred to in an order made under the provisions of section 92, 93, or 97 make further orders -

    (a)discharging or varying any order so made; and

    (b)directing that any moneys in any account affected by an order so made shall be paid to the Treasurer by the bank or other body on such terms and conditions as the State Administrative Tribunal thinks fit.

    (2)The Treasurer, on receiving moneys paid pursuant to an order made under subsection (1)(b) -

    (a)shall cause the moneys to be credited to a separate Treasurer’s special purpose account established under section 10 of the Financial Management Act 2006; and

    (b)may prepare a scheme for distributing the moneys as compensation to each person who claims compensation at any time within 6 months after the Treasurer receives the money, and proves to the satisfaction of the Treasurer that the person has, in respect of any transaction or prospective transaction, sustained loss through any act or omission of the agent, or deceased agent or his personal representative, in respect of whose accounts the order was made; and

    (c)may, if the moneys are not sufficient to pay all proved claims, apportion the moneys among claimants in proportion to their proved claims and show in the scheme for distribution how the moneys are so apportioned.

    (3)Where the Treasurer prepares a scheme for distribution he shall apply to the State Administrative Tribunal for approval of the scheme and for directions in respect thereof.

    (4)The State Administrative Tribunal may give such directions in respect of the separate Treasurer’s special purpose account, the moneys standing to the credit of the account, the persons to whom and in what amounts the whole or any portion of the moneys standing to the credit of the account shall be paid by the Treasurer, and as to the payment of the balance of the moneys then standing to the credit of the account, if any, as it thinks fit.

  4. Having looked at the totality of that section, it is apparent, on its face, that it is not applicable in the present circumstances. Section 98 of the REBA Act appears to be directed to a situation where there are moneys which are available from the real estate agent's bank accounts, which will not be sufficient to meet any claims for compensation, and a process is established, under that section, whereby the Treasurer will be able to prepare a scheme for the distribution of those moneys. That is not the factual premise of the present case.

  5. I turn, next, to s 93 of the REBA Act. Section 93 of the REBA Act provides:

    (1)Where the State Administrative Tribunal, on the application of the Commissioner, notice whereof shall be given to the agent, is satisfied that there are reasonable grounds for believing that an agent is, for any reason incapable of properly conducting his business, or is not conducting it in accordance with this Act, the State Administrative Tribunal may -

    (a)suspend the agent from carrying on his business for such period as may be specified in the order; and

    (b)restrain the agent and his bankers and their respective servants and agents from dealing in all or any of the bank accounts of the agent, subject to such terms and conditions as the State Administrative Tribunal thinks fit; and

    (c)authorise the Commissioner to appoint a supervisor of the business of the agent; and

    (d)authorise the Commissioner to suspend the agent from carrying on his business until further notice; and

    (e)make such other and further orders as the State Administrative Tribunal thinks fit.

    (2)Where the State Administrative Tribunal is satisfied, on the application of the Commissioner, that a sole agent has died, the State Administrative Tribunal may -

    (a)restrain the personal representative, and the former servants, agents, and bankers, of the deceased agent, and the servants and agents of those former bankers from dealing in all or any of the bank accounts of the deceased agent, subject to such terms and conditions as the State Administrative Tribunal thinks fit; and

    (b)authorise the Commissioner to appoint a supervisor of the business of the agent.

    (3)Where the State Administrative Tribunal authorises the Commissioner to appoint a supervisor pursuant to the power conferred by subsection (1) or (2) the State Administrative Tribunal -

    (a)may order that the supervisor be empowered to withdraw moneys from any bank account of the agent or deceased agent; and

    (b)may order that the Commissioner -

    (i)take possession of the moneys constituting the trust account of the agent or deceased agent or, where the case requires, the balance of such moneys; and

    (ii)credit such moneys or such balance to a separate agency special purpose account established for the Commissioner under section 16 of the Financial Management Act 2006; and

    (iii)deal with those moneys according to law.

    (4)If an order is made under subsection (3)(b) -

    (a)the Commissioner may, on the certificate of the supervisor, pay to him or as he directs in the certificate, out of the moneys credited to the separate agency special purpose account under the order, such amount or amounts as are specified in the certificate, without enquiring as to, or being liable in respect of, the correctness of the certificate or the application of any money paid on the certificate; and

    (b)the State Administrative Tribunal may, on the application of the Commissioner, or any person interested, give such directions as the State Administrative Tribunal thinks fit for the payment by the Commissioner of any part of the moneys credited to the separate agency special purpose account under the order.

  6. I am satisfied, having regard to the submissions of the applicant, the legislative history, the second reading speech for the Real Estate and Business Agents Bill 1978 (WA) (to the extent that it contains any helpful information)[4] and to the terms of s 93, that the present situation is governed by s 93(3) of the REBA Act.

    [4] Second reading speech, Real Estate and Business Agents Bill 1978 (Western Australia, Parliamentary Debates, Legislative Assembly, 20 April 1978, p 999-1002).

  7. Section 93(3)(b) provides that where the Tribunal has authorised the Commissioner to appoint a supervisor, the Tribunal may order that the Commissioner take possession of the moneys constituting the trust account of the agent, or the balance of such moneys; credit such moneys, or such balance, to a separate agency's special purpose account established for the Commissioner under s 16 of the Financial Management Act 2006 (WA); and that the Commissioner then deal with those moneys according to law.[5]

Should the remaining funds, held by the supervisor, be transferred to the Commissioner pursuant to s 93(3) of the REBA Act?

[5] Real Estate and Business Agents Act 1978 (WA) s 93(3)(b)(i)-(iii).

  1. As I have observed, the moneys which remain in the possession of the supervisor formerly constituted moneys in the trust accounts maintained by Newyear Holdings. For the purposes of the present application, I am content to deal with those moneys as if they are moneys that constitute moneys from the trust account of the agent, even though they have, in the interim, been held in the supervisor's account.

  2. On that basis, the position under s 93(3) of the REBA Act, is that the Commissioner will be entitled to take possession of the remaining funds and then, by virtue of putting the remaining funds in a separate agency special purpose account to be dealt with according to law, it will possible for any person having a proper claim to entitlement to any part of those funds to make a claim to the Commissioner. Alternatively, in the absence of any such claim being made, it will be open for the remaining funds to be dealt with under the provisions of the Unclaimed Money Act 1990 (WA). It is not necessary, in my view, to delve too deeply into how that process may occur. For present purposes, it sufficies to say that the provisions of the Unclaimed Money Act will, ultimately, permit the payment of any remaining funds to the Treasurer, to be dealt with in the same way that other unclaimed moneys are dealt with under that legislation.

  3. In those circumstances, therefore, I propose to make orders that will require the transfer of the remaining funds held by the supervisor, which is the balance of the money previously held in the trust accounts of Newyear Holdings, to the Commissioner. The remaining funds are to be held in a special purpose account, which, according to the affidavit of Mr Banfield, is maintained by the Department of Mines, Industry Regulation and Safety, pursuant to s 16 of the Financial Management Act. That account holds funds for the Commissioner in respect of the REBA Act. Once transferred to that account the remaining funds are to be dealt with according to law.

  4. I will also make an order which will permit the discharge of the supervisor.

Orders

The Tribunal orders that:

1.Pursuant to s 93(3)(b)(i) of the Real Estate and Business Agents Act 1978 (WA) (Act), the applicant is to take possession of the balance of the moneys which previously constituted the trust accounts of the respondent and which are held by the supervisor.

2.In furtherance of order 1, on or before 5 May 2020, the supervisor is to transfer to the applicant the following moneys which were drawn from the respondent's trust accounts:

Account name:       Handle Realty REBA Rental Trust               Account TC66176 - Supervisor   Account

BSB:[redacted]

Account number:     [redacted]

Balance:$2,143.30

Account name:       Handle Realty REBA Sales Trust                 Account TC66176 - Supervisor   Account

BSB:[redacted]

Account number:     [redacted]

Balance:$16,990.00

Account name:       Handle Realty REBA FIRB Trust                 Account TC66176 - Supervisor   Account

BSB:[redacted]

Account number:     [redacted]

Balance:$5,000.00

3.Pursuant to s 93(3)(b)(ii) of the Act, the applicant is to credit the moneys referred to in orders 1 and 2 to the following special purpose account established under s 16 of the Financial Management Act 2006 (WA):

Account Name:      Department of Mines, Industry                     Regulation and Safety

BSB:[redacted]

Account Number:    [redacted]

and is thereafter to deal with those moneys according to law.

4.Pursuant to s 93(1)(e) of the Act, upon payment of the moneys by the supervisor to the applicant in accordance with order 2, the applicant is authorised to discharge the supervisor's appointment.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

EH
Associate to the Honourable Justice Pritchard

19 AUGUST 2020


Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

0

Statutory Material Cited

3