COMMISSIONER FOR CONSUMER PROTECTION and SUNRUN NOMINEES PTY LTD
[2017] WASAT 31
•17 FEBRUARY 2017
COMMISSIONER FOR CONSUMER PROTECTION and SUNRUN NOMINEES PTY LTD [2017] WASAT 31
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2017] WASAT 31 | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:45/2015 | 9 DECEMBER 2016 | |
| Coram: | JUSTICE J C CURTHOYS (PRESIDENT) MS H LESLIE (MEMBER) MR G POTTER (SENIOR SESSIONAL MEMBER) | 17/02/17 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Second respondent's real estate sales representative's licence suspended for three months Second respondent fined $12,000 | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER FOR CONSUMER PROTECTION SUNRUN NOMINEES PTY LTD FRANK ANDREW TORRE MARK GEORGE JOSEPH BURNS |
Catchwords: | Dishonest conduct Payment of commission prior to settlement |
Legislation: | Real Estate and Business Agents Act 1987 (WA), s 61(4). s 68(4), s 68A, s 101(1)(a), s 103 Settlement Agents Act 1981 (WA), s 83 |
Case References: | A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 Barwick v Council of the Law Society of NSW [2004] NSWCA 32 Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 Craig v Medical Board of South Australia (2001) 79 SASR 545 Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992) Law Society of New South Wales v Foreman (1994) 34 NSWLR Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) Legal Profession Complaints Committee and Leask [2010] WASAT 133 Legal Profession Complaints Committee and Wells [2014] WASAT 112 Legal Profession Complaints Committee v Brickhill [2013] WASC 369 Legal Profession Complaints Committee v Detata [2012] WASCA 2014 Legal Profession Complaints Committee v Love [2014] WASC 389 Legal Profession Complaints Committee v Masten [2011] WASC 71 Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 Legal Profession Complaints Committee v Segler [2014] WASC 159 Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 New South Wales Bar Association v Evatt (1968) 117 CLR 177 New South Wales Bar Association v Maddocks [1988] NSWCA 102 NSW Bar Association v Hamman [1999] NSWCA 404 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Quinn v Law Institute of Victoria [2007] VSCA 122 Re A Practitioner (1984) 36 SASR 590 Re H (a Barrister) [1981] 1 WLR 1257 Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 |
Orders | 1. The second respondent's, Mr Frank Andrew Torre's licence as a real estate sales representative under the Real Estate and Business Agents Act 1978 (WA) is suspended for a period of three months commencing at midnight on 3 March 2017.,2. Mr Frank Andrew Torre is fined $12,000.,2. Mr Frank Andrew Torre is to pay the Commissioner for Consumer Protection's costs of $4,884. |
Summary | These reasons concerned the appropriate penalty to be imposed on the second respondent, Mr Frank Andrew Torre, a real estate sales representative under the Real Estate and Business Agents Act 1978 (WA) (REBA Act).,Mr Torre engaged in dishonest conduct involving multiple, serious breaches of the REBA Act and the Code of Conduct for Agents and Sales Representatives 2011.,Although the Tribunal was satisfied that Mr Torre had taken steps to ensure that these breaches do not occur again, as a matter of general deterrence to protect the public, the Tribunal determined that Mr Torre's licence as a real estate sales representative be suspended for a period of three months, he be fined $12,000 and he was ordered to pay the Commissioner for Consumer Protection's costs. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : COMMISSIONER FOR CONSUMER PROTECTION and SUNRUN NOMINEES PTY LTD [2017] WASAT 31 MEMBER : JUSTICE J C CURTHOYS (PRESIDENT)
- MS H LESLIE (MEMBER)
MR G POTTER (SENIOR SESSIONAL MEMBER)
- Applicant
AND
SUNRUN NOMINEES PTY LTD
First Respondent
FRANK ANDREW TORRE
Second Respondent
MARK GEORGE JOSEPH BURNS
Third Respondent
Catchwords:
Dishonest conduct - Payment of commission prior to settlement
Legislation:
Real Estate and Business Agents Act 1987 (WA), s 61(4). s 68(4), s 68A, s 101(1)(a), s 103
Settlement Agents Act 1981 (WA), s 83
Result:
Second respondent's real estate sales representative's licence suspended for three months
Second respondent fined $12,000
Summary of Tribunal's decision:
These reasons concerned the appropriate penalty to be imposed on the second respondent, Mr Frank Andrew Torre, a real estate sales representative under the Real Estate and Business Agents Act 1978 (WA)(REBA Act).
Mr Torre engaged in dishonest conduct involving multiple, serious breaches of the REBA Act and the Code of Conduct for Agents and Sales Representatives 2011.
Although the Tribunal was satisfied that Mr Torre had taken steps to ensure that these breaches do not occur again, as a matter of general deterrence to protect the public, the Tribunal determined that Mr Torre's licence as a real estate sales representative be suspended for a period of three months, he be fined $12,000 and he was ordered to pay the Commissioner for Consumer Protection's costs.
Category: B
Representation:
Counsel:
Applicant : Mr J Derby
First Respondent : N/A
Second Respondent : In Person
Third Respondent : N/A
Solicitors:
Applicant : State Solicitor's Office
First Respondent : N/A
Second Respondent : N/A
Third Respondent : N/A
Case(s) referred to in decision(s):
A Solicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253
Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438
Barwick v Council of the Law Society of NSW [2004] NSWCA 32
Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54
Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62
Craig v Medical Board of South Australia (2001) 79 SASR 545
Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)
Law Society of New South Wales v Foreman (1994) 34 NSWLR
Law Society of New South Wales v Walsh [1997] NSWCA 185
Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)
Legal Profession Complaints Committee and Leask [2010] WASAT 133
Legal Profession Complaints Committee and Wells [2014] WASAT 112
Legal Profession Complaints Committee v Brickhill [2013] WASC 369
Legal Profession Complaints Committee v Detata [2012] WASCA 2014
Legal Profession Complaints Committee v Love [2014] WASC 389
Legal Profession Complaints Committee v Masten [2011] WASC 71
Legal Profession Complaints Committee v O'Halloran [2013] WASC 430
Legal Profession Complaints Committee v Segler [2014] WASC 159
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279
New South Wales Bar Association v Evatt (1968) 117 CLR 177
New South Wales Bar Association v Maddocks [1988] NSWCA 102
NSW Bar Association v Hamman [1999] NSWCA 404
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Quinn v Law Institute of Victoria [2007] VSCA 122
Re A Practitioner (1984) 36 SASR 590
Re H (a Barrister) [1981] 1 WLR 1257
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308
Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159
Introduction
1 These reasons concern the appropriate penalty to be imposed on Mr Frank Andrew Torre, a real estate sales representative under the Real Estate and Business Agents Act 1978 (WA) (the REBA Act).
2 The proceedings were commenced against three parties. Sunrun Nominees Pty Ltd (Sunrun), which held a real estate agent's licence and a triennial certificate, consented to orders against it which are set out below. Similarly, Mr Mark George Joseph Burns, who held a real estate agent's licence and a triennial certificate, and who was in bona fide control of Sunrun, consented to orders against him, which are set out below. Mr Torre was effectively the sales representative for Sunrun. He was also a director and shareholder of Sunrun. His wife was the other director and shareholder.
The agreed facts in relation to Sunrun
3 The Commissioner for Consumer Protection (the Commissioner) and Mr Torre agreed a statement of facts for the purposes of determining a penalty.
4 The statement of agreed facts (SAF) dated 6 December 2016 are set out below:
5 At all material times Sunrun:
1) was a company incorporated under the Corporations Act 2001 (Cth);
2) had an ACN 159 644 336 and ABN 931 59644336;
3) traded as House Real Estate WA (House Real Estate) from its business premises at 10 Station Street, Cottesloe; and
4) held a licence and triennial certificate under the REBA Act.
(SAF paragraph 2)
6 Sunrun maintained the following trust accounts (Trust Accounts) for the purposes of the REBA Act:
a) Sunrun Nominees Pty Ltd t/as House Real Estate WA REBA Trust Account - SALES TC65131 (Sales Trust Account);
b) Sunrun Nominees Pty Ltd t/as House Real Estate WA REBA Trust Account PROPERTY MGT TC65131 (Property Management Trust Account);
c) Sunrun Nominees Pty Ltd t/as House Real Estate WA REBA Trust Account ADVERTISING TC65131 (Advertising Trust Account);
d) Sunrun Nominees Pty Ltd t/as House Real Estate WA REBA Rental Trust Account - TC65131 (Rental Trust Account); and
e) Sunrun Nominees Pty Ltd t/as House Real Estate WA REBA Sales Trust Account TC65131 (Macquarie Sales Trust Account).
(SAF paragraph 3)
7 Mr Torre has been a director of Sunrun since 26 July 2012 and is a registered sales representative (SAF paragraph 4).
8 At all material times, Mr Burns:
1) held a licence and a triennial certificate under the REBA Act;
2) was the person in bona fide control of House Real Estate; and
3) attended House Real Estate's office generally once or twice a week at most which attendance was not sufficient to maintain supervision of the business and its employees.
(SAF paragraph 5)
9 On 2 July 2014, Mr Burns ceased being a director of Sunrun. On 31 October 2014, Mr Burns surrendered his licence and triennial certificate to the Commissioner (SAF paragraphs 67).
Proceedings against Sunrun
10 On 5 December 2016, Sunrun admitted the allegations against it in the Commissioner's application and consented to orders that:
a) Sunrun be reprimanded;
b) Sunrun pay a fine of $12,000; and
c). Sunrun pay the Commissioner's costs of the proceedings fixed in the sum of $3,000.
(SAFA paragraph 8)
Proceedings against Mr Burns
11 On 17 June 2015, Mr Burns admitted the allegations against him in the Commissioner's application and consented to orders that:
a) Mr Burns be reprimanded; and
b) Mr Burns pay a fine of $1,000 in respect of each breach of the Code of Conduct for Agents and Sales Representatives 2011 (Code of Conduct) being a total of $3,000.
(SAF paragraph 9)
Transaction 1 7 Bateman Street, Mosman Park
12 On 23 November 2012, Mr Michael John Norburn paid a deposit of $100,000 (Bateman Street Deposit) into the Sales Trust Account when purchasing a property at 7 Bateman Street, Mosman Park for $2,400,000 (Bateman Street Property). The seller of the Bateman Street Property and Mr Norburn entered into a residential tenancy agreement, the relevant terms of which were:
1) Mr Norburn granted the seller a tenancy agreement commencing on the date of settlement;
2) the rent was $6,933.33 per month; and
3) a security bond of $6,400 was to be paid.
(SAF paragraphs 1011)
13 Mr Norburn engaged Sunrun to act as managing agent in respect of the tenancy agreement for the Bateman Street Property. On 18 December 2012, $100,170.14, which was the Bateman Street Deposit plus interest, was transferred from the interest bearing account to the Sales Trust Account.
14 On 20 December 2012, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 21 December 2012, Sunrun's commission of $39,600 was transferred from the Sales Trust Account to the general operating account (General Account) eight days prior to settlement. After that transaction, the Sales Trust Account held a balance of $13,503.47 (SAF paragraphs 1216).
15 On 29 December 2012, settlement of the sale of the Bateman Street Property was effected (SAFA paragraph 17). On 7 January 2013, a payment of $6,475.74 was made to Mr Norburn, comprising one month's rent of $6,933.33, less the agent's management fees of $457.59. After that transaction, the Sales Trust Account held a balance of $7,027.73 (relating to the Bateman Street Property) which comprised of interest of $170.14, the bond of $6,400 and management fees of $457.59 (SAF paragraphs 1819).
16 On 17 January 2013, the amount of $6,000 was withdrawn from the Sales Trust Account and transferred to Mr Torre's personal account. At the time, Mr Torre was only entitled to withdraw $457.59 from the Sales Trust Account. Mr Torre withdrew $5,542.41 from the Sales Trust Account without authority. After that transaction, the Sales Trust Account held a balance of $1,027.73 (relating to the Bateman Street Property, which comprised interest of $170.14 and a portion of the remaining bond, being $857.59) (SAF paragraphs 2022).
17 On 30 January 2013, the amount of $50,065.75 (relating to 44 Kathleen Street Cottesloe) which contained the original deposit amount of $50,000, plus a figure of $65.75 (being the interest component) was transferred back into the Sales Trust Account. After that transaction, the Sales Trust Account held a balance of $51,093.48, which comprised of interest of $170.14 for 7 Bateman Street, Mosman Park, a portion of the bond being $857.59 for 7 Bateman Street, Mosman Park, the $50,000 deposit for 44 Kathleen Street, Cottesloe and interest of $65.75 for 44 Kathleen Street, Cottesloe. Also on 30 January 2013, an amount of $1,000 was withdrawn from the Sales Trust Account and transferred to Mr Torre's personal bank account. Mr Torre was not holding any of his funds in the Sales Trust Account at this time (SAF paragraphs 2326).
18 The only funds that were in the Sales Trust Account prior to the $1,000 being removed by Mr Torre was interest of $170.14 for 7 Bateman Street, Mosman Park and a portion of the bond, being $857.59 for 7 Bateman Street, Mosman Park, and the $50,000 deposit for 44 Kathleen Street, Cottesloe together with interest of $65.75 for 44 Kathleen Street Cottesloe (SAF paragraph 27).
19 Mr Torre withdrew the amount of $1,000 from the Sales Trust Account without authority of the vendor (SAF paragraph 28). Sunrun's commission was withdrawn seven days prior to settlement (SAF paragraph 29).
Transaction 2 - 44 Kathleen Street, Cottesloe
20 On 11 January 2013, Ms Adrienne Maree Clarke paid a deposit of $50,000 (Kathleen Street Deposit) into the Sales Trust Account when purchasing a property at 44 Kathleen Street, Cottesloe for $1,370,000 (Kathleen Street Property). On 10 January 2013, Ms Clarke gave Sunrun permission in writing to transfer the Kathleen Street Deposit into a separate interest bearing account. On 14 January 2013, the Kathleen Street Deposit was transferred from the Sales Trust Account to a separate interest bearing account (SAF paragraphs 3032).
21 On 29 January 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 30 January 2013, $50,065.75, which was the Kathleen Street Deposit plus interest, was transferred from the interest bearing account to the Sales Trust Account.
22 On February 2013, $27,395, which was the Kathleen Street Deposit less commission, was sent to the seller's settlement agent's trust account. On 6 February 2013, $20,550, a portion of Sunrun's commission, was transferred from the Sales Trust Account to the General Account. On 11 February 2013, settlement of the sale of the Kathleen Street Property was effected (SAF paragraphs 3337).
23 Sunrun's commission due upon the sale of the Kathleen Street Property was $22,605.00. However, $20,550 of that total was withdrawn five days prior to settlement (SAF paragraph 38). The accrued interest of $65.75 was remitted to Ms Clarke more than 12 months after its accrual (SAF paragraph 3839).
Transaction 3 – 56 Harvest Road, North Fremantle
24 On 25 February 2013, Mr David George Anthony paid a deposit of $150,000 (Harvest Road Deposit) into the Sales Trust Account when purchasing 56 Harvest Road, North Fremantle for $3,050,000 (Harvest Road Property). On 25 February 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 28 February 2013, the Harvest Road Deposit was withdrawn from the Sales Trust Account and transferred into a separate interest bearing account with Mr Anthony's permission (SAF paragraphs 4042).
25 On 5 March 2013, $150,061.65, which was the Harvest Road Deposit plus interest earned, was transferred from the interest bearing account into the Sales Trust Account. On the same day, $89,000, which was the Harvest Road Deposit less commission, was sent to the seller's settlement agent, Ms Elizabeth June Reiss trading as Elizabeth Reiss and Associates. On the same day, $61,000, which was Sunrun's commission, was transferred from the Sales Trust Account to the General Account. On 13 March 2013, settlement of the sale of the Harvest Road Property was effected (SAF paragraphs 4346).
26 The accrued interest of $61.65 was remitted to Mr Anthony on 5 September 2014 (SAFA paragraph 47). Sunrun's commission was withdrawn eight days prior to settlement (SAF paragraphs 48).
Transaction 4 - 26 Salvado Street, Cottesloe
27 On 10 May 2013, Mr Andrew Richard Lee Burt paid a deposit of $250,000 (Salvado Street Deposit) into the Sales Trust Account when purchasing a property at 26 Salvado Street, Cottesloe for $3,675,000 (SalvadoStreet Property). On 13 May 2013, the Salvado Street Deposit was transferred from the Sales Trust Account to a separate interest bearing account without Mr Burt's permission. On 17 May 2013, the Salvado Street Deposit was transferred from the interest bearing account back into the Sales Trust Account. On the same day, $77.06 was transferred from the interest bearing account back into the Sales Trust Account. On 20 May 2013, $100,000 was sent to the sellers, Mr Cameron Oke Shephard and Ms Catherine Louise Shephard (SAF paragraphs 4953).
28 On 20 May 2013, the amount of $52,125, which was Sunrun's commission, was withdrawn from the Sales Trust Account and transferred to the General Account. On 21 May 2013, the amount of $97,875, which was the remainder of the deposit less commission, was transferred from the Sales Trust Account to the sellers, Mr and Mrs Shephard. On 20 June 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 16 August 2013, settlement of the sale of the Salvado Street Property was effected (SAF paragraphs 5457).
29 The accrued interest of $77.06 was remitted to Mr Burt on 26 September 2014. Sunrun's commission due upon the sale of the Salvado Street property was $55,125. However, Sunrun reduced the selling fee by $3,000 making the total selling fee $52,125 (SAF paragraphs 5859). Sunrun's commission was withdrawn 88 days prior to settlement (SAF paragraph 60).
Transaction 5 - 1/113 Forrest Street, Peppermint Grove
30 On 27 May 2013, Ms Chun Yan Rao paid a deposit of $50,000 into the Sales Trust Account (Forrest Street Deposit) when purchasing 1/113 Forrest Street, Peppermint Grove for $2,000,000 (Forrest Street Property). Ms Rao gave Sunrun written permission to transfer the Forrest Street Deposit into a separate interest bearing trust account. On 28 May 2013, the Forrest Street deposit was withdrawn from the Sales Trust Account and transferred into a separate interest bearing account (SAF paragraphs 6163).
31 On 5 July 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 9 July 2013, the amount of $50,128.13 was transferred from the interest bearing account into the Sales Trust Account. This amount comprised the Forrest Street Deposit plus an amount of $128.13 in interest earned on the deposit. On the same day, the amount of $14,545.46, which was a portion of Sunrun's commission was withdrawn from the Sales Trust Account and transferred directly into the General Account (SAF paragraphs 6466).
32 On 10 July 2013, the amount of $10,000, which was the Forrest Street Deposit less commission was withdrawn from the Sales Trust Account and transferred directly to the seller's settlement agent, Lenlo Pty Ltd trading as Soobry Settlements. On 15 July 2013, the amount of $30.22 was transferred from the interest bearing account into the Sales Trust Account (SAF paragraphs 6768).
33 On 19 July 2013, settlement of the sale of the Forrest Street Property was effected. On the same day, the amount of $15,465.66, which was a portion of Sunrun's commission was withdrawn from the Sales Trust Account and transferred to a third party. On the same day, the amount of $9,988.88, which was the remaining portion of Sunrun's commission was withdrawn from the Sales Trust Account and transferred directly into the General Account. The accrued interest of $158.35 remitted to Ms Rao on 26 September 2014. Sunrun's commission due upon the sale of this property was $40,000 (SAF paragraph 72).
34 A portion of Sunrun's commission was withdrawn 10 days prior to settlement (SAF paragraphs 6973).
Transaction 6 – 12 Granich Gardens, Woodlands
35 On 12 June 2013, Ms Rosalie Joy Nodwell and Mr Robert John Pettit paid a deposit of $50,000 (Granich Gardens Deposit) into the Sales Trust Account when purchasing a property at 12 Granich Gardens, Woodlands for $1,300,000 (Granich Gardens Property). On 10 June 2013, Ms Nodwell and Mr Pettit gave Sunrun written permission to transfer the Granich Gardens Deposit to a separate interest bearing trust account (SAF paragraphs 7475).
36 On 17 June 2013, the Granich Gardens Deposit was withdrawn from the Sales Trust Account and transferred into a separate interest bearing account. On 12 July 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission (SAF paragraphs 7677)
37 On 16 July 2013, the amount of $50,052.74, which was the Granich Gardens Deposit plus $52.74 interest, was transferred from the interest bearing account into the Sales Trust Account. On the same day, $56.57 was transferred from the interest bearing account into the Sales Trust Account. On the same day, $24,000, which was the Granich Gardens Deposit less commission, was transferred from the Sales Trust Account to the seller's settlement agent (SAF paragraphs 7880).
38 On 23 July 2013, $26,000, which was Sunrun's commission, was withdrawn from the Sales Trust Account and transferred to the General Account. On 26 July 2013, settlement of the sale of the Granich Gardens Property was effected (SAF paragraphs 8182).
39 The accrued interest of $109.31 was remitted to Ms Nodwell and/or Mr Pettit on 26 September 2014. Sunrun's commission due upon the sale of the Granich Gardens Property was $26,000 (SAF paragraph 83). Sunrun's commission was withdrawn three days prior to settlement (SAF paragraph 84).
Transaction 7 - 75 Forrest Street, Cottesloe
40 On 11 July 2013, Mr Simon Nicholas Hoffman paid a deposit of $40,000 (75 Forrest Street Deposit) into the Sales Trust Account when purchasing 75 Forrest Street, Cottesloe for $2,000,000 (75 Forrest Street Property). On the same day, the 75 Forrest Street Deposit, was withdrawn from the Sales Trust Account and transferred into a separate interest bearing account (SAF paragraphs 8586).
41 On 8 August 2013, the 75 Forrest Street Deposit was transferred from the interest bearing account into the Sales Trust Account. On the same day, $4,000, which was the 75 Forrest Street Deposit less commission, was withdrawn from the Sales Trust Account and transferred to the seller's settlement agent. On the same day, $36,000, which was Sunrun's commission, was withdrawn from the Sales Trust Account and transferred directly into the General Account (SAF paragraphs 8789)
42 On a date unknown, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 15 August 2013, settlement of the sale of the 75 Forrest Street Property was effected (SAF paragraphs 9091).
43 Sunrun's commission due upon the sale of this property was $36,000. Sunrun's commission was withdrawn seven days prior to settlement (SAF paragraph 92).
Transaction 9 – 21 Knutsford Street, Swanbourne
44 On 5 August 2013, Mr Bradley Stirling Negus and Ms Claire Jennifer Negus paid a deposit (Knutsford Street Deposit) of $89,500 into the Sales Trust Account when purchasing 21 Knutsford Street, Swanbourne for $1,790,000 (Knutsford Street Property). On 27 August 2013, $57,280, which was the Knutsford Street Deposit less commission, was withdrawn from the Sales Trust Account and transferred to the seller's settlement agent (SAF paragraphs 9394).
45 On 29 August 2013, $32,220, which was Sunrun's commission, was transferred from the Sales Trust Account to the General Account. On 3 September 2013, settlement of the sale of the Knutsford Street Property was effected (SAF paragraphs 9596). Sunrun's commission was withdrawn five days prior to settlement. (SAF paragraphs 97).
Transaction 9 - 3B John Street, Claremont
46 On 27 August 2013, Ms Gabrielle Maree Fogarty paid a deposit of $50,000 (John Street Deposit) into the Sales Trust Account when purchasing 3B John Street Claremont for $1,650,000 (John Street Property). On 23 August 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission. On 24 August 2013, Ms Fogarty gave Sunrun written permission to transfer the John Street Deposit into a separate interest bearing trust account (SAF paragraphs 98100).
47 On 30 August 2013, the John Street Deposit was transferred from the Sales Trust Account to a separate interest bearing account. On 1 September 2013, Sunrun obtained a purported written consent from the vendors for the early payment of its commission (SAF paragraphs 101102).
48 On 12 September 2013, the John Street Deposit was transferred from the interest bearing account into the Sales Trust Account. On the same day, $17,000, which was the John Street Deposit less commission, was withdrawn from the Sales Trust Account and transferred to the seller's settlement agent. On 12 September 2013, $19,800, which was a portion of Sunrun's commission, was withdrawn from the Sales Trust Account and transferred into the General Account (SAF paragraphs 103105)
49 On 20 September 2013, $952.06, the remaining portion of Sunrun's commission, was withdrawn from the Sales Trust Account and transferred to the General Account. On 23 September 2013, settlement of the property was effected. On 23 September 2013, a conjunctional commission of $12,247.94 was paid to Dalkeith Region Pty Ltd trading as Acton Dalkeith for their role in the transaction (SAF paragraphs 106108).
50 On 6 November 2013, the accrued interest of $44.64 was transferred from the interest bearing account into the Sales Trust Account. On the same day, the accrued interest of $44.64 was remitted to Ms Fogarty. Sunrun's commission due upon the sale of this property was $33,000 (SAF paragraphs 109110). Sunrun's commission was withdrawn 11 days prior to settlement (SAF paragraph 111).
Involvement of Mr Torre
51 Mr Torre acted for and on behalf of Sunrun in respect of the matters outlined above. In particular, Mr Torre was responsible for:
1) the early withdrawal of the commissions due to Sunrun including purporting to obtain the consent of the vendors to the early release of the commissions;
2) the trust account transactions outlined in SAF paragraphs20 and 26 in respect of Transaction 1; and
3) the transfer of the deposit in respect of Transaction 4 to a separate interest bearing account.
(SAF paragraph 112)
52 Mr Torre was aware that the receipt of a sales commission prior to settlement of the transaction was prohibited by the REBA Act, including where such early receipt was authorised by the vendor of the property. Mr Torre knew, or ought to have known, that Sunrun was not entitled to the funds identified in SAF paragraphs 22 and 28 (SAF paragraphs 113114).
The legislation
53 Section 61(4) of the REBA Act provides:
The remuneration of an agent for services rendered by him in his capacity as agent in respect of a transaction he has negotiated is payable only on settlement of the transaction unless there is a failure to settle the transaction and that failure is due to the fault of the agent’s principal.
54 Section 68(4) of the REBA Act provides:
Moneys received by an agent for or on behalf of another person in respect of a transaction shall not be withdrawn from a trust account except for the purposes of the transaction, or as otherwise authorised by this Act, or as otherwise authorised by the person or persons lawfully entitled to the moneys.
55 Section 101(1)(a) of the REBA Act provides:
The Commissioner may from time to time prescribe, and publish in the manner prescribed by the regulations a code of conduct for agents[.]
56 Section 7 of the Code of Conduct provides:
(1) An agent must act fairly and honestly.
(2) An agent must not knowingly mislead or deceive any parties in negotiations or a transaction.
(3) An agent must not engage in harsh or unconscionable conduct.
57 Section 103(1) of the REBA Act provides:
(1) If, in a proceeding commenced by an allegation under section 102(1) against an agent, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things
(a) reprimand or caution the agent;
(b) impose a fine not exceeding $10 000 on him;
(c) suspend or cancel his licence and any triennial certificate in respect thereof and in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from holding a licence or triennial certificate, or both;
…
58 Section 103(2)(c)(iii) of the REBA Act provides:
There shall be proper cause for disciplinary action against an agent if the agent is acting or has acted in breach of the agents code of conduct[.]
59 Section 103(4)(c)(ii) and (iii) of the REBA Act provide:
There shall be proper cause for disciplinary action against a sales representative if
the sales representative is acting or has acted in breach of
…
(ii) the requirements of this Act; or
(iii) the code of conduct for sales representatives[.]
Mr Torre's admissions
60 Mr Torre admits that by authorising the early withdrawal of the sales commission due to Sunrun in each of Transactions 1 to 9, Mr Torre:
1) contravened s 68(4) of the REBA Act; and
2) contravened s 7 of the Code of Conduct in that he acted dishonestly and unfairly by obtaining the consent of the vendor of the property to the early receipt of the commission in circumstances where he knew that such receipt was a contravention of the REBA Act.
(SAF paragraph 115)
61 Mr Torre further admits that by transferring the deposit in respect of Transaction 4 into a separate interest bearing account without the authority of Mr Burt, Mr Torre contravened s 68(4) of the REBA Act.
62 Mr Torre further admits that by authorising Sunrun to transfer the amounts of $5,542.41 and $1,000 into Mr Torre's personal bank account in circumstances where neither Sunrun nor Mr Torre was entitled to those amounts, Mr Torre contravened s 68(4) of the REBA Act.
63 Sunrun and Mr Torre refunded the amounts to the vendor of the property (the rightful recipient) on 5 July 2013 (SAF paragraphs 116118).
Disciplinary sanctions general principles
64 The appropriate penalty is to be considered at the time of imposing the penalty and not at the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; ASolicitor v Council of the Law Society of NSW [2004] HCA l; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [16]).
65 In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 (Paridis), the Court of Appeal set out the principles relevant to a breach of the Code of Conduct under the Settlement Agents Act 1981 (WA) (Settlement Agents Act). Those principles apply equally to a breach of the Code of Conduct under the REBA Act. In Paridis at [25], Buss JA stated:
The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. See, for example, Ziems v The Prothonotaryof the Supreme Court of NewSouth Wales (1957) 97 CLR 279 at 286; Clyne v New South Wales Bar Association (1961) 104 CLR 186 at 201202; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183184; Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 at 244; Re a Barrister and Solicitor (1979) 40 FLR 1 at 2425; Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at [6][7]. As Crawford J noted, in Law Society of Tasmania v Turner (2001) 11 Tas R 1, at 24 [61], in the context of disciplinary proceedings against a legal practitioner:
The powers of the Court are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also its clients from harm. The Court's task is to uphold the dignity and standards of the profession and to enable it to do so, it has many powers, including the power to impose a fine not exceeding $20,000, to order payment of costs, to suspend and to strike off. Such orders are, of course, of a punitive nature but their imposition should not be regarded as sentences as for crimes and offences. The order the Court makes should be one 'which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct'. Dickens v Law Society [42/1981] at 16.
66 In Paridis at [30], Buss JA set out the relevant factors in assessing a penalty under s 83 of the Settlement Agents Act:
1) the conduct giving rise to the allegations and its seriousness;
2) the agent's explanation for the conduct;
3) the necessity to maintain proper standards among settlement agents and maintain public confidence in relation to the professional and ethical behaviour of agents;
4) the necessity for general deterrence; and
5) personal matters, of a mitigatory nature, including the agent's professional behaviour before and after the incidents in question, and the extent of the agent's rehabilitation.
67 In Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells) the Tribunal set out a list of 12 factors to be considered. The matters set out in Wells are illustrative of the matters set out by the Court of Appeal in Paridis.
68 The matters set out below are interrelated and are not mutually exclusive. The list of matters is not exhaustive and it is not a code. The 12 factors are:
1) any need to protect the public against further misconduct by the agent (Craig v Medical Board of South Australia (2001) 79 SASR 545 (Craig) at [47]; Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Law Society of New South Wales v Foreman (1994) 34 NSWLR (Foreman) at 440C; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [77]);
2) the need to protect the public through general deterrence of other agents from similar conduct (Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992); Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at[77]); Paridis at [30(4)]);
3) the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter an agent from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig at [64]; Johnson at [103]); Paridis at [30(3)]);
4) in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow agents can place reliance on the word and conduct of the agent (Johnson at [109]; Foreman at 445B-445G);
5) whether the agent has breached any:
a) Act;
b) Regulations;
c) Guidelines or Code of Conduct, issued by the relevant professional body; and
d) whether the practitioner has done so knowingly;
6) whether the agent's conduct demonstrated incompetence, and if so, to what level;
7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E-442G; New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory (1993) 118 ALR 54 at 62 and 63);
8) the agent's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
9) whether or not the agent understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the agent, since an agent who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]);
The agent's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted (A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108][109]; New South Wales Bar Association v Maddocks [1988] NSWCA 102).
Lack of remorse should not, in the absence of aggravating factors, be the predominate factor leading to a heavy sanction if otherwise a lighter sanction would be applied; Re H (a Barrister) [1981] 1 WLR 1257.
10) the desirability of making available to the public any special skills possessed by the agent;
11) the agent's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis at [30(5)]); and
12) the Tribunal may consider any other matters relevant to the agent's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). Ingeneral, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).
69 All of the above matters are to be considered in the context of the Tribunal's findings as to liability, that is, how serious was the conduct and the agents' explanation for the conduct (Paridis at [30(1)][30(2)]).
General matters relating to sanctions
70 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
71 The dominant purpose of the disciplinary provisions of the REBA Act is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon an agent guilty of misconduct, and personal hardship to an agent, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
72 It is the agent's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 271-272; ASolicitor [2004] NSW).
73 As the Tribunal explained in A Legal Practitioner (S) at [24]:
... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]
Cancellation of registration
74 The jurisdiction of the Tribunal to cancel an agent's registration is exercised not for the purpose of punishing the agent concerned, but for the protection of the public and the reputation and standards of the profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
75 Where an order for cancellation of an agent's registration is contemplated, the ultimate question is whether the material demonstrates that the agent is not a fit and proper person to remain an agent: ASolicitor [2004] NSW at [15].
76 An agent is not a fit and proper person to be a registered agent and should be removed from the register where the conduct is so serious that the agent is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19][20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26][28]); Love at [17][18]).
77 The practical effect of an order cancelling registration is that if an agent wishes to resume practice he/she must persuade the relevant regulatory authority that he/she is truly reformed and that he/she is a fit and proper person to resume practice.
Suspension
78 Suspension is a less serious result and differs from cancellation of an agent's registration because suspension is for a specified limited period.
79 The proper use of suspension is in cases where the agent has fallen below the high standards to be expected of such an agent, but not in such a way as to indicate that the agent lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of an agent (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the agent will be fit to resume practice (A Legal Practitioner (S) at [27]).
80 The practical effect of an order suspending registration is that at the end of the period of suspension, the agent is entitled to resume practice without having to prove that he/she is a fit and proper person.
Factor 1 Is there a need to protect the public against further misconduct by Mr Torre?
81 The duty to act fairly and honestly is central to an agent's obligation to their principals. Any breach of that obligation raises the risk of further misconduct because it reflects a breach of such a fundamental obligation.
82 The prohibition on the early receipt of sales commissions exists to protect parties to a transaction from the diminution of the deposit prior its lawful distribution in accordance with the terms of the contract between the parties.
83 A real estate agent does not have an unlimited right to receive a sales commission in circumstances where the transaction does not ultimately settle, such right being limited to circumstances in which the agent's principal is at fault. If the transaction does not settle for some other reason, the deposit will fall to be dealt with in accordance with the parties' contractual arrangements and payment prior to settlement by the agent for the purposes of a sales commission may deprive the lawful recipient of the full amount of those funds.
84 Mr Torre has accepted that he was aware that the early receipt of a sales commission was unlawful, even with the consent of the principal, and that he dishonestly and unfairly sought the consent of the vendors in each transaction to its release.
85 There is a need to protect the public from further misconduct by Mr Torre but having regard to Mr Torre's efforts to prevent the situation occurring again, the possibility of further misconduct is not high.
Factor 2 Is there a need to protect the public through general deterrence of other agents?
86 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public through general deterrence of other agents.
87 The reasons generally expressed in relation to the need to protect the public from further misconduct by Mr Torre also apply to the need to protect the public through general deterrence of other agents from similar conduct.
88 There is a substantial need to reinforce to the real estate industry the importance of the obligations owed by agents and sales representatives in relation to monies held on trust and the regulation of the receipt of sales commissions. In the context of real estate agents and sales representatives, the need for honesty is extremely high. Accordingly any penalty must set a clear message to both agents and sales representatives that dishonesty will not be tolerated.
89 This is all the more so in the cases of sales representatives. The very skills that make good sales persons makes it all the more important that they act honestly.
Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?
90 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public by reinforcing high professional standards and denouncing transgressions.
91 The obligations regarding monies held on trust are very important obligations under the REBA Act. Penalties imposed for contraventions of these provisions must operate to reinforce to the industry and those approved under the REBA Act to practise in that industry the importance of strict compliance with obligations relating to trust funds.
92 Persons engaging real estate agents and sales representatives do so for their experience and expertise. Often, clients will be unaware of regulations governing matters such as the early receipt of commissions and will rely on the advice of the sales representative. It is therefore important to ensure that sales representative do not breach that trust and confidence by ignoring or failing to advise their principals of the regulatory requirements for their own personal gain.
93 The protection of the public and general deterrence are extremely important in the context of this case.
Factor 4 Dishonesty
94 This conduct was dishonest and unfair because by seeking and obtaining the vendors' consents, Mr Torre necessarily implied to each of those vendors that it was lawful to receive the commission early, at least with consent. This was, on the admission of and to the knowledge of Mr Torre, contrary to the law. Mr Torre not only contravened the REBA Act in withdrawing the commissions, he misled the vendors as to his and Sunrun's entitlement to do so, thereby giving the unlawful conduct the colour of legitimacy to the vendors. The consent of the vendors is not a matter which in any way mitigates the conduct.
95 The early receipt of the commissions involved dishonesty in that the Mr Torre misrepresented the lawfulness of the early receipt of a commission and took that commission in the knowledge that it breached the law.
Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct
96 Mr Torre's conduct involved multiple serious breaches of the REBA Act Code of Conduct.
97 Obligations regarding the receipt and holding of monies on trust are among the most, if not the most, important obligations under the REBA Act. The conduct was deliberately dishonest (in respect of the early receipt of the sales commissions) and otherwise serious in respect of all allegations that have been admitted.
Factor 6 Incompetence
98 This factor is not relevant.
Factor 7 Was the incident isolated?
99 The contraventions involving early receipts of sales commission were not isolated and there were a number of separate contraventions spread over a nine month period. Further, when each of the contraventions is viewed broadly as a failure to comply with the regulations governing the receipt and holding of trust funds, the conduct as a whole cannot be described as isolated.
Factor 8 Mr Torre's disciplinary history
100 Mr Torre does not have a disciplinary history.
Factor 9 Whether or not Mr Torre understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by him
101 In respect of the unauthorised receipt of two sums into his personal bank account, Mr Torre's explanation is that he thought that the amounts were part of commission owing to him in respect of the sale of 7 Bateman Street, Mosman Park. The basis for this belief is not apparent, and its genuineness at the time may be doubted given that Sunrun, through Mr Torre, had already withdrawn Sunrun's commission prior to settlement of the transaction.
102 More generally, Mr Torre has attempted to shift the bulk of the blame to Mr Burns. In circumstances where Mr Torre accepts that he established the business of Sunrun in order to 'promote [him]self in the industry and no longer be an employee', this shows a lack of insight into the seriousness of the conduct.
103 Mr Torre has sought to cast the bulk of the blame for the conduct on to Mr Burns. Whilst Mr Burn's conduct was unsatisfactory in several respects (in response to which he surrendered his licence and agreed to a fine), Mr Torre's continued blame shifting shows a lack of insight into the separate and important obligations that he owes as a sales representative registered under the REBA Act.
104 However, having said that, the Tribunal recognises that he has implemented changes to prevent such conduct occurring again. Sunrun has employed a bookkeeper and the trust monies are dealt with in a separate system which is isolated from the general account system (T:15;09.12.16). The person now in bona fide control of the business is Mr Paul Harford, an experienced agent and licence holder.
105 Mr Torre has also shown remorse by agreeing to the facts. Although he did so, it was at a relatively late stage in the proceedings. While he is entitled to credit for that remorse, it is less than had he done so at an early stage in the proceedings.
Factor 10 Are there any special skills possessed by Mr Torre?
106 There is no evidence of any special skills which Mr Torre possesses which sets him apart from other registered sales representatives.
Factor 11 Mr Torre's personal circumstances
107 Mr Torre's submissions focus on the negative impact which these proceedings have had on his ability to earn an income and the claimed consequences that a suspension would have on his financial and personal circumstances (T:25; 09.12.16). Obviously, a period of suspension will have a very significant effect on Mr Torre's income.
108 Whilst not denying the potentially serious consequences of a suspension, the principal concern of the Tribunal must be the protection of the public and the maintenance of proper professional standards in the industry.
109 The personal effect of a disciplinary penalty must be subordinated to the need to maintain proper standards within the industry and the need to protect the public.
110 Mr Torre claimed, and the Tribunal accepts that that coverage of these proceedings in the local paper has had negative consequences for his business. He also claims, and the Tribunal accepts, that other agents have drawn their business away from him by reason of these disciplinary proceedings. However, the protection of the public is of paramount importance.
111 Mr Torre, in effect, argued that parity principles required that the penalty imposed on Mr Burns should fit the benchmark for the penalty imposed on him. There are two significant differences in the position of Mr Burns.
112 Firstly, Mr Burns accepted his wrong doing at a much earlier stage of the proceedings, and, secondly, Mr Burns surrendered his licence on 31 October 2014. The effect of Mr Burns surrendering his licence is that he has de facto been suspended until recently when his application for a licence was granted. In effect, Mr Burns was unable to practise for a period of two years. Mr Torre submitted that this was a personal choice by Mr Burns not to practice. However, Mr Torre did not lead any evidence to support that proposal.
Factor 12 Are there any other matters related to Mr Torre's fitness to practise?
113 There are no other relevant matters.
Costs
114 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] (Roberman (S), the Tribunal held that where a regulator successfully brings a complaint which justifies disciplinary action, there will usually be a strong case for the awarding of costs to that regulator.
115 Although the decision in Roberman (S) does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Commissioner to prosecute agents who breach the Code of Conduct is an important factor to be considered.
116 The Tribunal has considered the Commissioner's schedule of costs and is satisfied that they are reasonable.
117 Having considered the particular circumstances of this case, the Tribunal is satisfied that Mr Torre should pay the Commissioner's costs fixed at $4,884, in addition to those costs already agreed.
Penalty
118 Pursuant to the SAF dated 6 December 2016, Mr Torre admitted that he:
1) contravened s 68(4) of the REBA Act in respect of nine transactions where he authorised Sunrun to withdraw its commission in contravention of s 61(4) of the REBA Act;
2) contravened s 7 of the Code of Conduct in that he acted dishonestly and unfairly by obtaining the consent of the vendor of the property to the earlier receipt of the commission in circumstances where he knew that such receipt was a contravention of the REBA Act;
3) contravened s 68(4) of the REBA Act by transferring on behalf of Sunrun a deposit received by Sunrun in respect of a real estate transaction into a separate interest bearing account without the consent of the vendor of the property in contravention of s 68A of the REBA Act; and
4) contravened s 68(4) by receiving into his personal bank account two amounts, $5,542.41 and $1,000, in circumstances where he was not entitled to those funds.
119 Mr Torre has admitted a total of 20 allegations, there being two contraventions in respect of each instance of early withdrawal of a commission. Although there are 20 breaches, a global penalty is appropriate.
120 The Tribunal finds that the risk to the public of further misconduct by Mr Torre is low.
121 However, the breach of an agent's duty to act fairly and honestly in the circumstances of this case was serious. The circumstances are such that the penalty must be an effective general deterrent and ensure that principals can have confidence that their agents will act fairly and honestly.
122 A period of suspension of three months is appropriate commencing at midnight on 21 February 2017. The Tribunal is satisfied that after a period of suspension, Mr Torre will be fit to resume practice.
123 The Tribunal has allowed a period before the suspension takes effect so that arrangements may be made to transfer the business of Sunrun to another agent.
124 A global fine of $12,000 is also appropriate having regard to the number and seriousness of the offences.
Orders
1. The second respondent's, Mr FrankAndrewTorre's licence as a real estate sales representative under the Real Estate and Business Agents Act 1978 (WA) is suspended for a period of three months commencing at midnight on 3 March 2017.
2. Mr Frank Andrew Torre is fined $12,000.
2. Mr Frank Andrew Torre is to pay the Commissioner for Consumer Protection's costs of $4,884.
I certify that this and the preceding [124] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUSTICE J C CURTHOYS, PRESIDENT
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