COMMISSIONER for FAIR TRADING & RUMBLES REALTY PTY LTD (Occupational Discipline)
[2011] ACAT 47
•22 July 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING & RUMBLES REALTY PTY LTD (Occupational Discipline) [2011] ACAT 47
OD 6 of 2010
OD 1 of 2011
Catchwords: OCCUPATIONAL DISCIPLINE – AGENTS – acting as a real estate agent or a sales person when disqualified or without a licence or registration – evidence relating to representation as a real estate agent – carrying on business as a real estate agent
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss 66
Agents Act 2003, ss 2, 8, 27, 42, 45, 75 and 173 &
Divisions 3.2 & 4.2
List of cases: Australian Mutual Provident Society v Allan
(1978) 52 ALIR 407Cam & Sons Ply Ltd v Sargent (1940) 14 AU 162
Massey v Crown Life Insurance Co (1978) 1 WLR 676
Narich Pty Ltd v Commr of Payroll Tax (1983) 2 NSWLR 597
Neale v Atlas Products (Vie) Ply Ltd (1955) 94 CLR 419 at 428
R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138Polkowski v Corporate Associates Pty Ltd [1996] IRCA 181
Re Porter; Re Transport Workers Union of Australia
(1989) 34 IR 179
Wilson v Topaz Nominees Ply Ltd (1985) 10 JR 205
Tribunal: Mr A. Anforth, Senior Member
Date of Orders: 22 July 2011
Date of Reasons for Decision: 22 July 2011
AUSTRALIAN CAPITAL TERRITORY ) OD 6 of 2010
CIVIL & ADMINISTRATIVE TRIBUNAL ) OD 1 of 2011
BETWEEN:
COMMISSIONER FOR FAIR TRADING
Applicant
AND:
RUMBLES REALTY PTY LTD
Respondent
ORDERS
TRIBUNAL: Mr A. Anforth, Senior Member
DATE:22 July 2011
1.The Tribunal finds that Mr Rumble was carrying out real estate agent services both before and after the interim order of the President on 18 October 2010 and as such the respondent has also breached the interim order.
2.There remains the issue of the penalty.
3.The matter is to be relisted for submissions on penalty.
………………………………..
Mr A. Anforth
Senior Member
REASONS FOR DECISION
1.The respondent was at all material times the holder of a real estate agent’s licence in respect of premises at 8/20 Challis St, Dickson in the ACT.
2.At all material times, Wayne Rumble was disqualified from holding a real estate agent’s licence or a sales person registration under section 27(1)(c) of the Agents Act 2003. Erika Hall at no time held a real estate agent’s licence or a sales person registration. The Commissioner provided certificates under
section 173 of the Agents Act 2003 to the above effect. The respondent accepted the above propositions as an agreed fact.
3.Mr Rumble had once held a real estate agent’s licence in the ACT but for some reason had not renewed it when the present Agents Act 2003 came into force. For reasons that are not apparent to the Tribunal (and are also not relevant), Wayne Rumble was disqualified from holding an agent’s licence under the Agents Act 2003. On 13 March 2007, the Tribunal made an order lifting the disqualification subject to Mr Rumble successfully completing the requisite training courses for registration (exhibit A5).
4.However, before he could comply with the above order, the Commissioner became aware that the company of which Mr Rumble was the sole director, Merrewa P/L, was wound up on 15 December 2006. By letter of 25 May 2007 (exhibit A4) the Commissioner then invoked section 27 of the Agents Act 2003 with the effect that Mr Rumble. Thus, Mr Rumble was eligible for a licence as at 15 December 2009.
5.Section 27 operates to disqualify a person from holding a licence unless the Commissioner is satisfied that the person took all reasonable steps to prevent the company in question from being wound up. Mr Rumble did not appeal this decision. Had he successfully appealed he would have become entitled to an agent’s licence in 2007.
6.On 23 May 2007, the respondent’s company was incorporated. The sole director was, and still is, Ms Karen Lamaro who is a licensed real estate agent and the life partner of Mr Rumble. Mr Rumble was, and still is, the company secretary. There are two equity shares in the company both of which are shown on the ASIC report as being owned by Mr Rumble (exhibit A6).
7.The respondent company has carried on a real estate business since its incorporation.
8.The Commissioner alleges breaches of section 75 of the Agents Act 2003 in that the respondent employed both Mr Rumble and Ms Hall to carry out the duties of an agent or salesperson when neither person held an agent’s licence or registration as a salesperson.
9.The respondent admitted the allegations in respect of Ms Hall but offered the excuse that she was undertaking relevant studies to qualify as an agent and the respondent believed that in these circumstances it was permissible for Ms Hall to carry out the duties of an agent or salesperson. Ms Hall was employed by the respondent between 21 November 2008 and 23 April 2010. Section 75 is a strict liability offence and so the respondent’s explanation for their actions is no defence to the charges pertaining to Ms Hall’s activities.
10.The respondent denied that Mr Rumble had been employed to carry out the duties of an agent or salesperson. He was said to be an office manager and the duties he performed were only those of an office manager.
11.After the proceedings against the respondent had been commenced, the Commissioner sought and obtained an interim order from the President of the Tribunal that the respondent not employ Mr Rumble in the capacity of an agent or salesperson.
12.The Commissioner marshalled a volume of evidence concerning Mr Rumble’s activities with the public that pointed to his role as the defacto principal of the respondent to which Mr Rumble and Ms Lamaro had no meaningful response. These activities predated and post dated the interim order from the President.
13.The Tribunal was satisfied that the Commissioner had made out the original charges against the respondent and had made the charge relating to the breach of the interim order.
The application (OD 6/2010)
14.On 6 August 2010, the Commissioner lodged an application with the Tribunal under section 42 of the Agents Act 2003. The application sought an interim order and final orders. The interim order sought was as follows:
That the Tribunal directs that the respondent does not employ Mr Wayne Rumble to provide services as a real estate agent or sales person.
Orders sought
15.The final orders sought were:
(a) Pursuant to section 66(2)(d) of the ACT Civil and Administrative
Tribunal Act 2008, that the Tribunal directs that the respondent does not employ Mr Wayne Rumble to provide services as a real estate agent or sales person;
(b) Pursuant to section 66(2)(d) of the ACT Civil and Administrative
Tribunal Act 2008,that the Tribunal directs that the respondent does not employ Mr Wayne Rumble in any capacity;
(c) Pursuant to section 66(2)(h) of the ACT Civil and Administrative
Tribunal Act 2008, that the Tribunal directs that the respondent to pay a financial penalty to the Territory of $2,500 for each charge specified below;
(d) Pursuant to section 66(2)(b) of the ACT Civil and Administrative
Tribunal Act 2008, that the Tribunal requires the respondent to provide an undertaking to the applicant.
The charges
16.The two charges set out in the application were as follows:
(a)The respondent has breached section 75(2) of the Agents Act 2003 in that it employed Wayne rumble to provide a service in relation to the respondent’s business, which Wayne Rumble must be licensed or registered to provide and Mr Wayne Rumble provided this service when he was not registered or licensed to do so;
(b)The respondent has breached section 75(2) of the Agents Act 2003 in that it employed Ms Ericka Hall to provide a service, in relation to the respondent’s business, which Ms Erika Hall must be licensed or registered to provide and Ms Erika Hall provided this serviced when she was not registered or licensed to do so.
17.The particulars of the charges were set out in the statement of Ms Karen Fleck dated 15 September 2010 (exhibit A12) filed with the application:
1.This statement made by me accurately sets out the evidence which I would be prepared if necessary, to give in Court as a Witness.
2.This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated in it anything, which I know to be false or do not believe to be true.
3.My full name is Katrina Louise Fleck and I am over the age of 18 years. I am employed by the ACT Office of Regulatory Services (ORS) as an Investigator, appointed under section 8 of the Fair Trading (Consumer Affairs) Act 1973 in the name of Katrina Fleck, identification number 14816.
4.On 25 February 2010 I was assigned a complaint to investigate. The complaint was lodged by Mr Andrew Chapman and Mr Stephen Thompson, tenants at 2/59 Hodgson Crescent Pearce ACT 2607. The property is managed by Rumbles Realty Pty Ltd. The complaint is in relation to the conduct of Mr Wayne RUMBLE and Ms Karen Lamaro and the sale of the property that the complainants were renting.
5.On 25 February 2010, 1 researched our database for information on the licences for Rumbles Real Estate and the employees including Wayne Rumble, Karen Lamaro, Margaret Salvador and Erika Hall. The search showed that Rumbles Realty Pty Ltd t/a Rumbles Real Estate is a licensed real estate agent number 18401204, that Karen Lamaro is a licensed real estate agent number 18401257, and that Margaret Salvador is a registered salesperson for real estate number 18101076. The search also showed that Wayne RUMBLE is not licensed as a real estate agent and is not registered as a sales person. It also showed that Wayne RUMBLE is disqualified from being licensed or registered, under Section 27(1)(c)(i)(ii) of the Agents
Act 2003 for being a person involved in the management of a corporation when the corporation became the subject of a winding up order in the last 3 years. The search also showed that Erika Hall is not licensed as a real estate agent and is not registered as a sales person for real estate. It showed that Erika Hall was a registered sales person between the period 2 October 2008 until 31 October 2008, and has not been renewed.Wayne Rumble:
6.On 3 March 2010, I searched the real estate website for the property 2/59 Hodgson Crescent Pearce ACT 2607 and found an advertisement for the sale of the property. The advertised sales consultant for the property is ‘Wayne Rumble Rumbles Real Estate’ and the contact email address is ‘[email protected]’ and the mobile number is ‘0449 127 702’. I printed a copy of the advertisement. I now produce this document as Attachment ‘Al’.
7.On 3 March 2010 at approximately 11.3 5am, I telephoned Rumbles Real Estate and spoke to a male identifying himself as ‘Wayne Rumble’. I identified myself as Katrina and said that I was looking at properties in Canberra. I said words to the effect of “when is 2/59 Hodgson Crescent open for inspection” and Mr RUMBLE said words to the effect of ”I haven’t got an opening booked but it will possibly be opened on the 13th of March”. I said words to the effect of “Karen Lamaro is listed as the selling agent on allhomes, do I need to talk to her about inspections”. Mr RUMBLE said words to the effect of “No, Karen is the lead agent but I am working with her on the sale”. I asked Mr RUMBLE if many people had looked at the property and he told me that there had been strong interest but they were still looking for a buyer. I told Mr RUMBLE that I was interested in having a look at the property and I said words to the effect of “Do I need to make an appointment with Karen”. Mr RUMBLE said words to the effect of “It is easier to get hold of me. I will be able to show you through if you are interested. I will need to check with the tenants but I am happy to arrange an inspection before the l3”. I told Mr RUMBLE that I would call him if I needed to make an appointment and ended the call. I made notes of the telephone conversation on a record of conversation.
8.On 3 March 2010, I received a fax from Mr Andrew Chapman. The fax contained documents regarding their tenancy at 2/59 Hodgson Crescent Pearce ACT 2607 and correspondence from Rumbles Real Estate. One letter was addressed to the tenants and provided “formal notice that the lessor intends to sell the property”. The letter is signed by ‘Wayne Rumble/ Rumbles Realty” and is dated 13 February 2010. I now produce this document as Attachment ‘B1’.
9.On 12 March 2010 at approximately 10.35am, Investigator Cogger and I attended the premises of Rumbles Realty Pty Ltd t/a Rumbles Real Estate located at 8/20 Challis Street Dickson ACT 2602. I identified myself to the female behind the reception desk and she told me her name was ‘Erika Hall’. I told Ms Hall that I was investigating a complaint and needed to seize all of the files for the property 2/59 Hodgson Crescent Pearce. I saw Ms Hall collect 2 files from the filing cabinets in the centre office and 1 file from behind the reception area. Ms Hall told me that the property was for sale and she needed the contract. I told her that was fine and asked if she could provide me with a photocopy. I saw Ms Hall photocopy the contract and she handed me the copy. I completed a record of inspection number 5197 and saw Ms Hall sign it. I also completed a seizure record SRI 560 for the sales, financial and rental files and saw Ms Hall sign it. I gave Ms Hall a copy of the records. I saw a display on the reception desk with business cards and asked Ms Hall if I could take one for each of the people working in the office. Ms Hall told me that was fine. I thanked Ms Hall for her assistance and Investigator Cogger and I left the premises.
10.The seized files contained:
(1) A copy of an inspection report for the property 2/59 Hodgson Crescent Pearce dated 18 September 2008. The name ‘W. Rumble’ is written next to the Property Manager. I now produce this document as Attachment ‘Cl’;
(2) A letter dated 19 October 2009 addressed to Mr Andrew Chapman and Mr Stephen Thompson, tenants of 2/59 Hodgson Crescent Pearce ACT 2607, advises of an increase of rent to $510 per week. This letter is signed ‘E Hall’ on behalf of ‘Wayne Rumble, Director’. This property is managed by Rumbles Realty Pty Ltd. I now produce this document as Attachment ‘Dl’;
(3) A letter dated 11 November 2009 addressed to Mr Andrew Chapman and Mr Stephen Thompson, tenants of 2/59 Hodgson Crescent Pearce ACT 2607, advises of an increase in rent to $500 per week. This letter is signed ‘E Hall’ on behalf of ‘Wayne Rumble, Director’. I now produce this document as Attachment ‘El’;
(4) An exclusive agency agreement for the sale of a property owned by Mr Brett Chapman, initialed ‘WR’ as the signature of the agent and dated 28 January 2010.I now produce this document as Attachment ‘Fl’;
(5) A facsimile addressed to Salli Willings dated 1 February 2010 requesting a contract of sale be prepared for the property 2/59 Hodgson Crescent Pearce ACT 2607 signed ‘Wayne’. I now produce this document as Attachment ‘G1a’;
(6) A contract of sale for the property 2/59 Hodgson Crescent Pearce ACT 2607 with the seller agent listed as ‘Wayne Rumble’. I now produce this document as Attachment ‘G1b’; and
(7) A letter notifying the tenants of the intended sale of the property 2/59 Hodgson Crescent Pearce ACT 2607 dated 13 February 2010 signed by Karen Lamaro. I now produce this document as Attachment ‘H1’. I have noted that this letter is identical to the letter signed by Mr Rumble (refer Attachment Cl) which is not included in this file.
11.On 16 March 2010 at approximately l.l0pm, Investigator Cogger and I attended the premises of Rumbles Realty Pty Ltd t/as Rumbles Real Estate located at 8/20 Challis Street Dickson ACT 2602 and returned the sales, financial and rental files for the property 2/59 1-lodgson Crescent Pearce ACT 2607 to Ms Hall. Ms Hall signed a seizure record SRI 565 as receipt of the files.
12.On 20 April 2010, I conducted a search on the website open2view.com.au under agents listing for any properties being sold by Wayne Rumble. The result provided the advertisement for the sale of 2/59 Hodgson Crescent Pearce ACT 2607 and a new listing for the sale of 33b Gascoyne Circuit Kaleen 2617. The advertisement lists the ‘Sales Consultant’ as ‘Wayne Rumble — Rumbles Real Estate’ and provides the email address ‘[email protected]’. The mobile number is ‘0449 127 702’. I now produce this document as Attachment ‘I1’.
13.On 20 April 2010 at approximately 10.15am I telephoned Rumbles Real Estate and spoke to a female identifying herself as Erika Hall. I asked
Ms Hall when the Pearce property was going to be open for inspection and she said words to the effect of “It is open by appointment only and you need to call Wayne”. I then asked Ms Hall when the Kaleen property would be open for inspection and Ms Hall said words to the effect of “appointment only and to call Wayne”. I said that the listing on allhomes website was under someone else’s name and I asked Ms Hall who the best contact would be. Ms Hall said words to the effect of “Wayne is the best person to talk to, he does the inspections”. I made notes during the telephone conversation on a record of conversation.14.On 21 April 2010, Investigator Dashwood and I delivered a ‘Census of Personnel Employed in ACT Real Estate Agencies to the offices of licensed real estate agencies in the Dickson area. We delivered a census to Rumbles Realty Pty Ltd.
15.On 25 April 2010 at approximately 10.l0am Investigator Barton and
I attended the premises of Rumbles Realty Pty Ltd t/a Rumbles Real Estate located at 8/20 Challis Street Dickson ACT 2602. I identified myself to the female behind the reception desk and she told me her name was ‘Joanna’.
I asked Joanna if Wayne or Karen were available. Joanna told me that they were out conducting inspections and consultations. I asked Joanna to telephone Karen or Wayne, I saw her dial numbers on the telephone and then place the receiver back. Joanna told me that she could not get through to either of them. I told Joanna that I was investigating a complaint and needed to seize the sale and rental files for the properties 2/59 Hodgson Crescent Pearce and 33b Gascoyne Circuit Kaleen and the sale file for 74 Tom Roberts Avenue Conder. I explained that the ORS has the ability to seize files under the Fair Trading (Consumer Affairs) Act 1973. I saw Joanna collect the files from the filing cabinets in the centre office and from the reception area. Investigator Barton completed a record of inspection number 8291, I signed it and I saw Joanna sign it. I completed a seizure record SRi 567 for the sales, rental and financial files and saw Joanna sign it. I gave Joanna a copy of the record of inspection 8291 and the seizure record SR1567. I thanked Joanna for her assistance and told her that I would try and contact Karen at a later time. Investigator Barton and I left the premises.16.The file for the sale of the property 2/59 Hodgson Crescent Pearce ACT 2607 contained a sales report dated 6 May 2010. The sales report lists the selling agent as ‘Wayne Rumble/Karen Lamaro’ and the listing agent as ‘Wayne Rumble/Karen Lamaro’. The report is signed by Karen Lamaro. I now produce this document as Attachment ‘J1’.
17.The file for the rental of the property 33b Gascoyne Circuit Kaleen ACT 2617 contained:
(1) A tenancy agreement dated 15 December 2008. The agent is initialled ‘WR’. I now produce this document as Attachment ‘K1’;
(2) An inspection report for the property 33b Gascoyne Circuit Kaleen ACT 2617 dated 14 August 2008. The property manager is listed as ‘Wayne Rumble’ and is initialled ‘WR’. I now produce this document as Attachment ‘L1’;
(3) A letter addressed to the owner of the property 33b Gascoyne Circuit Kaleen ACT 2617, Mr Joe Gareffa, dated 14 August 2008. The letter states “I recently conducted a routine inspection of your property”. The letter has the signature block ‘Wayne Rumble Property Management’. I now produce this document as Attachment ‘Ml’; and
(4) A letter addressed to the tenant of the property 33b Gascoyne Circuit Kaleen ACT 2617, Ms Amanda Barrie, dated 23 March 2010. The letter states “I, Wayne Rumble, will be the selling agent”. The letter is signed ‘WR’ and has the signature block ‘Wayne Rumble Rumbles Realty’. I now produce this document as Attachment ‘N1’.
18. The file for the sale of the property 33b Gascoyne Circuit Kaleen ACT 2617
contained:
(1) An exclusive agency agreement for the sale of the property dated 16 March 2010. The signature of the agent is initialed ‘W’. I now produce this document as Attachment ‘01’;
(2) A facsimile addressed to ‘Symons Phillips Lawyers’ from ‘Sales person Wayne Rumble’ dated 18 March 2010. The facsimile requests the preparation of a contract of sale for 33b Gascoyne Circuit Kaleeh ACT 2617 and is signed ‘Wayne Rumble Rumbles Realty’. I now produce this document as Attachment ‘P1a’.
(3) The contract of sale for the property 33b Gascoyne Circuit Kaleen ACT 2617 with the seller agent listed as ‘Wayne Rumble’. I now produce this document as Attachment ‘P1b’.
19.The file for the sale of the property 74 Tom Roberts Avenue Conder ACT 2906 contained:
(1) A sales inspection report dated 14 April 2010. The report lists the agent’s name as ‘KL/WR’ and is signed ‘WR’. I now produce this document as Attachment ‘Q1’;
(2) An exclusive agency agreement for the sale of the property 74 Tom Roberts Avenue Conder 2906 dated 16 April 2010. The signature of the agent is initialed ‘WR’. I now produce this document as Attachment ‘R1’;
(3) A facsimile addressed to ‘Dickson Legal’ from ‘Sales person Karen Lamaro/Wayne Rumble’ dated 16 April 2010. The facsimile requests the preparation of a contract of sale for the property 74 Tom Roberts Avenue Conder ACT 2906 and is signed ‘WR’ ‘Wayne Rumble Rumbles Realty’. I now produce this document as Attachment ‘S1a’;
(4) The contract of sale for the property 74 Tom Roberts Avenue, Conder ACT 2906 with the seller listed as ‘Karen Lamaro/Wayne Rumble’. I now produce this document as Attachment ‘S1b’; and
(5)A letter addressed to the owner of the property 74 Tom Roberts. Avenue Conder ACT 2906, Kimly Nguyen. The letter states ‘I will assist the tenant Peter Cross to find alternative accommodation’ and ‘I will keep you closely informed during the marketing campaign and advise you of any offers received’. The letter is initialled ‘WR’ and has the signature block ‘Wayne Rumble Rumbles Realty’. I now produce this document as Attachment ‘T1’.
20.On 6 May 2010, the Office of Regulatory Services received a completed ‘Census of Personnel Employed in ACT Real Estate Agencies’ from Rumbles Realty Pty Ltd, licence number 18401204. The census is not signed or dated. The census lists the nature of Wayne Rumbles duties as ‘Office Manager’. I now produce this document as Attachment ‘U1’.
21.On 15 May 2010, I received a completed ‘Census of Personnel Employed in ACT Real Estate Agencies’ via facsimile from Rumbles Realty Pty Ltd, licence number 18401204. The census is dated 14 May 2010 and was prepared by ‘W. Rumble’ and signed ‘WR’. The census lists the nature of Wayne Rumbles duties as ‘Office Manager’. I now produce this document as Attachment ‘V1’.
Erika Hall:
22.On 12 March 2010 at approximately 10.35am, Investigator Cogger and
I attended the premises of Rumbles Realty Pty Ltd t/a Rumbles Real Estate located at 8/20 Challis Street Dickson ACT 2602. 1 identified myself to the female behind the reception desk and she told me her name was ‘Erika Hall’. I told Ms Hall that I was investigating a complaint and needed to seize all of the files for the property 2/59 Hodgson Crescent Pearce. I saw Ms Hall collect 2 files from the filing cabinets in the centre office and 1 file from behind the reception area. Ms Hall told me that the property was for sale and she needed the contract. I told her that was fine and asked if she could provide me with a photocopy. I saw Ms Hall photocopy the contract and she handed me the copy. I completed a record of inspection number 5197 and saw Ms Hall sign it and write ‘Property Management’ next to position. I now produce this document as Attachment ‘A2’. I also completed a seizure record SRi 560 for the sales, financial and rental files and saw Ms Hall sign it. Igave Ms Hall a copy of the records. I saw a display on the reception desk with business cards and asked Ms Hall if I could take one for each of the people working in the office. Ms Hall told me that was fine. The business card for Ms Hall lists her position as ‘Property Management’. I now produce this document as Attachment ‘B2’. I thanked Ms Hall for her assistance and Investigator Cogger and I left the premises.23.On 3 March 2010, I received a fax from Mr Andrew Chapman. The fax contained documents regarding their tenancy at 2/59 Hodgson Crescent Pearce ACT 2607 and correspondence from Rumbles Real Estate. The documents included copies of:
(1) A tenancy agreement for the property dated 21 November 2008. The agreement is signed ‘E Hall’ next to Agent. I now produce this document as Attachment ‘C2’;
(2) A letter addressed to the tenants dated 21 November 2008. The letter states ‘I will be conducting your routine inspection and maintenance check of your property on 06/01/2009’. The letter is signed ‘E. Hall’ with the signature ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘D2’;
(3) A letter addressed to the tenants dated 3 December 2008. The letter states ‘I will be conducting your routine inspection and maintenance check of your property on 06/01/2009’. The letter is signed ‘B. Hall’ with the signature ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘E2’; and
(4) An inspection report for the property 2/59 Hodgson Crescent Pearce ACT 2607 dated 6 January 2009. The report is initialled ‘EH’ next to the Property Manager. I now produce this document as Attachment ‘F2’.
24.On 25 April 2010, I seized files from the premises of Rumbles Realty Pty Ltd (Refer paragraph 15).
25.The file for the property 2/59 Hodgson Crescent Pearce ACT 2607 contained:
(1) A copy of a tenancy agreement dated 18 November 2009 for the period 25/12/09 to 24/12/10. Next to Agent is signed ‘E Hall’. I now produce this document as Attachment ‘G2’; and
(2) A letter addressed to Mr Brett Chapman, the owner of 2/59 Hodgson Crescent Pearce 2607 dated 6 January 2009. The letter states “I recently conducted a routine inspection of your property”. The letter is signed ‘B. Hall’ with the signature block ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘H2’.
26.The file for the sale of the property 33b Gascoyne Circuit Kaleen ACT 2617 contained:
(1) A letter addressed to the tenants, Mr Andrew De Boni and Ms Rachel O’Keefe, of 33b Gascoyne Circuit Kaleen ACT 2617 dated 12 January 2009. The letter states “I wish to advise that I will be conducting your routine inspection and maintenance check of your property”. The letter is signed ‘E. Hall’ with the signature block ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘I2’;
(2) A letter addressed to Mr Joe Gareffa, the owner of 33b Gascoyne Circuit Kaleen ACT 2617 dated 2 March 2009. The letter states “I recently conducted a routine inspection of your property” and is signed ‘E. Hall’ with the signature block ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘J2’;
(3) An inspection report for the property 33b Gascoyne Circuit Kaleen ACT 2617 dated 26 February 2009. The report is initialled ‘EH’ next to Property Manager. I now produce this document as Attachment ‘K2’;
(4) A tenancy agreement for the tenants, Mr Anthony and Ms Amanda Barrie, for the property 33b Gascoyne Circuit Kaleen ACT 2617 dated 7 October 2009. The agreement is signed ‘E Hall’ next to Agent. I now produce this document as Attachment ‘L2’;
(5)An inventory and condition report for the property 33b Gascoyne Circuit Kaleen ACT 2617 dated 4 November 2009. The report is signed ‘E. Hall’ next to Agent. I now produce this document as Attachment ‘M2’;
(6) An inspection report for the property 33b Gascoyne Circuit Kaleen ACT 2617 dated 26 November 2009. The report is initialled ‘EH’ next to Property Manager. I now produce this document as Attachment ‘N2’; and
(7) A letter addressed to Mr Joe Gareffa dated 27 November 2009. The letter states “I recently conducted a routine inspection of your property”. The letter is signed ‘E. Hall’ with the signature block ‘Erika Hall, Property Management’. I now produce this document as Attachment ‘02’.
The application (OD 1/11)
18.On 18 October 2010, the President of the Tribunal made the interim order sought by the Commissioner together with orders for the filing of evidence.
19.On 13 January 2011, the Commissioner lodged a second application with the
Tribunal (OD 1/11) alleging that the respondent had breached the interim order made by the President on 18 October 2010 in that it had continued to employ Wayne Rumble to carry out the duties of a real estate agent or salesperson.
20.The Commissioner served a copy of this new application on the respondent on
the same date (exhibits A1, A2).
The course of the proceedings and the evidence:
21.On 22 November 2010, the Commissioner filed and serve a witness statement from Mr Andrew Debonii (exhibits A7, A11) which read:
(1)I was a tenant of the property known as 33b Gascoyne Circuit Kaleen ACT 2617 from 6 July 2007 until 20 October 2009.
(2) I leased the property through Rumbles Realty Pty Ltd.
(3) I signed a tenancy agreement dated 15 December 2008 in the presence of Wayne Rumble. Wayne Rumble signed as the Agent.
(4) Wayne Rumble was our Property Manager for a short time and conducted a routine property inspection of the premises on 14 August 2008. Wayne Rumble is listed as the property manager on the property inspection report.
(6) Wayne Rumble never officially said that he was a licensed real estate agent, however, I believed he was either a licensed real estate agent or a registered salesperson because of the duties he performed:
• Conducted a property inspection (as discussed above at paragraph 4);
• Signed a tenancy agreement as the agent;
• Was the main contact for the property;
• Was the after-hours contact for the property;
• Discussed the early termination of our lease during several conversations; and
• Discussed leasing fees with me.
(7) It was not until 1 took action against Rumbles Realty Pty Ltd in the ACT Civil and Administrative Tribunal (ACAT) that I discovered Wayne Rumble was not licensed to be a real estate agent or registered as a salesperson.
Hearing on 17 and 18 January 2011
22.The matter came before the Tribunal for hearing on 17 January 2011.
Ms Soper, solicitor, appeared for the applicant and Mr Wayne Rumble appeared for the respondent.23.The Tribunal was concerned that Mr Rumble appeared for the respondent given his central role in the charges and the inevitability of him being a witness in the matter. Mr Rumble assured the Tribunal that the respondent had considered that matter and that insisted that Mr Rumble appear as its representative. Notwithstanding this, the Tribunal arranged for a telephone conference with Ms Lamaro who confirmed that Mr Rumble had full authority to speak for, and to make admissions on behalf of, the respondent.
24.Ms Soper raised the issue of the second application regarding the alleged breach of the interim order made by the President. Mr Rumble denied knowledge of that second application. The Tribunal determined that the second application could not proceed until such time as the respondent had an opportunity to consider it and respond to it.
25.The Commissioner tendered a range of documents including:
(a)A letter of 10 May 2007 to Wayne Rumble warning him that in the Commissioner’s view he has been carrying on business as a real estate agent for some time without a licence (exhibit A3); and
(b)A letter dated 25 May 2007 from the Commissioner to Wayne Rumble informing him that he was disqualified from holding a real estate agent’s licence for 3 years by reason of his former role as a director of Merrewa P/L which had been liquidated and wound up ((exhibit A4);
26.Ms Soper tendered a written outline of her submissions which are very useful and bear repeating in full:
The Commissioner for Fair Trading (“the Commissioner”) has brought before the ACT Civil and Administrative Tribunal (“the Tribunal”) an application for disciplinary action pursuant to section 42 of the Agents Act 2003 (“the Agents Act”).
The Commissioner alleges that the respondent contravened section 75 of the Agents Act, which is a ground for occupational discipline.
It is alleged that the respondent breached section 75 of the Agents Act twice, through employing Mr Wayne Rumble and Ms Erika Hall to provide a service in relation to the respondent’s business that those persons must be licensed or registered to provide.
The Legislative Scheme
The Agents Act provides a licensing regime for agents, with an emphasis on only honest and
appropriately trained persons obtaining an agent’s licence (Division 3.2 of the Agents Act)
or a salespersons registration (Division 4.2 of the Agents Act). Section 18 of the Agents Act
provides that real estate agents must be licensed and section 45 provides that real estate sales
people must be registered.
As stated above, the Commissioner is alleging that there have been 2 breaches of section 75 of the Agents Act. Section 75 of the Agents Act places an obligation on licensed agents, such as the respondent, to ensure that those persons that they employ to carry out real estate agent services have the appropriate licence or registration to do so. Section 75 is reproduced below:
75(1) This section applies to a licensed agent who is a licensed real estate agent, licensed stock and station agent or licensed business agent.
(2) A licensed agent commits an offence if—
(a) the agent employs a person to provide a service, in relation to the agent’s business, that a person must be licensed or registered to provide; and
(b) the person provides the service; and
(c) either—
(i) the person is not licensed or registered to provide the service; or
(ii) the person is licensed or registered to provide the service but the licence or registration is suspended.
Maximum penalty: 50 penalty units.
(3) An offence against subsection (2) is a strict liability offence.
A distinction is drawn in the Agents Act between an agent and a salesperson. Both a real estate agent and a salesperson perform “real estate agent services”, as set out in section 8(2) of the Agents Act. The main difference between an agent and a salesperson is that an agent carries on business through offering real estate agent services for principal or reward; whereas a salesperson is an employee that provides real estate agent services. Either way, if a person is carrying out real estate agent services, they must be either licensed or registered to do so under the Agents Act.
When interpreting section 75 of the Agents Act, the definitions contained in the Agents Act of a “salesperson”, an “agent”, “carries on business as”, “employ” and “employee” are of assistance. These definitions are all reproduced below, in addition to section 8 of the Agents Act, which makes provision in relation to “carrying on a business as a real estate agent” and what constitutes a “real estate agent service”:
agent—
(a) means a person who carries on business as—
(i) a business agent; or
(ii) an employment agent; or
(iii) a real estate agent; or
(iv) a stock and station agent; or
(v) a travel agent; and
(b) for division 3.4 (Occupational discipline—agents)—see section 40.
carries on business as—
(a) a business agent—see section 10; or
(b) an employment agent—see section 12; o
(c) a real estate agent—see section 8; or
(d) a stock and station agent—see section 9; or
(e) a travel agent—see section 11.
salesperson means a person who, as an employee, provides—
(a) a business agent service; or
(b) a real estate agent service; or
(c) a stock and station agent service.
employ includes—
(a) engaging a person on a contract of service; and
(b) for a corporation, having a person as director or other member of its governing body.
employee—
(a) means—
(i) any person employed, regardless of how remunerated; and
(ii) a person engaged on a contract of service; and
(b) for a corporation, includes a director or other member of its governing body.
8(1) A person carries on business as a real estate agent if the person provides, or offers to provide, a real estate agent service for a principal for reward.
(2)Each of the following is a real estate agent service:
(a) buying, selling, exchanging, leasing, assigning or otherwise disposing of land;
(b) negotiating with, or inducing or attempting to induce, a person to—
(i) buy, sell, exchange, lease, assign or otherwise dispose of land; or
(ii) enter into, or make or accept an offer to enter into, a contract to buy, sell, exchange, lease, assign or otherwise dispose of land;
(c) collecting payments under a lease;
(d) collecting payments under a mortgage of land or payments under a terms contract for land;
(e) acting as manager of an owners corporation for a units plan;
(f) any other service prescribed by regulation for this section.
(3)To remove any doubt, a person does not carry on business as a real estate agent only because the person carries on business as a stock and station agent.
The Evidence before the Tribunal: Charge 1: Employment of Wayne Rumble
The first charge is that:
The respondent has breached section 75(2) of the Agents Act 2003, in that it
employed Mr Wayne Rumble to provide a service, in relation to the respondent’s
business, which Mr Wayne Rumble must be licensed or registered to provide and Mr
Wayne Rumble provided this service when he was not registered or licensed to do so.
There are 4 elements that must be established that prove a contravention of section 75 of the
Agents Act. In relation to Charge 1, these elements are:
(1) That the respondent, Rumbles Realty Pty Ltd, was at all material times the holder of a real estate agent licence:
The evidence that demonstrates that the respondent is a licensed agent is the evidentiary
certificate, made pursuant to section 173 of the Agents Act, dated 26 July 2010 (attachment
1 to the application lodged on 5 October 2010). It states that the respondent has been the
holder of a real estate agent licence since 3 December 2007.
(2) From 14 August 2008 to present, the respondent has employed Mr Wayne Rumble as a real estate agent or salesperson
Attachment Vi of Katrina Fleck’s statement, dated 15 September 2010, is a census of
personnel employed in ACT real estate agencies. In this census, Wayne Rumble describes
himself as an Office Manager, although he does not indicate whether his employee duties
require registration.
There is a substantial amount of evidence that indicates that Wayne Rumble is employed as
a real estate agent or salesperson, which includes:
(a) Wayne Rumble holds himself out to be a Sales Consultant in online
advertisements for properties for sale, as demonstrated through attachment Al and Ii of Katrina Fleck’s statement, dated 15 September 2010.
(b) Wayne Rumble carries out property inspections for leased properties, as
demonstrated through attachment Cl, Li and Ml of Katrina Fleck’s statement, dated 15 September 2010.
(c) Wayne Rumble enters into exclusive agency agreements to sell properties for
principals for commission, as demonstrated through attachment Fl, 01 and Ri of Katrina Fleck’s statement, dated 15 September 2010.
(d) Wayne Rumble advises tenants of rent increases, as demonstrated through
attachments Dl and El of Katrina Fleck’s statement, dated 15 September 2010.
(e) Wayne Rumble acts for principals on property sales and holds himself out to be an agent for these purposes, as demonstrated through:
• Requesting contracts for sale to be drawn up and front pages of contracts for sale (attachments G1a, Gib, Pia, Pib, Sia and Sib of Katrina Fleck’s statement, dated 15 September 2010).
• Writing to tenants to advise them that the property that are renting is for sale (attachments B 1 and Ni of Katrina Fleck’s statement, dated 15 September 2010).
• Writing to principals to advise them in relation to the proposed sale of their property (attachment Ti of Katrina Fleck’s statement, dated 15 September 2010).
• Writing sales reports (attachments 31 and Qi of Katrina Fleck’s statement, dated 15 September2010).
(3) Wayne Rumble carried out the services of a real estate agent/salesperson
As described above, Wayne Rumble carried out numerous real estate agent services, as
defined in the Agents Act. The table below sets out these services and other evidence before the Tribunal, and shows how this evidence falls within the definition of a “real estate agent service” contained in section 8 of the Agents Act:
Evidence
How the evidence constitutes a “real estate agent service” under section 8 of the Agents Act
Wayne Rumbles holds himself out to be a Sales Consultant in online advertisements for properties for sale, as demonstrated through attachment Al and Ii of Katrina Fleck’s statement, dated 15 September 2010.
This is attempting to induce a person to buy land: section 8(2)(b)(i) of the Agents Act.
Wayne Rumble carries out property inspections for properties that have been leased, as demonstrated through attachment Cl, LI and Ml of Katrina Fleck’s statement, dated 15 September 2010.
This is leasing land: section 8(2)(a) of the Agents Act.
Wayne Rumble enters into exclusive agency agreements to sell properties for principals for commission, as demonstrated through attachment Fl, 01 and Ri of Katrina Fleck’s statement, dated 15 September 2010.
This is negotiating with a person to sell land: Section 8(2)(b)(i) of the Agents Act.
Wayne Rumble advises tenants of rent increases, as demonstrated through attachments Dl and El of Katrina Fleck’s statement, dated 15 September 2010.
This indicates that Wayne Rumble is collecting payments under a lease: Section 8(2)(c) of the Agents Act.
Wayne Rumble acts for principals on property sales and holds himself out to be an agent for these purposes, as demonstrated through• Requesting contracts for sale to be drawn up and front pages of contracts (attachments G 1 a, Gib, Pla, Pib, Sia and Sib of Katrina Fleck’s statement, dated 15 September2010):
• Writing to tenants to advise them that the property that are renting is for sale (attachments Bi and Ni of Katrina Fleck’s statement, dated 15 September 2010).
• Writing to principals to advise them in relation to the proposed sale of their property (attachment Ti of Katrina Fleck’s statement, dated 15 September 2010).
• Writing sales reports (attachments Ji and Qi of Katrina Fleck’s statement, dated 15 September 2010).
This is selling land: Section 8(2)(a) of the Agents Act.
Paragraph 7 of Katrina Fleck’s statement indicates that Wayne Rumble told her “...Karen is the lead agent but I am working with her on the sale” and “. . .I will be able to show you through if you are interested.”
This indicates that Wayne Rumble is selling land: Section 8(2)(a) of the Agents Act.
It also indicates that he is attempting to induce a person to buy land: section 8(2)(b)(i) of the Agents Act.
The statutory declaration of Andrew Debonii, dated 5 November 2010, indicates that Wayne Rumble signed his tenancy agreement as “agent”, and that Wayne Rumble conducted a property inspection and discussed lease termination and leasing fees with him.
This is leasing land: section 8(2)(a) of the Agents Act. This also indicates that Wayne Rumble is collecting payments under a lease: Section 8(2)(c) of the Agents Act.
(4) Wayne Rumble was not licensed to carry out the services of a real estate agent/salesperson
The evidence that demonstrates that Wayne Rumble was not licensed or registered is the
evidentiary certificate, made pursuant to section 173 of the Agents Act, dated 25 October
2010 (filed undercover of letter dated 22 November 2010). This certificate states that Wayne
Rumble has never been a licensed real estate agent or salesperson.
The Evidence before the Tribunal: Charge 2: Employment of Erika Hall
The second charge before the Tribunal is:
The respondent has breached section 75(2) of the Agents Act 2003, in that it employed Ms
Erika Hall to provide a service, in relation to the respondent’s business, which Ms Erika Hall
must be licensed or registered to provide and Ms Erika Hall provided this service when she
was not registered or licensed to do so.
As stated above, there are 4 elements that have been established that prove a contravention
of section 75 of the Agents Act. In relation to Charge 2, these elements are:
(1)That the respondent, Rumbles Realty Pty Ltd was at all material times the holder of a real estate agent licence
The evidence that demonstrates that the respondent is a licensed agent is the evidentiary
certificate, made pursuant to section 173 of the Agents Act, dated 26 July 2010 (attachment
1 to the application lodged on 5 October 2010). It states that the respondent has been the
holder of a real estate agent licence since 3 December 2007.
(2) From 21 November 2008 to 23 April 2010, the respondent employed Ms Erika Hall as a salesperson or real estate agent
There is a substantial amount of evidence that indicates that the respondent employed Erica
Hall. This includes:
a) Erica Hall held herself out to be a Property Manager for the respondent on her
business card, as demonstrated in attachment B2 of Katrina Fleck’s statement, dated 15 September 2010.
b) Erika Hall signed Rumbles Real Estate lease agreements as the lessors’ “agent”,
which is demonstrated by attachments C2, G2, and L2 of Katrina Fleck’s statement, dated 15 September 2010.
c) Erika Hall conducted routine inspections of leased properties for the respondent, as demonstrated by attachments D2, E2, F2, H2, 12, J2, K2, N2 and 02 of Katrina Fleck’s statement, dated 15 September 2010.
d) Erika Hall was working at the respondent’s premises on 12 March 2010 when files were seized by ORS inspectors.
(3) Erika Hall carried out the services of a real estate agent/salesperson
As described above, Erika Hall carried out numerous real estate agent services, as defined in
the Agents Act. The table below sets out those services, and how they fall within the
definition of a “real estate agent service”, contained in section 8 of the Agents Act:
Evidence
How the evidence constitutes a “real estate agent service” under section 8 of the Agents Act
Erika Hall signed Rumbles Real Estate lease agreements as the lessor’s “agent”, which is demonstrated by attachments C2, G2, and L2 of Katrina Fleck’s statement, dated 15 September 2010.
This is leasing land: section 8(2)(a) of the Agents Act.
Erika Hall conducted routine inspections of leased properties for the respondent, as demonstrated by attachments D2, E2, F2, H2, 12, 32, K2, N2 and 02 of Katrina Fleck’s statement, dated 15 September 2010.
This is leasing land: section 8(2)(a) of the Agents Act.
(4) Erika Hall was not licensed to carry out the services of a real estate agent/salesperson
The evidence that demonstrates that Erika Hall was not licensed registered is the evidentiary
certificate, made pursuant to section 173 of the Agents Act, dated 10 August 2010 (filed as
attachment 3 to application dated 5 October 2010). This certificate states that Erika Hall has
not held a real estate licence or salesperson registration since 1 November 2008.
Submissions
Charge 1: Employment of Wayne Rumble
The Commissioner has brought evidence before the Tribunal that indicates that Wayne
Rumble has been providing real estate agent services for over 2 years. Wayne Rumble is
required to be licensed as either a real estate agent or a salesperson to do this. He is not
eligible to be licensed or registered. He has been informed by the applicant on numerous
occasions that he is not eligible to be licensed or registered under the Agents Act and that he
should not provide services in this regard, however, he has continued to disobey the law
through providing these real estate agent services.
Wayne Rumble is the Secretary of the respondent company. This makes him a part of the
respondent’s governing body, and consequently he satisfies the definition of an “employee”
contained in Agents Act.
Wayne Rumble has indicated on numerous occasions that he is employed as an Office
Manager. It is abundantly clear from the evidence that this is a sham; he carries out real
estate agent services and it appears that he is attempting to avoid the requirement to be
licensed or registered through classifying himself as an “Office Manager”.
In relation to determining whether there is a relationship of employment, there is common
law that indicates that if the expressed intentions of the parties are a sham, or the evidence
clearly established that the term categorising the relationship is misleading and contrary to
the established facts, then the term will be ineffectual (Cam & Sons Ply Ltd v Sargent (1940)
14 AU 162; Neale v Atlas Products (Vie) Ply Ltd (1955) 94 CLR 419 at 428; R v Foster; Ex
parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138 at 151;
Narich Pty Ltd v Commr of Payroll Tax (1983) 2 NSWLR 597; Australian Mutual Provident
Society v Allan (1978) 52 ALIR 407; Massey v Crown Life Insurance Co (1978) 1 WLR
676; Polkowski v Corporate Assoc pty Ltd; Wilson v Topaz Nominees Ply Ltd (1985) 10 JR
205 at 206). In Re Porter; Re Transport Workers Union of Australia (1989) 34 IR 179, Gray
J at 184 said “the parties cannot create something which has every feature of a rooster, but
call it a duck and insist that everybody else recognise it as a duck.”
The most reliable way to determine what employment relationship exists is to look at Wayne
Rumble’s conduct. The fact that Wayne Rumble provides real estate agent services and
holds himself out to be a sales consultant or real estate agent strongly indicates that he is
employed for this very purpose.
Pursuant to section 75 of the Agents Act, it is the respondent’s obligation to ensure that
employees are licensed — this obviously has not occurred, or it has occurred and the
respondent chose to disregard its obligations under the Agents Act. Either way, this is a
serious and long-standing breach of section 75 of the Agents Act.
The Tribunal can be comfortably satisfied that there is a ground for occupational discipline,
as the respondent has breached section 75 of the Agents Act. Accordingly, the Tribunal
should impose occupational discipline orders in accordance with section 66 of the ACT Civil
and Administrative Tribunal Act 2008.
Charge 2: Employment of Erika Hall
The Commissioner has brought evidence before the Tribunal that indicates that Erika Hall
provided real estate agent services whilst she was employed by the respondent, without
holding the appropriate licence/registration under the Agents Act.
The best indication that Erika Hall was employed as a real estate agent or salesperson is that
she was carrying out real estate agent services, which require her to have a licence or
registration.
It is the respondent’s obligation to ensure that employees are licensed. However, once again
there has been a serious breach of section 75 of the Agents Act by the respondent.
The Tribunal should be comfortably satisfied that there is a ground for occupational
discipline, as the respondent has breached section 75 of the Agents Act. Accordingly, the
Tribunal should impose occupational discipline orders in accordance with section 66 of the
ACT Civil and Administrative Tribunal Act 2008.
27.The respondent filed a statement from Ms Karen Lamaro dated 17 January 2011 (exhibit R7) which read:
1.This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
2.Wayne Rumble is employed as Office Manager at Rumbles Realty. His duties include the following:
a.Overseeing the running of the business
b.Plan, coordinate and supervise various business functions performed by other staff
c.Hiring & firing of staff
d.Consumable & stock control
e.Payroll & accounting duties including debtor control
f.Administrative & clerical duties
g.Taking phone calls, filing and everyday tasks necessary for the efficient running of the business
h.Complaint and conflict resolution
i.Ensure compliance for OH&S, taxation, accounting and legal requirements.
3.From time to time Wayne assists sales staff with placement of signboards and carrying of documents and may be called to give advice in this capacity as Office Manager.
4.In relation to evidence submitted by Katrina Fleck referred to as “B1 & H1” I recall after a disagreement with the tenants refusing entering to the property I asked the receptionist to prepare a letter advising the tenants of their obligations to provide access under the lease.
5.The first draft had been prepared with Wayne’s name at the bottom of the letter. I advised her that it should have my name on it and to send it out. It appears the first letter was sent and the second put on file. This has been an error by the Saturday receptionist.
28.Mr Rumble put the respondent’s case on the following bases:
(a)In relation to the charges that concern himself, that he was employed as an office manager and had only ever carried out the duties of an office manager and not those of an agent or salesperson;
(b)In relation to the charges that concerned Ms Hall, that the respondent understood that it was permissible for her to carry out the duties of an agent or salesperson whilst she was undertaking the studies to become qualified as such. Mr Rumble drew the Tribunal’s attention to regulation 8A which permitted the Commissioner to register persons undertaking relevant studies.
29.Ms Soper noted that no such registration existed in relation to Mr Hall so that regulation 8A was irrelevant. The strict liability nature of the office in section 75 was explained to Mr Rumble.
30.The Tribunal took the respondent through each of the allegations that pertained to Wayne Rumble set out in the Commissioners Submissions of 17 January 2011. The respondent was taken to the documents referred to in the Submission, being those documents which are attachments to the statement of Ms Fleck of 15 September 2011.
31.In relation to the allegation that Mr Rumble held himself out to be a sales consultant in online advertisements for properties for sale per attachment Al and I1, Mr Rumble denied any knowledge that Mr Johnstone’s company (Open2view) was listing Rumble Real Estate properties on line. Mr Rumble said that his only dealings with Open2view was to have photographs taken of properties.
32.In relation to the allegations that Mr Rumble carried out property inspections for leased properties per attachment Cl, L1 and Ml, Mr Rumble initially denied the allegation. He admitted that his signature appeared on L1 and this name appeared on the report to the owners following the inspection at L1 in which he was described as ‘property management’. The letter at M1 actually said ‘I recently conducted a routine inspection of your property’.
33.The statement from Mr Deboni ((exhibit A7) was put to Mr Rumble. In that statement Mr Deboni said that Mr Rumble personally attended his house for inspections and he listed various other functions carried out directly by
Mr Rumble during his tenancy. Mr Rumble refused to say whether he accepted or denied the content of Mr Deboni’s statement. Mr Rumble declined the invitation for Mr Deboni to be present for cross examination.34.In relation to the allegation that Mr Rumble entered into exclusive agency agreements to sell properties for principals for commission per attachment Fl, 01 and R1, Mr Rumble admitted his signature on the documents next to ‘agent’ but said that executing exclusive agency agreements for the sale of properties was a purely administrative action on behalf of the company consistent with his office management role.
35.In relation to the allegations that Mr Rumble advises tenants of rent increases by letters in his name as ‘director’ per attachments Dl and El, he said that he was unaware that his name was on the letters. He surmised that Ms Hall must have used an old letterhead.
36.In relation to the allegation that Mr Rumble acts for principals on property sales and holds himself out to be an agent for these purposes by requesting contracts for sale to be drawn up and front pages of contracts for sale (attachments G1a, G1b, P1a, P1b, S1a and S1b), Mr Rumble said that the placement of his name on the contracts was the solicitors doing and not his. He made this assertion notwithstanding that the sales instructions to the solicitors showed him as the agent.
37.In relation to the allegation that Mr Rumble acts for principals on property sales and holds himself out to be an agent for these purposes by writing to tenants to advise them that the property that are renting is for sale (attachments B 1 and N1), Mr Rumble admitted his signature on the documents and said that this was done in the capacity of office manager. However Mr Rumble’s letter at attachment N1 includes the statement:
I, Wayne rumble, will be the selling agent and will be in contact regarding access to
the property’
38.In relation to the allegation that Mr Rumble acts for principals on property sales and holds himself out to be an agent for these purposes by writing to principals to advise them in relation to the proposed sale of their property per attachment T1- Mr Rumble admitted his signature on the document. In the letter at T1 Mr Rumble told the vendor that he personally would assist the vendor’s tenant to find other accommodation.
39.In relation to the allegation that Mr Rumble acts for principals on property sales and holds himself out to be an agent for these purposes by writing sales reports per attachments J1 and Q1- Mr Rumble admitted his signature but said that this was within the duties of the office manager.
40.The Tribunal put to Mr Rumble that he from time to time attended the Tribunal in its tenancy jurisdiction to represent landlords in applications against tenants. He admitted this but again said that this was in his office management capacity.
41.After reviewing Mr Rumble’s response to the various allegations and the documents concerned, and noting that the respondent offered no defence to the charges relating to Ms Hall (other than ignorance of law), the Tribunal offered the respondent the opportunity to review its position. The respondent said that the charges relating to Mr Rumble continued to be defended.
42.Mr Rumble said that he supervised Ms Hall’s activities whilst she was with the company between 21 November 2008 and 23 April 2010. He said that he did not peruse all her letters and it was possible for her to send out letters with errors such as D1.
43.The Tribunal asked Mr Rumble about his business relationship with Ms Lamaro. He was asked about her shareholding in Rumbles Realty P/L. He said that she owed 70% of the shares in the company and he owned 30%. In cross examination Ms Soper put to Mr Rumble the ASIC search ((exhibit A6), which showed that there were only two shares both of which were owned by him. Mr Rumble said that his accountant must have made a mistake.
44.Mr Rumble said that there were five full time employees of the company.
45.He said that he would have involvement with sales instructions and other contracts only to the extent that the listing agents had failed to complete all the paper work properly. He denied offering any advice to clients. He said he only attended open houses or inspections to assist the agent or salesperson.
46.The content of paragraph 7 of Ms Fleck’s statement was put to Mr Rumble. This related to an incident where Ms Fleck phoned the respondent and asked about a particular property for sale. Mr Rumble answered the phone. Ms Fleck asked whether she needed to speak to Ms Lamaro about the inquiry and Mr Rumble is alleged to have said ‘no, Karen is the lead agent but I am working with her on the sale’. Mr Rumble is then alleged to have offered to show Ms Fleck through the house. Mr Rumble said that he could not recall the conversation.
47.Mr Rumble was asked whether he had ever attended properties alone during the period after 14 August 2008 to carry out inspections and prepare reports. After equivocation he admitted that he had.
48.He said that he ‘often’ attended ‘open houses’ with female agents or salespersons but only in an administrative capacity to help them.
49.Ms Fleck’s statements were taken into evidence. Mr Rumble did not wish to cross examine her.
50.The matter resumed on 18 January 2011. Mr Rumble indicated that he had a range of further documents that he wished to tender. Ms Soper sought an adjournment to permit her time to read and digest the new material.
51.The Tribunal raised with Mr Rumble the inconsistency between his evidence as to the shareholding in the company relative to that disclosed on the ASIC search. He was asked to be ready to address that issue on the resumed hearing.
52.Mr Rumble said that he would be calling further witnesses and Ms Soper indicated that she would have Ms Fleck present and possible other witnesses.
53.The matter was adjourned part heard and orders were made for the filing of any further evidence by the parties.
Between the hearings
54.On 31 January 2011 the respondent filed a statement from Mr Rumble dated 31 January 2011 ((exhibit R3) which read:
Please find submission for scheduled hearing 7 March 2011.
1. An agent’s duties are extensive and cover many aspects from farming or prospecting, appraisal, market research, pricing, marketing advice, and the actual face to face contact with potential buyers and the eventually negotiation with the buyer and vendor. At the end of this process the agent or salesperson will receive a commission. The definition of an agent encapsulates their conduct over this entire process and is never defined by isolating one or two tasks. In this day and age individuals are employed to take on specific duties such as marketing which can be further broken down to photography, digital photo manipulation, editing and uploading of data to web sites etc. Furthermore, others perform tasks such as sign production and erection, copy writers and in house print production and even companies offer their services to prospect for potential sellers. In addition, individuals that perform accounting and administrative tasks within a real estate office are commonplace in the industry. None of these businesses or individuals that perform these tasks can be considered real estate agents. It is only when one brings all these together and eventually forms the critical agent relationship with both buyer and seller that they can be truly considered an agent.
2. The evidence provided by the commissioner that Wayne Rumble has/is conducting himself as a real estate agent is fragmented, incomplete and only gives an indication that some of this duties that he performs overlaps with some that an agent would perform. In any case these are covered in this scope of duties as Office Manager. There is no direct evidence that he has provided a real estate service for a principal for reward under the definitions of Section 8 Part 2 of the Agents Act 2003. Furthermore, he does not meet the definition of an agent as there is no evidence that he has formed the key relationship with the buyer and seller and no evidence that he has taken commissions for alleged real estate activities.
3. The Commissioner’s case is based on the fact that Mr. Rumble has been seen assisting an agent at a property open. I see no difference between an agent bringing along a friend or family member or even a student who is undertaking work experience to a real estate open and allowing them to experience it. If for example, an individual, solely on their own merits, advertised and conducted an open and gave real estate advise and formed a relationship with buyer and seller then it would be fair to consider them acting as an agent. There is no evidence that this has occurred.
4. Evidence submitted from Open2view which is a company that offers photographic services and has done so for Rumbles Realty for some time, shows no more than that these type of companies can use and distribute material in their own right. Rumbles Realty has no control over what Open2view publishes and the material would suggest that open2view has merely made the assumption that Mr. Rumble who arranged the photography is the agent. On the contrary, we have overwhelming evidence that others have conducted the sales as agents. This material that is prepared and distributed directly by Rumbles Realty, in many forms, shows the true picture.
5. All that can be reasonably deducted here is that Mr. Rumble has performed some specific tasks in the overall sale process in the same way Open2view has done so.
6.In light of the above Rumbles Realty has not breached section 75 of the Agents act 2003 and consequently all charges should be dismissed.
55.The respondent filed a statement of evidence from Mr Jeremy Nguyen dated
31 January 2011) ((exhibit R5):
1. This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
2. I was the co owner of 74 Tom Roberts Ave Conder along with my mother Kimly Nguyen.
3. We have known Mr Wayne Rumble for some time and he often comes to our café. We consider him to be a family friend. We know he works at Rumbles Real Estate.
4. In early April 2010 Wayne was having lunch in our café and we said we were considering selling our Conder property. He said he would pass on our request for an appraisal of the property with a salesperson when he returned from lunch break. A few days later we received a visit from Karen Lamaro, she had inspected the property and indicated a sale price of $425,000 and left us some paperwork to sign and return.
5. The following week Wayne came into the shop to have coffee and we asked him to go through the forms Karen had left as English is our second language. He advised that he was not the agent but would help us fill in the forms. He assisted us as a friend and returned the forms back to our agent Karen Lamaro.
6. I can confirm that Karen Lamaro was the marketing agent for the sale of the house and she was able to find a buyer quickly at the asking price. We were very happy with the services Karen provided.
56.On 28 February 2011, the Commissioner filed and served witness statements from Ericka Hall dated 23 February 2011, Lachlan Johnson dated 24 February 2011 and Karen Fleck dated 28 February 2011.
57.The statement from Ms Hall ((exhibit A8) read:
1.This statement made by me accurately sets out the evidence which I would be prepared if necessary, to give in Court as a Witness.
2.This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
3.I was employed as a property manager at Rumbles Realty Pty Ltd from the beginning of November 2008 until 23 April 2010.
4.During the term of my employment I was not a licensed real estate agent or a registered sales person in the ACT.
5.My duties as a property manager included the following:
·Reception work;
·Conducting open house inspections for rental properties;
·Completing tenancy agreements;
·Conducting routine inspections and maintenance checks; and
·Responding to enquiries about rental properties.
6.I know that Karen Lamaro is licensed as the licensee-in-charge of Rumbles Realty Pty Ltd, and her husband Wayne Rumble is not a licensed real estate agent or a registered sales person.
7.I was told that Wayne Rumble was the Director of Rumbles Realty Pty Ltd.
8.During the term of my employment, Wayne Rumble performed the following duties:
·Assisted me with property management by conducting routine property inspections and signing tenancy agreements;
·Prepared his own correspondence regarding properties that he was managing or selling;
·Conducting open house inspections for sales properties;
·Negotiated sales and settlements of properties;
·Often used licensed agents such as Karen Lamaro, Anthony Connell and Margaret Salvador in advertising properties where he was the main agent;
·Had full control of the trust accounts and incoming/outgoing monies; and
·Liaised with solicitors regarding the sales of properties.
9.During the term of my employment, Karen Lamaro was not involved in the business on a day to-day basis. Karen would drop in to the office occasionally but had other forms of employment. Karen did not conduct any sales duties.
58.The statement from Mr Johnstone of 24 February 2011 ((exhibit A9) read:
(1)I am the photographer franchisee for Open2view.com.au for the Canberra, Goulburn and Yass region.
(2)Rumbles Realty Pty Ltd is a client of Open2view.com.au. The following people have sales consultant accounts under Rumbles Realty Pty Ltd:
(i)Anthony Connell
(ii)Ghada Fulto
(iii)Margaret Salvador, and;
(iv)Wayne Rumble
(3)Karen Lamaro does not have a profile on Qpen2view corn. au.
(4)I am of the understanding that Wayne Rumble is the licence holder of Rumbles Realty Pty Ltd.
(5)Wayne Rumble has attended photography sessions for properties being sold by Rumbles Realty Pty Ltd.
(6)Wayne Rumble has an agent login which enables him to update and amend the details for his profile and property listings.
59.The statement from Ms Fleck of 28 February 2011 (exhibit A 10) read:
…..
3.My full name is Katrina Louise Fleck and I am over the age of 18 years. I am employed by the ACT Office of Regulatory Services (ORS) as an Investigator, appointed under section 34 of the Fair Trading (Australian Consumer Law) Act 1992 in the name of Katrina Fleck, identification number 14816.
4.This statement is made to provide additional information to the statements signed by me on 15 September 2009 and 10 January 2011 for the period.
5.On 20 January 2011, I conducted a search of the internet site open2view.com.au for information about the services provided by the website. The website advertises “Real estate agent access to images and the listing so that text can be edited and photos can be used for all property marketing”. I printed this document, I now produce this document as Attachment 1.
6.On 27 January 2011, I served a notice to produce information to Open2view.com.au under section 52 of the Fair Trading (Australian Consumer Law) Ac! 1992.
7.On 31 January 2011, 1 served a notice to produce information to Hays Personnel under section 52 of the Fair Trading (Australian Consumer Law,) A Ct 1992.
8.On 4 February 2011, I received an email from Cassandra Beggs at Hays Personnel containing documents regarding the employment of Karen Lamaro. The documents show that Karen Lamaro was employed by Hays Personnel between the period of week ending 27 February 2009 and week ending 18 December 2009. The documents contained:
(i).A Workplace Agreement, Terms of Engagement signed by Karen Lamaro and dated 19 February 2009. I now produce this document as Attachment 2.
(ii).A summary of dates and hours worked by Karen Lamaro. I now produce this document as Attachment 3.
9.On 7 February 2011, I received an email from Lachlan Johnstone at Open2view.com.au containing documents regarding the account held by Rumbles Realty Pty Ltd. The documents contained:
(i)A list of Agents registered on the open2view website under the name Rumbles Realty Pty Ltd. I now produce this document as Attachment 4.
(ii)A list of properties in the debtor name of Rumbles Real Estate (Wayne Rumble) with administration records of each property. I now produce this document as Attachment 5
10.On 28 February 2011, I conducted an organisational search for Rumbles Realty Pty Ltd. I now produce this document as Attachment 6.
60.On the same day the respondent filed and served a statement from Ms Lamaro dated 28 January 2011 ((exhibit R6) which read:
1. This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
2. I had arranged an open time for 97/9 Murdoch Street Lyneham from 12-12.15 on the 8 December. This was advertised on www. realestate.com.au , and I attended my open arriving at a few minutes to 12 accompanied by Wayne Rumble. I had asked Mr Rumble to attend as the last time I was at the property I had difficulty with the deadlock.
3. I asked Mr Rumble to open the property, Mr Rumble was able to open the lock without too much difficulty. A number of people were waiting and came in. I received a phone call from the office during the open and attended to the call for approximately 2-3 minutes. As I spoke on the phone I observed two couples walk through the property with one of those taking an application.
4. As I was finishing my phone call one female approached Mr Rumble with interest. She appeared to ignore me, which seemed strange. She asked Mr Rumble whether pets were allowed. Mr Rumble responded that he had a friend who lived at the complex and believed that pets were not permitted. She picked up an application form. As the agent, I then approached the female and said that pets were generally not permitted in the complex and could I be of further assistance. She did not acknowledge me and continued to direct her questions to Mr Rumble. She took an application form and departed. I spoke with a number of other prospective tenants and at the expiry of the 15 minutes I closed up and left the property. I asked Mr Rumble to check the deadlock that it was locked and left the property.
Subsequently I received an application for tenancy that was successful. I did not receive an application from Ms Cogger.
5. Mr Rumble at no time indicated that he was an agent, he did not act as an agent at any time and gave answers to questions from his general knowledge that any reasonable layperson would do. There is no evidence that the marketing referred to Mr. Rumble.
6. I believe that Ms Cogger was on a mission and that is why she approached Mr Rumble asked him a number of preconceived questions.
61.On 28 February 2011 the Commissioner put the respondent on notice in writing that Ms Lamaro was required for cross examination at the hearing on
7 March 2011.
Hearing on 7 March 2011
62.After some delays in filing evidence and negotiations over suitable hearing dates, the hearing was resumed on 7 March 2011 with the same representation present.
63.Prior to the commencement of the hearing, Ms Soper for the Commissioner requested a direction in the absence of the Mr Rumble. Ms Soper informed the Tribunal that Ms Hall held fears for her safety if she testified against the respondent and wanted her evidence taken in private. The Tribunal was not satisfied that there was any evidence to justify Ms Hall’s fears and declined to make the order sought.
64.At the hearing the Commissioner tendered a statement from Caroline Cogger dated 10 January 2011 ((exhibit A14) and from Katrina Fleck dated 10 January 2011 ((exhibit A15).
65.The statement from Ms Cogger read:
1.This statement made by me accurately sets out the evidence which I would be prepared if necessary, to give in Court as a Witness.
2.This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
3.My full name is Caroline Jane Alice Cogger and I am over eighteen years of age. I am commonly known as Caroline Cogger. I am employed by the ACT Office of Regulatory Services (ORS) as an Investigator, appointed under section 8 of the Fair Trading (Consumer Affairs) Act 1973 in the name of Caroline Cogger, identification number 43469.
4.On 8 December 2010 at approximately 12.02pm, Investigator Fleck and I attended an open house inspection at a residential property located at Unit 97 “The Pines” 5 Murdoch Street, Lyneham ACT 2602. At the time of arriving, a young female and young male were approaching the property for the open house inspection. I got out of the car and walked over to the property. Another tall young male was already waiting at the property. There was no agent present at this time.
5.At approximately 12.05pm an older male, who I now know to be Mr Wayne RUMBLE, attended the property and entered the courtyard. He then unlocked the property and invited myself and the other people present into the property.
6.Upon entering the property, I saw Mr RUMBLE place documents on a table and proceeded to turn on some of the lights. I then walked through and inspected property for approximately 3 minutes.
7.During the time I was looking through the property, I overheard discussions Mr RUMBLE was having with the other persons present. I heard him say words to the effect of “The property is currently vacant” and “The property comes fully furnished”. I then walked into the living area of the property where Mr RUMBLE was having a discussion with the tall young male. The male asked Mr RUMBLE how much the property was being rented for. I heard Mr RUMBLE reply “$410 per week”. The young male then asked Mr RUMBLE about being able to bring his own lounge. I heard Mr RUMBLE reply words to the effect of “The owner wants to rent the property fully furnished and you probably would not have the room for another lounge”. At this time I noticed a short female, who I now know to be Karen Lamaro, in the courtyard area of the property talking on the phone.
8.After Mr RUMBLE had spoken to the male, I then asked Mr RUMBLE for a copy of the application form which he replied “Please take a copy from the table” (refer to Attachment A). I then asked Mr RUMBLE for a business card to contact him on. He reached into his top pocket and produced a business card which stated his name and that he was a consultant for Rumbles Realty Pty Ltd (refer to Attachment B). At this time, I noticed Ms Lamaro coming through the front door of the property and was still talking on her phone. She ended her phone call once she was inside.
9.I then asked Mr RUMBLE whether pets were allowed at the property, to which he replied “What kind of a pet”. I said to Mr RUMBLE that it was a dog but did not live with me and just came to visit from time to time. Mr RUMBLE then looked to Ms Lamaro and said words to the effect of “Karen, do you know anything about pets here”. Ms Lamaro then said words to the effect of “Generally not in the Pines, but I’m sure that if he is not living with you, it’s no one else’s business what you do”. Mr RUMBLE then said words to the effect of “Because all the Unit Titles Act has changed a lot of places don’t allow pets now”.
10.I then thanked Mr RUMBLE and left the property. I returned to the car and told Investigator Fleck that Wayne Rumble had discussed the property with me and had given me an application form and his business card. We then left the property.
66.The statement from Ms Fleck read:
1.This statement made by me accurately sets out the evidence which I would be prepared if necessary, to give in Court as a Witness.
2.This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
3.My full name is Katrina Louise Fleck and I am over the age of 18 years. I am employed by the ACT Office of Regulatory Services (ORS) as an Investigator, appointed under section 8 of the Fair Trading (Consumer Affairs) Act 1973 in the name of Katrina Fleck, identification number 14816.
4.On 8 December 2010 I conducted an internet search of the website I printed a copy of an advertisement for a rental property 97/9 Murdoch Street, Lyneham ACT 2602 and I noted that the property was advertised to be open for inspection on 8 December 2010 between 12.00pm and 12.15pm.
5.On 8 December 2010 at approximately 12.02pm, Investigator Cogger and I arrived at the property 97/9 Murdoch Street, Lyneham ACT 2602. Investigator Cogger left the car and I saw her walk across the driveway and into the carport. I remained in the car.
6.At approximately 12.05pm, I saw a white car with the Rumbles Realty logo printed on it drive up and park inside the carport outside the property. I saw a male, I know to be Wayne Rumble, and a female, I know to be Karen Lamaro, exit the vehicle and walk towards the property and out of view.
7.At approximately 12.07pm, I saw Karen Lamaro walk back into view and into the carport. I saw her holding something against her ear and talking.
8.At approximately 12.09pm, I saw Karen Lamaro leave the carport and walk towards the property. I saw that she was still holding something against her ear.
9.At approximately 12.11 pm, I saw Investigator Cogger walk into the carport and across the driveway towards me. Investigator Cogger entered the car and told me that Wayne Rumble had discussed the property with her. Investigator Cogger told me that Wayne Rumble had provided her with an application form and his business card and showed them to me. I then started the car and we left the property.
67.The respondent tendered a set of submissions ((exhibit R2) which read:
Deny breach of section 75 of the Agents Act for Wayne Rumble and Erika Hall.
1. Wayne Rumble is employed as Office Manager. His roll and activities are not described under Part 2 section 8 (2) of the Agents Act and accordingly means he is not conducting himself as a real estate agent. He does not receive payments of commissions and is not involved in the promotion, negotiation, sale, or renting of property.
2. He is enrolled in a Diploma of Property (real estate) course of study and at its completion will be eligible to obtain a real estate registration or licence.
3. Erika Hall was enrolled in a traineeship with the Commonwealth Government and undertaking a certificate IV in real estate.
4. The provisions of CPD require the trainee to have on the job training in order to meet the course requirements.
5. The requirements of the CPD training cannot be met unless on the job training is undertaken.
6. It has been commonly accepted in the real estate industry that individuals will work in the industry whilst training pursuant to The provisions of Part3 8A (1) (a) & (b) of the Agents Regulations 2003. A “blind eye” has been was adopted by the Commissioner.
Orders sought :
1. That no action be taken against Rumbles Realty in relation to alleged breaches 75(2).
2. That the Commissioner allows Wayne Rumble to apply for a registration or licence.
3. No further discriminating again Wayne Rumble and Rumbles Realty Commissioner on the bases of the past association with Bryan Rumble and Bryan Rumble Real Estate.
68.Annexed to the respondent’s submission were a range of documents
(exhibit R1). The first of these documents was an Australian Apprenticeship Training Plan 2008 pertaining to Ms Hall. This document indicated that
Ms Hall commenced a training program with the respondent from
11 December 2008 for a Certificate IV in Property (Real Estate). The list of training was quite specifically that of a real estate agent.69.The respondent tendered a second submission ((exhibit R4) that addressed the evidence set out in the annexures to the statement of Ms Fleck of
15 September 2010. The respondent’s submissions read as follows. The alpha-numerical notations are references to the annexures in the statement of Ms Fleck’s statement. The references to purely alphabetical annexures are references to the annexures to the respondents submission:Notes relating to Plaintiff evidence- In reply
Al & I1: This is a 3rd party website administrated by the photographers that provide us
with our photos. See annexure”A” showing account for photo services ordered by Wayne
Rumble.
Annexure “B” shows the Rumbles Allhomes advertisment as listed online with the agent’s
name Karen Lamaro.
Annexure”C” is the property flyer handed to buyers with again shows the marketing agent
to be Karen Lamaro.
Annexure “D” is the Realestate.com.au online ad also administered by Rumbles. There is
no mention of Wayne Rumble
C1: Checking our records shows that Stacie Schlizio was the property manager at the time
and annexure”E” shows that she conducted the inspection of the 18 September 2008.
Annexure “F” provides further evidence that she was acting for the owner and in regular
contact with him.
Dl/El: These letters were inadvertently produced from previous out of date electronic
form letters. Wayne Rumble is not the director and did not sign this letter. Annexure “G”
is a sample of the correct letter sent to lessors/lessee’s.
G1: Annexure “G” shows correspondence from the marketing agent Karen Lamaro and
“I” is the sales transaction sheet showing Ms Lamaro’s commission. Also refer to
Annexures “B,C &D”. There is no question that Ms Lamaro was the marketing agent.
Bl/Hl: Refer to Karen Lamaro’s witness statement.
Kl: (and De boni witness statement): To complete the document, Wayne Rumble has
signed on behalf of the agent. Without this section completed the lease is not a binding
legal document. This type of compliance is covered under Mr Rumble’s duties as Office
Manager. This is not a common practice. See previous lease marked Annexure “J”.
Annexure K”is the invoice send to Andrew De boni noting Satcie Schlizio as his property
manager. Annexure “L” is a fax from Andrew De bonito Stacie Schlizio with his
application.
Ml/Ll :lt is unclear whether Mr Rumble conducted the inspection of the 1 4th August
2008.Annexure “M” is the inspection letter signed by Stacie Schlizio indicating that the
inspection will take place on the 7th August 2008. Ml is likely to be an error that the typist
has made.
Nl: Admission, but likely an error. Annexures “N,O,P,Q, R & 5” demonstrate that
Margaret Salvador was the marketing agent.
P1 a/P1 b: This administrative task to fax the solicitors on behalf of the salesperson is one
of Mr Rumble’s duties covered under his employment duties. It does not mean in anyway
that he is the agent.
Qi /R1 /T1: The marketing agent for this property was Karen Lamaro. Annexure “T”
demonstrates this.
Summary:
There appears to be an overlap with Mr Rumble’s duties as Office Manager of Rumbles
Realty and some minor administrative tasks that contribute to the sale or rental of
properties. This is expected in this environment. This mere fact does not make Mr Rumble
a real estate agent or that he is performing the duties of an agent or salesperson. To satisfy
Section 8 of the Act, he would need to undertake these tasks holistically and completely in
order to be seen to be “buying, selling, exchanging leasing assigning or otherwise
disposing of land”.
Furthermore there is insufficient evidence that he has in any significant manner:
“negotiated with, or induced or attempted to induce, a person to-
(1) buy, sell, exchange, lease assign or otherwise dispose of land or
(2) enter into, or make or accept an offer to enter into a contract to buy sell exchange lease assign or otherwise dispose of land.
70.At the commencement of the hearing in the morning Mr Rumble indicated that he wished to call further witness from whom no statements had been filed and served. These witnesses were Mr Connell, Ms Salvatore and the book keeper known as Linda. The Tribunal pointed out that the respondent had been provided with ample opportunity to do this in course of the proceedings and that it was not satisfactory to announce this intention at this stage of the proceedings. Nevertheless, the Tribunal acceded to this request, albeit that it necessitated yet a further adjournment.
71.Evidence was taken from Ms Fleck, Ms Cogger, Mr Deboni and Mr Johnson, for the Commissioner, and from Mr Nguyen, Ms Lamaro and Mr Rumble for the respondent. In each case, the statements of the respective witnesses served as their evidence in chief after which the other party was able to cross examine each witness.
72.Ms Fleck was cross examined at some length by Mr Rumble on her recollection of the telephone conversation with himself concerning the Hodgson Crescent house. Mr Rumble put to her that he had only used the plural ‘we’ when speaking on behalf of the respondent. Ms Fleck said she took contemporaneous notes at the time and was generally unshaken in her recollection. Ms Fleck was a credible and impressive witness.
73.Ms Cogger was cross examined on her recollection of the open house incident on 8 December. She too was unshaken in her evidence set out in her statement and was a credible witness.
74.In addition to the matters set out in her statement, Ms Cogger testified that the registration of salespersons was her responsibility and that there was no policy of the Commissioner that permitted unqualified persons to carry on business as salespersons whilst they were studying for their qualifications. In particular, she said that Ms Hall held no such registration and had never been granted any exemption of any form by the Commissioner to work as a salesperson.
75.Mr Deboni was cross examined. It was put to him that Mr Rumble that did not carry out the inspection of his tenancy. Mr Debonii was adamant that he dealt only with Mr Rumble and believed that Mr Rumble was an agent.
76.Mr Johnson gave evidence. He said that Mr Rumble had his own log in account with Open2view. All listings by Open2view containing Mr Rumble as the listing agent were automatically sent to Mr Rumble by email. All existing listings were automatically updated each 60-90 days at which time a copy of the web listing was sent to Mr Rumble.
77.Mr Johnson said that he had been directed by Mr Rumble to send all advertisements to Mr Rumble including the accounts. He thought Mr Rumble was both the owner and principal agent of the respondent.
78.Mr Nguyen gave evidence. He said that Mr Rumble was a family friend who was just helping them sell their house through the respondent. In cross examination he was vague and unresponsive possibly due to language difficulties.
79.Ms Lamaro gave evidence and was aggressive, evasive and generally unimpressive.
80.In relation to the open house incident, she spoke of a grey haired old lady who was fidgety and nervous that approached Mr Rumble for advice on the house on offer. Ms Lamaro said that this lady asked questions about having a dog at the house. Ms Lamaro said that the old lady was ‘sort of odd’, asked ‘really bizarre questions’ and when Ms Lamaro attempted to answer her questions, her answers ‘were dismissed’.
81.Ms Lamaro said that Mr Rumble never communicates with potential buyers or lessees, he just makes appointments for one of the agents to do so. When the allegations of Ms Fleck were put to Ms Lamaro concerning the content of their telephone conversation, Ms Lamaro said that this was a ‘total fabrication’.
82.Ms Lamaro was asked about the listings on Open2view showing Mr Rumble as a ‘consultant’. She could not explain this save to say that it was his job to arrange all listings.
83.Ms Lamaro said that Mr Rumble would never prepare Exclusive Agency Agreements or sales instructions for vendor’s solicitors. She was unable to explain why his name appeared on such documents in the exhibits.
84.Mr Rumble gave evidence and was cross examined. He asserted that the ASIC record which showed him as the sole shareholder in the respondent was wrong and that this was his accountant’s fault. He said that he had sold his shares to Ms Lamaro for $270,000 but had no record of receiving the money and could not say where the money had gone. He was adamant that Mr Johnson from Open2view had made his own assumptions about Mr Rumble’s status in the respondent and that he had never authorised Mr Johnson to show him as the agent or consultant.
85.In relation to his business card given to Ms Fleck showing him as a ‘consultant’, he said that this must have been an old card he had in his pocket.
86.In relation to the letterheads sent to clients showing him a ‘director’, he said that these must have been old letterheads on the computer.
87.In relation to the contract for sale prepared by vendor’s solicitors showing
Mr Rumble as the agent, he said that the solicitors made a wrong assumption about this based only on the fact that he had sent the solicitors the sales instructions.88.The matter was listed for finalisation on 18 April. The following orders were made:
1.Matters 6 of 2010 and 1 of 2011 are being heard together. Evidence in one is evidence in both.
2.The evidence of both parties is completed save for that which is set out below.
3.The Applicant is to file and serve a supplementary statement from Mr Johnstone by 15 March 2011.
4.The Respondent is to file and serve the following by 22 March 2011:
a.A copy of the All Homes listing for 2/59 Hodgeson Street, Pearce, as originally featured on All Homes;
b.Evidence of the alteration of the share register with ASIC, evidence of the sale of the shares to Ms Lomaro and payment for the shares;
c.The statements of witnesses relied upon in rebuttal of the evidence of Ms Hall.
5.On the next occasion, the evidence of Ms Hall is to be taken and the evidence of the Respondent’s witnesses in rebuttal is to be taken.
89.On 15 March 2011 the Commissioner filed and serve a statutory declaration from Lachlan Johnston dated 10 March 2011 ((exhibit A 13) which read:
(1)I am the photographer franchisee for Open2view.com.au for the Canberra, Goulburn and Yass region.
(2)Wayne Rumble has an account with Open2view.com.au and has accessed this account on numerous occasions to download photographed images, and has updated the status of properties on the website listed under his account either via email alerts or the website.
(3)Wayne Rumble has his own personalised account with the username wayne.rumble and password waynerumble.
(4)Email notifications for properties that Wayne Rumble is the sales consultant for are sent to [email protected]
90.On 15 April 2011 the Commissioner advised that it no longer relied upon the statement of Erika Hall.
91.At the hearing on 18 April 2011 the respondent file a statement from Ms Karen Lamaro dated 15 April which read:
1.This statement is true to the best f my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have willfully stated in it anything, which I know to be false or do not believe to be true.
2.I confirm that I purchased a 60% share in Rumbles Realty P/L. August 2007. ASIC company details have been amended to reflect this change. Currently, I hold 2 of the 3 shares and Mr. Rumble holds the remaining share. (Marked “A”)
3.It has been revealed that Mr. Rumble has inadvertently signed some documents on behalf of agents. These are administrative errors and this practice, though rare, has ceased. In his capacity as Company Secretary and Office Manager, Mr. Rumble signs many documents on a daily basis.
4.It has been alleged that due to these document signings and in the course of his duties as Office Manager, that Mr. Rumble is carrying on as a real state agent. I confirm that he is not employed as an agent and does not receive reward or commissions.
5.I have printed the website weekly reports that Rumbles Realty received for the calendar year 2010. (Marked “B’). I can confirm that
Mr. Rumble is not listed or appears at all as an agent in any of these reports. Rumbles Realty has direct control over the content and the reports reflect this. I note that, although the 3rd party website sources its information from the allhomes website, it has not accurately transferred this information as it has listed Mr. Rumble as an agent. This is contrary to the source document and an error on their part.6.Ms Erika Hall was employed as a Property Manager whist she was studying for her Cert IV. It was my belief that if an individual was studying the required CPD course, that they were free to work in the industry. I was made aware of this during my licensing course with Wisdom learning.
92.The respondent tendered a print out of Allhomes for 2/59 Hodgson Crescent Pearce which showed the managing agent to be Ms Lamaro ((exhibit R8).
Hearing on 18 April 2011
93.At the resumed hearing, Mr Rumble had not filed or served statements from Ms Connell, Ms Salvatore or the book keeper. He had no evidence from the accountant concerning the shareholding in the respondent and no evidence of the purchase price for the shares allegedly paid by Ms Lamaro.
94.No new evidence was taken and in this sense the purpose of the adjournment sought by the respondent was rendered nugatory.
95.Submissions were taken from the parties which did not add anything new to the submissions to date.
The legislation
96.The relevant legislation is set out at paragraph 26 above under the heading ‘legislative scheme’ in the submissions of Ms Soper.
97.In the present case, the issue comes down to whether Ms Hall and Mr Rumble carried on business as a sales person or real estate agent within the meaning of section 8 of the Act. This, in turn, comes down to whether Ms Hall and Mr Rumble provided ‘real estate agent services’ within the meaning of section 8.
8(2) Each of the following is a real estate agent service:
(a) buying, selling, exchanging, leasing, assigning or otherwise disposing of land;
(b) negotiating with, or inducing or attempting to induce, a person to—
(i) buy, sell, exchange, lease, assign or otherwise dispose of land; or
(ii) enter into, or make or accept an offer to enter into, a contract to buy, sell, exchange, lease, assign or otherwise dispose of land;
(c) collecting payments under a lease;
(d) collecting payments under a mortgage of land or payments under a terms contract for land;
(e) acting as manager of an owners corporation for a units plan;
(f) any other service prescribed by regulation for this section.
The charges relating to Ms Hall
98.The respondent admits that Ms Hall was employed as a salesperson and carried out the functions as such notwithstanding that she held no salesperson registration or agent’s licence.
99.The respondent said that they understood that Ms Hall had an exemption from the need to be registered or licensed as a salesperson or agent respectively, if she was studying towards her agent qualifications.
100.There is no law in the ACT to this effect and the Commissioner denied that any such exemption had been granted to Ms Hall.
101.The Tribunal finds that Ms Hall was providing real estate agency services in contravention of the Act.
102.The fact that the respondent may have been labouring under a misapprehension as to the state of the relevant law is irrelevant to whether an offence has been committed. Section 75 is an offence of strict liability.
The charges relating to Mr Rumble
103.The case in respect of Mr Rumble is clearly and thoroughly set out in the statement of Ms Fleck of 15 September 2010 at paragraph 17 above under the heading ‘Wayne Rumble’. Each of the relevant documents is cross referenced in that statement and is exhibited in evidence.
104.The Tribunal is satisfied that the events put by Ms Fleck occurred in the manner stated by Ms Fleck.
105.The Tribunal accepts that the events set out in the statement of Ms Cogger of 10 January 2011 at paragraph 65 above occurred in manner described.
106.The Tribunal accepts the evidence of Mr Deboni set out in his statement of
22 November 2010 and the evidence of Mr Johnstone.107.The Tribunal notes from its own records that Mr Rumble attends the tenancy jurisdiction of the Tribunal from time to time to represent client landlords.
108.The Tribunal did not accept the evidence of Ms Larmaro. She was evasive, aggressive and prone to emotive overstatement. Her description of the open house incident was particularly insightful. She was obviously aware of the allegations of a women approaching Mr Rumble for advice and asking questions about dogs being allowed etc. She described the women as old, grey, fidgety and nervous. Ms Cogger appeared before the Tribunal and was a confident young brown hair woman.
109.Neither Mr Rumble nor Ms Lamaro alleged that there had been a second woman asking the same questions at the open house and so the Tribunal must assume that Ms Lamaro’s evidence relates to the event described by Ms Cogger.
110.Ms Lamaro’s evidence on this point presented the appearance of concocted evidence in which there had been a failure to co-ordinate a sufficient level of detail.
111.Ms Lamaro asserted that she owned the only two shares in the respondent. The Commissioner and the Tribunal raised the inconsistency of this assertion with the ASIC record which showed Mr Rumble as the sole shareholder and asked for evidence on the point. None was forthcoming. The same point was taken up with Mr Rumble who blamed his accountant also failed to alter the ASIC record. He asserted that he had sold the shares to Mr Lamaro for $270,000 but when challenged on the point and provided with an adjournment to adduce evidence on the point, he failed to do so. Ms Lamaro did not even refer to any purchase of the shares.
112.The Tribunal simply does not believe Ms Lamaro or Mr Rumble on the point.
113.Mr Rumble and Ms Lamaro contended that Mr Rumble was only an office manager. Ms Lamaro asserted that he did not communicate with or advice clients, and he simply took messages for the agent or salespersons in charge of the case. That assertion is obviously not consistent with the evidence of Ms Fleck, Ms Cogger or Ms Debonii above. It is not consistent with Mr Rumble attending the Tribunal’s tenancy jurisdiction as an advocate for the respondent’s landlords.
114.Throughout 2009, Ms Lamaro was employed full time at Hays Personnel and so was not present in the respondent’s office on a day to day basis. She was not present to see what Mr Rumble did or did not do.
115.Mr Rumble wrote letters to clients in his own name as a director or sales consultant and handed out business cards in the same terms. He asserts that this was an error in that old letterheads were used or old cards. The Tribunal does not accept this.
116.Mr Johnstone’s evidence was clear and credible. All listings on Open2view were regularly sent to Mr Rumble including those showing him as the listing agent. Whether Mr Rumble actually looked at the advertisements or not is unknown but he certainly had every opportunity to do so.
117.Mr Rumble said that Ms Hall was carrying out the duties of a salesperson and that he was her supervisor. It is difficult to see how he can supervise Ms Hall unlawfully carrying out these functions without himself becoming involved in those duties.
118.The evidence set out above is ample to satisfy the Tribunal that Ms Hall and Mr Rumble each carried out real estate agent services within the meaning of section 8(2)(a)-(d).
119.The Tribunal is satisfied that Mr Rumble is in fact the sole shareholder of the respondent and in truth the principal of the respondent. He directs the activities of the respondent on a day to day basis. Ms Lamaro is at best, a part time participant who brings the requisite licence that Ms Rumble needs to continue the business.
120.Ms Lamaro as the sole director of the respondent and the licensed agent, is expected to be in day to day control of the respondent’s business. As such, it falls to her to ensure that the respondent’s work is undertaken lawfully. It was her responsibility to ensure that Ms Hall and Mr Rumble were each appropriately qualified for the duties they performed. She has failed to do so.
Decision
121.The Tribunal finds that the charges set out in paragraph 16 above are both made out.
122.The Tribunal finds that Mr Rumble was carrying out real estate agent services both before and after the interim order of the President on 18 October 2010 and as such the respondent has also breached the interim order.
123.There remains the issue of the penalty.
124.The matter is to be relisted for submissions on penalty.
………………………………..
Mr A. Anforth
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NO: OD 10/06 & 11/01
APPLICANT: COMMISSIONER FOR FAIR TRADING
RESPONDENT: RUMBLES REALTY PTY LTD
COUNSEL APPEARING: APPLICANT: ACT Government Solicitor
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER: Mr A. Anforth, Senior Member
DATE OF HEARING: 18 April 2011 PLACE: CANBERRA
DATE OF DECISION: 22 July 2011 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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