Commissioner for Fair Trading v Murlton Pty Ltd T/A Act Strata Management Services (Occupational Discipline)

[2019] ACAT 113

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COMMISSIONER FOR FAIR TRADING v MURLTON PTY LTD T/A ACT STRATA MANAGEMENT SERVICES (Occupational Discipline) [2019] ACAT 113

OR 8/2019

Catchwords:  OCCUPATIONAL DISCIPLINE – agent – contravention of ACAT orders – no explanation for contravention – cancellation of licence and disqualification period imposed

Legislation cited:     ACT Civil and Administrative Tribunal Act 2008 ss 7, 65, 66

Agents Act 2003 s 41

Cases cited:  Commissioner for Fair Trading v Bowditch [2019] ACAT 112

Commissioner for Fair Trading v Bowditch [2019] (No. 2) ACAT 114

Commissioner for Fair Trading v Murlton Pty Ltd trading as ACT Strata Management [2018] ACAT 111

Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68

Tribunal:        Presidential Member MT Daniel

Date of Orders:  16 September 2019

Date of Reasons for Decision:        4 December 2019AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL         )          OR 08/2019

BETWEEN:

COMMISSIONER FOR FAIR TRADING

Applicant

AND:

MURLTON PTY LTD T/A ACT STRATA MANAGEMENT SERVICES

Respondent

TRIBUNAL:  Presidential Member MT Daniel

DATE:                   16 September 2019

ORDER

Being satisfied that the conduct set out in the Statement of Agreed Facts constitutes grounds for occupational discipline pursuant to section 41(1)(e) of the Agents Act 2003; it is ordered:

1. The respondent's licence is cancelled in accordance with section 66(2)(e) of the ACT Civil and Administrative Tribunal Act 2008.

2. The respondent is disqualified from applying for a real estate agents licence for a period of 12 months pursuant to section 66(2)(f) of the ACT Civil and Administrative Tribunal Act 2008.

3.           The mention listed on 23 September 2019 is vacated.

………Signed…………………..

Presidential Member MT Daniel

REASONS FOR DECISION

1.           In these proceedings the Commissioner for Fair Trading (Commissioner) sought orders for occupational discipline against the respondent, a licensed agent, for failing to comply with orders of the Tribunal previously made in relation to the respondent (the consent orders). Ultimately the matter resolved by way of further orders made by consent. These are the reasons for that outcome.

Background

2.           The application for disciplinary action for failure to comply with the consent orders was filed on 18 April 2019. On 17 June 2019 at a first directions hearing a timetable for preparation of the matter was set, with a hearing date of 20 September 2019. The application was amended on 21 June 2019, and on 5 July 2019 the respondent filed a response to the amended application denying that it had contravened the consent orders.

3.           On 31 July 2019 as a consequence of orders made in related disciplinary proceedings involving the licensed director of the respondent, the timetable for preparation was amended in chambers. However, the hearing date of 20 September 2019 was maintained for the hearing of the two related applications.

4.           On 13 September 2019 the parties filed proposed consent orders and a statement of agreed facts.

5. In short, the parties agreed that the respondent had contravened some of the consent orders and the respondent’s conduct in those respects constituted grounds for occupational discipline pursuant to section 41 of the Agents Act 2003 (Agents Act). The parties proposed that the Tribunal make orders by consent cancelling the respondent’s licence and disqualifying it from applying for a licence for a further 12 months.

6.           In Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 I set out the legal framework within which the Tribunal operates when considering whether to make orders by consent in an occupational discipline matter. Usually, in disciplinary proceedings the Tribunal will conduct a short hearing at which the parties appear and are able to make submissions, so as to allow the Tribunal to satisfy itself that the proposed orders are within power and appropriate. However, this is not a fixed rule. The approach taken by the Tribunal will depend upon a number of factors, including the seriousness of the allegations or proposed outcome; whether the parties are legally represented; and whether the Tribunal has any concerns or questions upon reading the agreed facts and proposed orders.

7. Section 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) provides:

7   Principles applying to Act

In exercising its functions under this Act, the tribunal must—

(a)       ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and

(b)       observe natural justice and procedural fairness.

8. The Tribunal is conscious that requiring parties or their representatives to attend even a short hearing can cause expense and delay. As a consequence, it considers all of the circumstances of the case and the requirements of section 7 of the ACAT Act when deciding what process to adopt when consent orders are sought.

9.           In this case, I reviewed the proposed consent orders in chambers and did not require the parties to attend a hearing. This was because the parties were legally represented, and there had already been a number of occasions where the parties and their legal representatives (including counsel) had attended before the Tribunal in this and the related proceedings. On those occasions the asserted facts and applicable legislation had been canvassed at length. I decided it was not appropriate to require the parties and their representatives to attend the Tribunal on a further occasion, and I considered and made the proposed orders in chambers on 16 September 2019.

The facts

10. On 14 August 2009, the respondent was granted a licence to carry on business as a real estate agent (Licence No, 18401358) and is therefore a licensed agent for the purposes of the Agents Act. That licence was due to expire on 30 June 2020.

11.         On 24 May 2016, the licensed director was granted a licence to carry on business as a real estate agent (Licence No. 18402078), due to expire on 30 June 2018, and was appointed the licensed director for the respondent. The licensed director’s licence was conditional and permitted him to manage units plans only. On 12 October 2018, that licence was renewed until 30 June 2021.

12.         In 2018 the Commissioner brought disciplinary proceedings against the respondent (OR 15/2018). After a mediation attended by the Commissioner, his legal representative, the licensed director and a legal representative for the respondent, on 17 October 2018, the Tribunal made the consent orders.

13.         Orders 2, 3, 5 and 6 of the consent orders stated as follows:

(2) The respondent is required pay to the Territory, within 60 days of the date of the orders, the amount of $8,000 pursuant to s 66(2)(h) of the ACAT Act, and

(3) Within six months of the date of these orders, pursuant to s 66(2)(c) of the ACAT Act, the licensed director of the respondent is required to complete additional training, including the following course units:

(a)   CPPDSM4007A -Identify legal and ethical requirements of property management to complete agency work;

(b)   CPPDSM4009A - Interpret legislation to complete agency work;

(c)    CPPDSM4015A - Minimise agency and consumer risk;,

(d)   BSBFIM501A - Manage budgets and financial plans; and

(e)    CPPDSM5009A - Coordinate risk management system in the property industry.

…

(5)    The respondent must provide the applicant with evidence of completion of the above courses within 28 days of completion.

(6) The Tribunal notes that the respondent undertakes to ensure that the Owners Corporation for UP1318 is advised of its obligation regarding a sinking fund pursuant to s 81 of the Unit Titles (Management) Act 2011 at the Annual General Meeting scheduled for 22 October 2018 and within 28 days of the AGM provide evidence to the applicant of the advice provided.

14.         As at 17 October 2018 and at the time of these proceedings, the licensed director was and remained the sole licensed director of the respondent.

15.         The respondent:

(a) did not make the required payment of $8000 when it was due;

(b) failed to provide to the Commissioner evidence of completion of the courses required by order 3; and

(c) failed to provide to the Commissioner by the due date evidence that it had complied with its undertaking.

16.         The parties agreed these failures amounted to a breach of Orders 2, 5 and 6 of the consent orders. The parties also agreed that the respondent and the licensed director were contravening order 3 of the consent orders by failing to complete the required courses.

The Tribunal’s power to make the proposed consent orders

17. Section 41 of the Agents Act sets out the grounds for occupational discipline in relation to agents. Contravention of a tribunal order is listed as a ground for occupational discipline.

18. The facts as agreed clearly constitute grounds for occupational discipline, and the parties agreed this was so. Therefore it was open to the Tribunal under section 65(2) of the ACAT Act to make orders for occupational discipline.

19. Section 66 of the ACAT Act sets out the orders that may be made by the Tribunal; I note the orders proposed are included in those available under section 66.

Are the proposed consent orders appropriate?

20. The factors the Tribunal should consider when making orders for occupational discipline are set out in section 65(3) of the ACAT Act.

21.         I noted that the application stemmed from the failure of the respondent to comply with the consent orders made in relation to a prior occupational discipline matter. The respondent has been before the Tribunal before, but, it must be noted, in relation to different conduct.

22.         A breach of orders made by the Tribunal is always a serious matter. However, it seems more egregious when those orders were made by consent, after a mediation in which all parties were required to participate genuinely and in good faith. As such, one would have hoped for some explanation of the reasons for the lack of compliance. No explanation was provided.

23.         In the absence of any information which might support the making of different orders, I considered that it was appropriate to cancel the respondent’s licence. The disqualification from applying for a new licence for a period of 12 months ensures that that cancellation has effect for at least that period.

………………………………..

Presidential Member MT Daniel