Commr for Consumer Affairs v Twelftree

[2004] SADC 175

District Court of South Australia

(District Court Administrative and Disciplinary Division)

COMMR FOR CONSUMER AFFAIRS v TWELFTREE

Reasons for Decision of His Honour Judge Bright (ex tempore)

2 December 2004

ADMINISTRATIVE LAW

Conveyancers Act 1994 - disciplinary proceedings - cause for disciplinary action admitted - decision.

COMMR FOR CONSUMER AFFAIRS v TWELFTREE
[2004] SADC 175

1. These are serious matters. Mr Twelftree pleaded guilty on 22 August 2003 to four counts of false pretences. He was sentenced to a head sentence of 15 months’ imprisonment with a nine month non-parole period. That was suspended on entering into a bond to be of good behaviour for three years and to perform 200 hours of community service. He was also fined $3000.

2. Mr Twelftree admits that cause exists for disciplinary action pursuant to the Conveyancers Act 1994. I must decide what form that action should take. Possible actions range from a reprimand to permanent disqualification. The Commissioner seeks permanent disqualification. I note that elements of punishment for your conduct have been addressed in the Magistrates Court. My role is, essentially, to see that the public is adequately protected against dishonesty by you and by others minded to do what you did.

3. What you did was to represent to lending institutions that land had been purchased for a greater price than it had in fact obtained. You did this in concert with two other people. You may not personally have communicated the false information, but you were aware of what the others were doing and joined with them in processing those transactions. Institutions were thereby induced to lend more against the security of those properties than was likely if they had known the true price.

4. You say that, in each case, properties were purchased at less than their true value because of the real estate astuteness of your partners. That may be so. It is the fact that, in each case, the money advanced was repaid in full, the institutions suffered no loss. It is also the fact that at settlement, in each case, transfers and contracts showing the true prices were produced for stamping and registration. In that sense the lending institutions were notified of the true situation. However, I accept that the false representations were what induced the lenders to advance so much and that the personnel responsible for that had no subsequent advice from those responsible for attending its settlement.

5. I am sure that that weakness in the system was well-known to you and to others who did as you did. It was how the fraud worked. It was not your position to assess the lender’s risk and to assume that the bank would be repaid. The lender was entitled to make up its own mind on true information. I find that no independent valuations were submitted to the bank. I am not satisfied that adequate security for the loans was proffered. You also misrepresented the nature of the properties and the use to which they would be put. You were granted a loan on more favourable terms than would have applied if the true situation had been revealed.

6. There is some evidence that what you did was a well-known practice. It was apparently so widespread as to have attracted the name ‘jacking up’. There is no evidence to the contrary. Widespread it may have become, at least in certain circles, but it was always fraudulent, as you have now acknowledged. Your plight is well-known to others in the conveyancing profession, as attested by numerous references. This suggests to me that the illegality of the practice of jacking up must now be well-known. The penalties you have suffered should serve as a significant deterrent to others. That should assist to protect the public against it.

7. You, personally, are subject to a suspended sentence bond until August 2006. Were you to act illegally, you would go to gaol. I believe that that will offer very significant protection to the public against you doing that. I have perused a large number of references which make it plain that, apart from this episode, you have been of excellent character and a contributor to the community. What you did here was weak, foolish and a sad lapse of judgment. I believe you are extremely unlikely ever to offend again.

8. For these reasons I do not think it necessary to disqualify you from practising as a conveyancer ever again. I note that if I disqualify you for any period there could be argument about whether the Commissioner has a separate requirement or discretion to refuse to grant you a new licence.

9. In my view you must lose the right to practice for a period of time. I therefore propose to suspend your right to practice for a period. I order that your licence be suspended for three years to commence today.