Cross v Peebles - [2014] QDC 270

DISTRICT COURT OF QUEENSLAND

CITATION:	Cross v Peebles [2014] QDC 270
PARTIES:	RONALD MALCOLM CROSS (appellant) v DAVID LINDSAY PEEBLES (respondent)
FILE NO/S:	D380/13
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Southport Magistrates Court
DELIVERED ON:	4 December 2014
DELIVERED AT:	Brisbane
HEARING DATE:	24 November 2014
JUDGE:	Samios DCJ
ORDER:	1. Appeal allowed. 2. The convictions against the appellant are set aside and findings of not guilty are entered.
CATCHWORDS:	CRIMINAL LAW - APPEAL - EVIDENCE - REAL ESTATE AGENTS - Defence - Onus of proof upon defendant - Sufficiency of evidence to satisfy onus of proof. Legislation Justices Act 1886 (Qld) s 223(1) Property Agents and Motor Dealers Act 2000 (Qld) s 138(1)(c), s 591(1), s 591(2) and s 591(4) Cases Allesch v Maunz (2000) 203 CLR 172, 180 Braysich v R [2011] HCA 14 Cross & Ors v Peebles [2013] QCA 26 Fox v Percy (2003) 214 CLR 118, 126-127 Mbuzi v Torcetti [2008] QCA 231 Younan v Queensland Building Services Authority [2010] QDC 158
COUNSEL:	Mr M Byrne QC for the appellant Ms A Freeman for the respondent
SOLICITORS:	Peter Shields Lawyers for the appellant GR Cooper Crown Solicitor for the respondent

On 22 October 2013 the appellant was found guilty of 31 counts of breaching s 591(2) of the Property Agents and Motor Dealers Act 2000 pertaining to the period between 19 March 2002 and 12 June 2003 that at the Gold Coast in the Magistrates Court District of Southport as an executive officer of Cross Country Realty Pty Ltd (the corporation) he failed to ensure the corporation complied with s 138(1)(c) of the Act.

The grounds of appeal are that the learned Magistrate erred in finding the appellant failed to prove on the balance of probabilities that he took all reasonable steps to ensure the corporation complied with s 138(1)(c) of the Act.

There was no dispute that at the material times the appellant and his daughter Kellie Cross were the executive officers of the corporation.

Section 138(1)(c) of the Act provided:
“138 Disclosures to prospective buyer
(1)A residential property agent for the sale of residential property must disclose the following to any prospective buyer of the property –
[…]
(c)The amount, value or nature of any benefit any person has received, receives, or expects to receive in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property.”

The corporation had been prosecuted for failing to adequately disclose to prospective purchasers of residential properties, amounts that were expected to be received by Park Trent Investments Pty Ltd (and other associated entities) in connection with the sale of properties concerned.

Section 591(1) of the Act provided:
“591 Executive officers must ensure corporation complies with Act
(1)The executive officers of a corporation must ensure that the corporation complies with this Act.”

A trial of the complaints issued against the corporation, the appellant and his daughter was heard over a period of eight…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cross v Peebles

Details

AGLC: Cross v Peebles [2014] QDC 270
Case: [2014] QDC 270
Decision Date: 4 December 2014

CaseChat Overview and Summary

Cross v Peebles was a case heard by the Court of Appeal of Queensland. The appellant, a director of a real estate agency, was charged with multiple breaches of the Property Agents and Motor Dealers Act 2000 (Qld) in relation to the failure of the corporation to disclose payments made to a developer from the sales of residential properties. The appeal was brought against the decision of the Southport Magistrates Court, which found the appellant guilty of the charges. The legal issues in this case centred on the onus of proof and whether the prosecution had provided sufficient evidence to satisfy the onus of proof against the appellant.

The court examined the relevant provisions of the Property Agents and Motor Dealers Act 2000 (Qld), specifically sections 138(1)(c), 591(1), 591(2), and 591(4). Section 591(1) attributed the same criminal responsibility to the executive officers of the corporation, while section 591(4) provided a defence for an executive officer if they proved they took all reasonable steps to ensure compliance with the Act or were not in a position to influence the conduct of the corporation. The court also considered relevant case law, including Allesch v Maunz, Fox v Percy, and Younan v Queensland Building Services Authority.

The court found that the evidence presented by the prosecution was not sufficient to satisfy the onus of proof against the appellant. It was determined that there was no evidence that the appellant took any steps to ensure compliance with the Act, nor was there evidence that he was in a position to influence the conduct of the corporation in relation to the offence. Therefore, the court held that the appellant had made out the defence pursuant to section 591(4) of the Act. As a result, the appeal was allowed, and the convictions against the appellant were set aside, with findings of not guilty entered.

Orders

Orders of the court

1. Appeal allowed.

2. The convictions against the appellant are set aside and findings of not guilty are entered.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Section 591(1) of the Act provided:“591 Executive officers must ensure corporation complies with Act(1)The executive officers of a corporation must ensure that the corporation complies with this Act.” A trial of the complaints issued against the corporation, the appellant and his daughter was heard over a period of eight days in August 2010 and February 2011 in the Southport Magistrates Court. On 4 March 2011 the learned Magistrate dismissed the complaints on the basis that there was no case to answer. His Honour’s decision was partly overturned on appeal after being heard by the Court of Appeal of Queensland, the result being the matter was remitted back to be heard by the learned Magistrate according to law in respect of the second limb of prosecution case, namely, that the corporation failed to disclose what Park Trent was to receive from the various sales of residential properties (Cross & Ors v Peebles [2013] QCA 26). On 22 October 2013 the corporation pleaded guilty and was convicted of 31 breaches of s 138(1)(c) of the Act. The effect of s 591(1) of the Act was to attribute the same criminal responsibility to the executive officers of the corporation. Regarding the appellant and his daughter s 591(4) of the Act was relevant to be considered. That subsection provided:“(4) However, it is a defence for an executive officer to prove that – (a)If the officer was in a position to influence the conduct of the corporation in relation to the offence – the officer took all reasonable steps to ensure the corporation complied with the provision; or(b)The officer was not in a position to influence the conduct of the corporation in relation to the offence.” On 22 October 2013 the learned Magistrate found the appellant’s daughter had taken all reasonable steps to ensure the corporation complied with the Act. However he found as far as the appellant was concerned there was no evidence he took any steps whatsoever in relation to compliance with the Act and therefore he did not make out the defence pursuant to s 591(4). Schedule 2 to the Act defines an executive officer for a corporation to mean:“any person, by whatever name called and whether or not the person is a director of the corporation, who is concerned, or takes part, in the management of the corporation.” There is no dispute that both the appellant and his daughter were executive officers of the corporation as that term is defined in schedule 2 to the Act. A formal admission was made during the proceedings (T6-53 and 54). Neither the appellant nor his daughter gave evidence in the proceedings before the learned Magistrate. However the learned Magistrate examined the evidence that had been given by other witnesses. Warren Evans gave evidence. He was employed by the corporation at the relevant time. He was familiar with the way the corporation worked and the systems of the corporation. He agreed that there was a culture within the corporation described as “part of the organisation ethos” for important matters such as compliance, legal advice would be sought. He agreed that it was inevitably the case that where there were issues such as compliance with disclosure, someone would not just make up a form; lawyers would be consulted. He agreed again in relation to the culture there would be strict compliance by the corporation through him with the disclosure obligations. He referred to the forms that would be signed. He agreed everyone at the corporation, particularly the management, were concerned with this to be done properly. In addition he agreed that Ms Cross was in some position of management at the corporation. Also that one of her particular tasks in management was to ensure compliance with the obligations in relation to form 27B. Further that she gave specific instructions to the staff to use the Annexure A attached to the 27B at the time. Further that even if a developer had their own annexure to the form that there were a number that did have that. Further that Ms Cross gave a direction that the Annexure A that she gave to the staff was also to be included. He agreed that was consistent with the advice she had received. He agreed that was consistent with the legal advice because he told her that.