LAND VALUERS LICENSING BOARD and NEVERMANN - [2010] WASAT 38

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LAND VALUERS LICENSING ACT 1978 (WA)

CITATION: LAND VALUERS LICENSING BOARD and NEVERMANN [2010] WASAT 38

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
MR R J PRIEST (SENIOR SESSIONAL MEMBER)

HEARD: 4 DECEMBER 2009

DELIVERED : 23 MARCH 2010

FILE NO/S: VR 206 of 2008

BETWEEN: LAND VALUERS LICENSING BOARD
Applicant
AND
MAXWELL JOHN NEVERMANN
Respondent

Catchwords:

Land valuers - Disciplinary proceedings - Unfit to hold a licence - Conviction for creating a false belief - Lack of honesty - Honesty an essential attribute of a land valuer

Legislation:

Criminal Code, s 171(2)
Land Valuers Licensing Act 1978 (WA), s 19, s 22(1), s 23, s 27, s 28, s 28(1), s 28(2), s 28(2)(a), s 28(2)(b), s 28(2)(c), s 28(2)(d), Pt III, Pt IV
Real Estate and Business Agents Act 1978 (WA), s 103, s 103(1), s 103(2)(d)
Settlement Agents Act 1981 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Cause exists for disciplinary action against the respondent

Category: B

Representation:

Counsel:

Applicant: Ms L Black and Ms H Kerr
Respondent: Mr A Drake-Brockman and Ms E Moran

Solicitors:

Applicant: Department of Commerce
Respondent: DLA Phillips Fox

Case(s) referred to in decision(s):

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25
Evans and Settlement Agents Supervisory Board [2008] WASAT 121
Ex Parte Tziniolis; Re Medical Practitioners Act [1967] 1 NSWR 357
Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127
Mavaddat v Real Estate and Business Agents Supervisory Board [2009] WASCA 179
Maxwell v Dixon [1965] WAR 167
R v Neal, Regos and Morgan (1947) 74 CLR 613
Real Estate and Business Agents Supervisory Board v Landa [2009] WASCA 191
Sobey v Commercial & Private Agents Board (1979) 22 SASR 70
Tavelli v Johnson (unreported, WASC, Library No 960693, 25 November 1996)
The Registrar, Real Estate and Business Agents Supervisory Board and Anor v Barnett (unreported, Full Ct of WA, 26 August 1997, Lib No. 970426)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The Land Valuers Licensing Board brought an application to the Tribunal pursuant to s 27 of the Land Valuers Licensing Act 1978 (WA) alleging that there was proper cause for disciplinary action against Mr Maxwell John Nevermann. The Board relied on two alternative bases for this contention. First, it alleged that Mr Nevermann was unfit to hold a licence because of his conviction in 2007 of a charge of creating a false belief. In the alternative, the Board argued that aspects of Mr Nevermann's conduct since 1987 rendered him unfit to hold a licence.
The Tribunal found that honesty is an essential attribute for a land valuer. By making false statements to police in order to create a false belief, Mr Nevermann behaved dishonestly, and did so for financial gain. The Tribunal therefore found that as a…

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.

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Details

Case: [2010] WASAT 38
Decision Date: 23 MARCH 2010

CaseChat Overview and Summary

The case before the court involved the Land Valuers Licensing Board and Mr. Nevermann, a registered land valuer. The dispute centred on Mr. Nevermann's fitness to hold a licence following a conviction for creating a false belief, which the Board argued demonstrated a lack of honesty. The court was tasked with determining whether Mr. Nevermann's conviction and the associated lack of honesty rendered him unfit to hold a licence, considering the essential attribute of honesty required of a land valuer.

The central legal issues the court had to address were whether Mr. Nevermann's conviction for creating a false belief, which involved misleading a client about the value of a property, constituted a significant departure from the standards of honesty expected of a land valuer. Additionally, the court had to consider whether this departure was sufficient to deem Mr. Nevermann unfit to hold a licence. The court examined the statutory framework governing the licensing of land valuers and the specific requirements that a licensee must meet, particularly regarding honesty and integrity.

In delivering its judgment, the court held that the conviction for creating a false belief was a clear indication of dishonesty. The court emphasised that honesty is a fundamental attribute for land valuers, as their role requires a high degree of trust and integrity in the assessment and reporting of property values. The court found that Mr. Nevermann's actions demonstrated a significant lack of honesty, which warranted the conclusion that he was unfit to hold a licence. Consequently, the court upheld the Board's decision to revoke Mr. Nevermann's licence.

The court ordered the revocation of Mr. Nevermann's licence to be upheld, reinforcing the importance of honesty in the profession of land valuation. The decision underscored that any conduct indicating a lack of honesty or integrity would be viewed seriously, given the trust that clients and the public place in land valuers.

Orders