MORTIMER and COMMISSIONER FOR CONSUMER PROTECTION - [2013] WASAT 126

MORTIMER and COMMISSIONER FOR CONSUMER PROTECTION [2013] WASAT 126

Last Update: 09/10/2013

MORTIMER and COMMISSIONER FOR CONSUMER PROTECTION [2013] WASAT 126
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 126
Act:	REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
Case No:	VR:26/2013	Heard:	12 JUNE 2013
Coram:	JUSTICE J A CHANEY (PRESIDENT), MS R BROWN (SESSIONAL MEMBER), MR G CHURCH (SESSIONAL MEMBER)	Delivered:	14/08/2013
No of Pages:	19	Judgment Part:	1 of 1
Result:	Commissioner's decision set aside and claim allowed.
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	SHANE JUSTIN MORTIMER COMMISSIONER FOR CONSUMER PROTECTION
Catchwords:	Real estate agents Claim against Fidelity Account Fraudulent conduct Whether conduct in course of business as a real estate agent Whether claim should be reduced by amount of unsatisfied payment Whether unsatisfied judgment treated as amount receivable
Legislation:	Real Estate and Business Agents Act 1978 (WA), s 4, s 4(2), s 4(3), s 41, s 41(2), s 107, s 112, s 116(1), s 117(1), s 117(2)
Case References:	Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 Hellier v Hinton (unreported, WASC, Library No 980712, 14 December 1998)
Orders:	On the application heard before President, Justice Chaney and Sessional Member Brown and Sessional Member Church, on 14 August 2013 it is ordered that: 1. The decision of the Commissioner for Consumer Protection made on 17 January 2013 refusing the applicant's claims against the Real Estate and Business Agents Fidelity Account is set aside. 2. The applicant's claim against the Real Estate and Business Fidelity Account is allowed in the sum of $150,000.
Summary:	The applicant sought a review of a decision to disallow his claim against the Real Estate and Business Agents Fidelity Account. It was not in issue that the applicant had suffered a loss by reason of fraudulent conduct of a licensed real estate agent who was the person in bona fide control of a company carrying on a business as a licensed real estate agent. Nor was it in issue that the funds lost were paid to the licensed company and disbursed by the company as part of the fraudulent conduct. The issue before the Tribunal was whether the money was received by the company in the course of its business as a real estate agent, that being a necessary element of the definition of defalcation, and therefore of an entitlement to reimbursement from the Fidelity Account. The Tribunal examined the transaction and determined that the answer to the question posed by the parties lay in s 4(3) of the Real Estate and Business Agents Act 1978 (WA), and in any event the transaction was in the course of the company's business as a real estate agent. Accordingly, the decision to disallow the claim was set aside and the claim allowed.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : MORTIMER and COMMISSIONER FOR CONSUMER PROTECTION [2013]…

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: [2013] WASAT 126
Decision Date: 14 AUGUST 2013

CaseChat Overview and Summary

The matter before the court involved Mortimer, a real estate agent, and the Commissioner for Consumer Protection. The dispute centred on a claim for compensation against Mortimer, alleging fraudulent conduct in relation to his business as a real estate agent. The Commissioner sought to reduce the claim by the amount of an unsatisfied payment in Mortimer's Fidelity Account. The Commissioner argued that this payment should be treated as an amount receivable, thereby reducing Mortimer's entitlement to compensation. The court was tasked with determining whether the conduct in question was in the course of Mortimer's business as a real estate agent and, if so, whether the claim should be reduced by the unsatisfied payment.

The court had to decide whether Mortimer's conduct constituted a breach of the Australian Consumer Law. Additionally, it needed to ascertain whether the conduct in question was performed in the course of his business as a real estate agent. Furthermore, the court needed to determine whether the Commissioner's decision to reduce the claim by the unsatisfied payment was justified. The court considered whether the unsatisfied judgment should be treated as an amount receivable, which would affect Mortimer's compensation.

In its decision, the court held that Mortimer's conduct did not fall within the scope of his business as a real estate agent and thus was not in the course of his business. Consequently, the court found that the Commissioner's decision to reduce the claim by the unsatisfied payment was incorrect. The court set aside the Commissioner's decision and allowed Mortimer's claim in full. The court did not consider it appropriate to reduce the claim by the unsatisfied payment, as the judgment did not relate to the alleged fraudulent conduct for which compensation was sought.

Orders

Orders of the court

Commissioner's decision set aside and claim allowed.

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

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