Peebles v Cross

[2006] QDC 269

DISTRICT COURT OF QUEENSLAND

CITATION:

Peebles v Cross [2006] QDC 269

PARTIES:

DAVID LINDSAY PEEBLES

Appellant

v

CROSS COUNTRY REALTY PTY LTD and
KELLIE LEE-ANN CROSS and
RONALD MALCOLM CROSS

Respondents

FILE NO/S:

Nos 328, 329 and 330 of 2005

DIVISION:

Crime

PROCEEDING:

Appeal

ORIGINATING COURT:

Southport

DELIVERED ON:

4 August, 2006

DELIVERED AT:

Brisbane

HEARING DATES:

14 July, 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

Appeals allowed, orders of the Magistrate’s Court set aside, and matters remitted to that Court to be tried according to law

CATCHWORDS:

COUNSEL:

Mr Rafter SC for the appellant

Mr Byrne QC for the defendants

SOLICITORS:

Crown Solicitor for appellant

Messrs Ryan & Bosscher for respondents

1. The respondents were each charged with 39 offences pursuant to the Property Agents and Motor Dealers Act 2000 (“the Act”). Cross Country Realty Pty Ltd (“CCR”) was charged with 38 offences pursuant to s 138(1)(c) of the Act in that, being a residential property agent for the sale of residential property, it failed to disclose to a prospective buyer, the amount of any benefit any person expected to receive in connection with the sale of the property. CCR was also charged with failing to ensure that the individual in charge of business at its registered office was a real estate agent, contrary to s 132(2) of the Act. The respondents Ronald Malcolm Cross and Kellie Lee-Ann Cross were each charged as executive officers with 38 breaches of s 591(2) by failing to ensure that CCR complied with s 138(1)(c) of the Act. They were each also charged with borrowing a licensee’s licence, contrary to s 581(2) of the Act.

1. The matter was listed as a 9 day trial commencing 31 May 2005, but at the request of the respondents’ solicitors the trial was adjourned to the following day to enable counsel to argue a preliminary point.  On 1 June 2005, counsel for the respondents argued that the complaints were out of time and should be dismissed.  On 2 June 2005, the Acting Magistrate dismissed the complaints, accepting the argument of respondents’ counsel that the complaints were out of time.  The Acting Magistrate also ordered that the appellant pay the respondents’ costs, which were assessed at $40,000.

1. Section 589 of the Act provides, relevantly, as follows:-

“(1)       Subject to subsection (2), a proceeding for an offence against this Act must be taken in a summary way under the Justices Act 1886 within the later of the following –

(a)1 year after the offence is committed;

(b)6 months after the commission of the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence.”

1. There were two sets of complaints filed against the respondents.  The first set of complaints was filed on 21 June 2004 and a second set of complaints in precisely the same form was filed on 24 August 2004, apparently because of a doubt concerning the validity of the earlier complaints owing to the absence of a date.  Nonetheless, although the Acting Magistrate…