Prestige and Rich Pty Ltd v McGregor

DISTRICT COURT OF QUEENSLAND

CITATION:

Prestige & Rich Pty Ltd v McGregor [2019] QDC 151

PARTIES:

PRESTIGE & RICH PTY LTD

(Appellant)

v

JANEY ELLEN MCGREGOR OF THE OFFICE OF FAIR TRADING

(Respondent)

FILE NO/S:

75 of 2019

DIVISION:

Criminal

PROCEEDING:

Appeal pursuant to section 222 of the Justices Act 1886 (Qld)

ORIGINATING COURT:

Magistrates Court at Holland Park

DELIVERED ON:

20 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

31 May and 16 August 2019

JUDGE:

Rackemann DCJ

ORDER:

1. Appeal dismissed

2. The appellant pay the respondent’s costs in the amount of $3287.00 to be paid within 28 days to the Registrar to be paid to the respondent

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – appeal against conviction – appeal against penalty – appeal against costs order – where appellant was convicted of offence under s 28(2)(a) Agents Financial Administration Act 2014 – interpretation of Division 5 Agents Financial Administration Act 2014 – where agent gave notice under s 26(2) Agents Financial Administration Act 2014 – where agent subsequently had written notice under s 27(2)(a) Agents Financial Administration Act 2014 – whether agent required to immediately pay amount pursuant to s 28(2)(a) or authorised to retain the funds and subsequently pay out pursuant to s 26(3) – whether the appellant was denied procedural fairness – whether the fine was manifestly excessive – whether the Magistrate erred in the quantum of the costs order –

LEGISLATION:

Agents Financial Administration Act 2014 (Qld) ss 21, 22, 25, 26, 27, 28

Justices Act 1886 (Qld) ss 157, 158B, 222, 223, 226, 232A

Justices Regulation 2014 (Qld) s 19, sch 2

COUNSEL:

Richard Hong, general manager of the appellant, with leave

Dominic Robinson for the respondent

SOLICITORS:

Office of Fair Trading for the respondent

1. On 18 December 2018 the Appellant was convicted of an offence under s 28(2)(a) of the Agents Financial Administration Act 2014 (“the Act”). It was fined $5,000.00 and ordered to pay costs of $2,223.75. It appeals against conviction, penalty and the quantum of the costs order.

1. The appeal is pursuant to s 222 of the Justices Act 1886. By reason of s 223, the appeal is by way of rehearing on the evidence given in the proceeding at first instance unless leave is given to adduce new evidence. The central issue in the appeal against conviction however, concerns the operation of the provisions of Division 5 of the Act.

1. The Appellant is a licenced real estate agent which was trading under the name Stephanie To Realty. In February 2016, it was engaged by Hetalben Patel and Milan Patel (collectively referred to as “the vendor”) to sell a property in Sunnybank (“the property”).[1] Mr Hong (“Hong”) is the general manager of the Appellant.

   [1] Exhibit 8.

1. A contract dated 11 March 2016 (“the contract”) was executed for the sale of the property to Jian Jien Li (“the purchaser”).[2] The contract was executed, apparently on the purchaser’s behalf, by his son, Qiang Li. The contract was…