REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MARSHALL
[2007] WASAT 165
•25 JUNE 2007
REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MARSHALL [2007] WASAT 165
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2007] WASAT 165 | |
| REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) | |||
| Case No: | VR:161/2006 | 4 APRIL 2007 | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) MR P DRUITT (SESSIONAL MEMBER) MS B HOLLAND (SESSIONAL MEMBER) | 25/06/07 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application successful Registration suspended | ||
| B | |||
| PDF Version |
| Parties: | REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD SAMANTHA JANE LOUISE MARSHALL |
Catchwords: | Real Estate Agents Act 1981 Allegations of failing to act fairly and honestly Appropriate disciplinary consequences Period of suspension |
Legislation: | Code of Conduct for Agents and Sales Representatives, article 5(1) Real Estate and Business Agents Act 1978 (WA), s 101, s 102, s 103(2), s 103(4)(c)(iv) Real Estate and Business Agents (General) Regulations 1979 (WA), s 13 |
Case References: | Briginshaw v Briginshaw (1938) 60 CLR 336 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 |
Orders | 1. The registration of Samantha Jane Louise Marshall as a real estate and business sales representative is suspended with effect from 31 August 2007 for a period of 12 months thereafter.,2. The applicant has leave to apply for costs subject to the applicant filing and serving an affidavit detailing the costs claimed, how they have been computed and annexing any vouchers relied upon, on or before 31 July 2007, and subject to compliance with this order:,(a) the matter will be set down for a hearing on costs on a date to be fixed by the Tribunal; and,(b) the respondent may file any written submissions in opposition to the cost application not less than two days prior to the date of hearing, and in any event, may appear at the hearing and make oral submissions, should she wish to do so. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MARSHALL [2007] WASAT 165 MEMBER : MR C RAYMOND (SENIOR MEMBER)
- MR P DRUITT (SESSIONAL MEMBER)
MS B HOLLAND (SESSIONAL MEMBER)
- Applicant
AND
SAMANTHA JANE LOUISE MARSHALL
Respondent
Catchwords:
Real Estate Agents Act 1981 - Allegations of failing to act fairly and honestly - Appropriate disciplinary consequences - Period of suspension
Legislation:
Code of Conduct for Agents and Sales Representatives, article 5(1)
(Page 2)
Real Estate and Business Agents Act 1978 (WA), s 101, s 102, s 103(2), s 103(4)(c)(iv)
Real Estate and Business Agents (General) Regulations 1979 (WA), s 13
Result:
Application successful
Registration suspended
Category: B
Representation:
Counsel:
Applicant : Mr J McGrath
Respondent : In person
Solicitors:
Applicant : Julia King
Respondent : N/A
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) 60 CLR 336
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
(Page 3)
Summary of Tribunal's decision
1) The applicant alleged that proper cause existed for disciplinary action against the respondent for failing to act fairly and honestly contrary to Article 5(1) of the Code of Conduct for Agents and Sales Representatives, ontwo separate grounds relating to the acceptance by the respondent of monies and the failure to immediately deposit the monies into the trust account of employer. The total monies involved $7110. The respondent paid $7010 of this amount, which related to the first ground, into the employers account progressively over a six month period and denied responsibility for the balance of $100, which related to the second ground. The Tribunal concluded it was probable that the respondent's payments also covered the additional $100.
2) The essential facts sufficient to sustain an adverse finding against the respondent in respect of the first ground relied upon were admitted. The Tribunal did not accept the respondent's explanation of events which, if accepted, would have mitigated to some extent the disciplinary consequences of the admitted facts.
3) The facts relating to the second ground relied upon were not admitted, but because of the unfavourable conclusions reached as to the respondent's credibility and having regard to all the evidence, the Tribunal concluded that the second ground was also made out.
4) The Tribunal found that proper cause existed for disciplinary action against the respondent and determined that the appropriate sanction was an order that the respondent's registration as a real estate and business sales representative be suspended for a period of 12 months.
The application and issues for determination
1 The applicant lodged an application with the Tribunal under to s 102 of the Real Estate and Business Agents Act 1978 (REBA Act) alleging that there is proper cause for disciplinary action, as mentioned in s 103(2)
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- of the REBA Act, against the respondent. The respondent is registered as a real estate and business sales representative and at all relevant times was employed as the property manager of Joburne Pty Ltd trading as Joyce Property Investments.
2 The grounds for alleging that there is proper cause for disciplinary action present of s 103(4)(c)(iv) of the REBA Act are that it is alleged:
1) that on or about 16 April 2004, the respondent failed to act fairly and honestly contrary to article 5(1) of the Code of Conduct for Agents and Sales Representatives ("Code" This is a reference to the Code established presented to s 101 of the REBA Act and reg 13 of the Real Estate and Business Agents (General) Regulations 1979 (WA));
2) that on or about 9 September 2004, the respondent failed to act fairly and honestly contrary to article 5(1) of the Code.
3 The factual circumstances relied upon by the applicant to support the above allegations are dealt with more fully below. In essence, the applicant alleges that the respondent received monies from a tenant, but contrary to the obligation set out in article 5(1) the respondent failed to deposit all the monies immediately and did not inform her principal of any circumstances prohibiting the respondent from depositing all the monies into the agency trust account. Most of the factual circumstances are admitted, but the facts which are in dispute, give rise to the following issues for determination by the Tribunal.
1) Was the $7010 received by the respondent from a tenant on 16 April 2004 taken by some other person from the respondent on that day?
2) Did the respondent withhold $100 of the $1000 received by her from the same tenant on 9 September 2004?
The evidence
4 The statements of fact below are not disputed. Where there is any contention, or if the events related by a witness are not accepted, we have set out the evidence given by the witness.
5 The respondent is registered as a real estate and business sales representative limited to property management transactions. At all
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- relevant times she was employed by Joburne Pty Ltd trading as Joyce Property Investments as a Property Manager.
6 On 14 April 2004, Mr Rufus Ifeanyi Ashiedu and Mrs Jennifer Ayebaye Ashiedu completed a written application and offer to lease the rental of a property at 12 Dumant Lane, Canning Vale, Western Australia. On 16 April 2004, Mr and Mrs Ashiedu signed a standard residential property lease for the property. The schedule to that document reflected that an amount of $1760 was payable covering a security bond of $1000, rental of $500 for two weeks paid to 29 April 2004, letting fee of $250 and an unspecified disbursement of $10. These details were set out in the document under the heading summary of monies payable.
7 The respondent attended at a property in close proximity to the premises to be leased in order to have Mr and Mrs Ashiedu sign the lease agreement. During that meeting, the respondent was given an amount of $7010 to ensure that the rental was paid in advance, as Mr Ashiedu would be out of the country. The details of this payment were written in hand writing on the summary of monies payable sheet and a number "13946" was inserted opposite a provision made for a receipt number. The respondent signed below this manuscript entry, which was provided to the tenants as a receipt for payment by the respondent. The respondent later stated, during a recorded interview with representatives of the applicant, Mr Chris Sultana and Mr Paul Ganci, on 18 July 2005, that the number "13946" represented a receipt number taken from the "field receipt book". Mr Graham Joyce, testified that he was the person in bona fide control of Joburne Pty Ltd trading as Joyce Property Investments and that there was no such thing as a "field receipt book".
8 The respondent pointed out during the hearing, that the number concerned, was the number provided to the tenants in a form attached to a letter dated 11 October 2004, as the number to be used when making internet rental payments. The respondent had not noticed this previously and had only noticed this when reading Mrs Ashiedu's witness statement.
9 In any event, after receiving the payment of $7010, the respondent testified that she went to have lunch at her home with the intention of then returning to the office after lunch. When the respondent arrived at the office, after lunch, she testified that the money and other personal articles including a mobile phone were missing from her brief case. She testified that, in a panic, she contacted her partner, as there were only two persons in the home, who could have been responsible for the money becoming missing. One of these persons was her partner's sister, who from that
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- point on, could not be contacted. An arrangement was made whereby the respondent's partner withdrew funds from his own banking account in order to enable the respondent to deposit an amount of $1760 that afternoon. That amount was the amount shown to be payable by Mr and Mrs Ashiedu on the summary of monies payable form.
10 The respondent also testified that she informed her mother of what had occurred, but as she was unable to borrow money from any other sources to enable the full $7010 to be deposited, she decided to repay the amount progressively, as best she could, prior to the rent falling due. The respondent concedes that she did not inform Mr Joyce, or any other representative of her employer, of what had occurred and acknowledges that in doing so she acted in breach of article 5(1) of the Code. However, the respondent stresses that she never planned to take the money, that she found herself in a difficult position, and made an error in judgment in deciding to proceed as she did. It is common cause that the respondent did pay monies into her principal's account to the credit of Mr and Mrs Ashiedu, although from time to time, she was unable to pay before the due date, with the result that officially Mr and Mrs Ashiedu were shown to be in arrears with rent payments for a period of time. It is also common cause that all monies payable under the lease have been paid, the tenants have not paid any more than they should have and the respondent's principal is not out of pocket in any way.
11 The applicant does not accept the respondent's explanation, and having regard to the evidence as a whole, argues that the Tribunal should reject the explanation. In that event, it is contended that a more serious view must be taken of the respondent's breach of article 5(1) of the Code.
12 By late August 2004, the rental account had fallen into arrears. This resulted in demand letters being automatically generated and in a telephone conversation between Mrs Ashiedu and Mrs Joyce, Mrs Ashiedu became extremely agitated and upset during these discussions because she could not understand how it was that the account was in arrears.
13 The respondent testified that Mrs Joyce reported to her that Mrs Ashiedu was very upset, that they arranged to buy Mrs Ashiedu some chocolates and Mrs Joyce instructed her to go out and collect the rental from Mrs Ashiedu.
14 The first demand letter was dated 23 August 2004. As at that date, the account was more than two weeks in arrears. The respondent
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- deposited an amount of $500 on 28 August 2004 which covered rental until 20 August 2004. On 6 September 2004, a further demand letter was generated at which time the rental was again more than two weeks in arrears. Prior to the respondent attending at the leased premises, she testified that a document had been prepared between her and Mrs Joyce in anticipation of receipt of rental from Mrs Ashiedu. This document (bundle of documents No 35 (No 35)) is dated 9 September 2004 and shows rental paid to 20 September 2004.
15 The respondent attended at the leased premises on 9 September 2004, and received a payment of $1000 from Mrs Ashiedu. Mrs Ashiedu testified that the payment was made so that the lease would be paid in advance to shortly after her husband's anticipated return to Australia. The respondent wrote on the document (No 35):
"*9/9/04 Pd $1000
Pd to 18/10/04".
- and signed immediately opposite this manuscript note.
16 The evidence is not clear as to whether or not the $1000 was counted out in the respondent's presence immediately prior to being handed to her. The respondent stated that she could not guarantee that the money had been counted out, but she presumed so, as that was the normal practice.
17 Later on that day, 9 September 2004, the respondent says that she gave all of the money which she had received from Mrs Ashiedu to the receptionist.
18 The tenants' accounts with the principal agency (bundle of documents No 20 (No 20)) shows that only an amount of $900 was deposited on 9 September 2004. The record of the interview with the respondent on 8 July 2005, shows that when the respondent was directed to the payment by Mrs Ashiedu of $1000 on 9 September 2004 and the notation "pd to 18/10/04" the respondent said that she did not recall "what this is". It is noted that the respondent attended the interview with a solicitor, Mr Robert Mancini, of Jackson MacDonald.
19 As stated, Mr Joyce gave evidence that an interim receipt was maintained by the receptionist, but that was used only if the computer system was not working. He stated that property managers do not have access to the interim receipt books and that in any event the numbers run sequentially and the number used on the "receipt" provided by the respondent to Mrs Ashiedu bore no relationship with the sequence
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- numbers used. He also stated that property managers must not accept cash from tenants in the field. The respondent disputed that cash was not accepted from tenants in the field. She said that if that was now the practice in the agency, it certainly was not during the period when she was employed there. She acknowledges that her existing employer discouraged property managers to receive cash from tenants in the field, but said that on occasions it is necessary to do so. She testified that Mrs Joyce had specifically instructed her to collect an arrears payment from Mrs Ashiedu during, or about, 9 September 2004.
20 Mr and Mrs Ashiedu vacated the property at the end of February 2005. By then the respondent was no longer employed by Joyce Property Investments and Mrs Ashiedu stated that she gave the new property manager a copy of the summary of monies payable receipt for the $7010 and the receipt of 9 September 2004 for $1000 after giving notice to vacate by letter on 25 January 2005. It appears that it was as a direct result of this that the respondent's conduct became known. In any event, Mr Joyce testified that on 15 February 2005 he met with the respondent, at which time he showed her the documents, by which he appears to be referring to the receipts of 16 April 2006 and 9 September 2006, and asked for an explanation. He stated that the respondent skirted around the issue and would not make any comment but asked pointless questions. Finally, he said the respondent advised that she had taken legal advice and was told not to admit or deny anything. He said she was very nervous and red in the face. An arrangement was made that the respondent would meet with Mr Joyce again after she had obtained legal advice. That further meeting occurred on 16 February 2005 at which Mr Joyce said that the respondent stated that she had taken the $7010, that she had gradually replaced the money over a period of time and she was very sorry for what she had done and was glad it was now in the open. He testified that the respondent stated that she had been threatened by someone and needed the money to solve the problem.
21 The respondent denied she had admitted taking the money because she had been threatened. During the cross-examination of Mr Joyce, the respondent asked him if it was possible that she had made a comment she had a personal problem and had handled it the wrong way. Mr Joyce replied:
"My recollection, and from referring to the statement – the statement would have been prepared immediately after the meeting, that would be my practice, so following the meeting on that date I would have prepared this statement or kept a
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- record and it is certainly my personal recollection, as well as what is written down here on my statement, that you did indicate that you were threatened by someone, didn't say who it was or what is was all about, and I didn't pursue the matter with you at the time. My clear recollection was that you referred to someone in your place of residence."
22 Included in the book of documents, is a statement or record which Mr Joyce stated he had prepared after each meeting with the respondent. That record is entirely consistent with Mr Joyce's evidence and shows that on the 15 February 2005 he showed the respondent the receipts relating to both of the payments for $7010 and the payment for $1000. Similarly, the note of what occurred on 16 February 2005 is consistent with the evidence which was given. The note also reflects that at the conclusion of that meeting, Mr Joyce required the respondent to provide him with a letter of admission and apology, and that Mr Joyce wanted her to tell her current employer. A later note records that on 18 February 2005, Mr Joyce received a call from the respondent's employer advising that the respondent had informed him of what had happened. No letter of admission and apology was received. We note that this document bears an initial, apparently that of Mr Joyce, and a date of 7 April 2006. That date coincides with the date on which Mr Joyce attended an interview before Mr Chris Sultana and Ms Shirley Brown, representing the applicant. The record of the interview reflects that Mr Joyce was asked to initial and date the documents which were shown to him. Mr Sultana made reference to Mr Joyce's statement and reminded Mr Joyce that it reflected that he had questioned the respondent about her having taken cash from tenants and that the respondent's initial reply was that she had sought legal advise and was told not to admit or deny anything. Mr Joyce was then asked:
"Mr Sultana: You then say that on 16 February 2005 she came to your office and made an admission to you, what did she say?"
23 By that, Mr Joyce responded:
"Mr Joyce: Well its in my statement, not going to swear it, because it's as I said but without reading it, my recollection was she came back and admitted that she had taken the money and that she was highly embarrassed about the situation and had not intended to steal the money but made some
- inference that, you know, she had some problems, didn't go into what that issue was and was very remorseful."
24 The respondent tendered a facsimile letter dated 3 April 2007, addressed to the applicant and to the Tribunal by the respondent's mother, Mrs Cath Marshall. The letter gives as its subject matter "RE: Reba Investigation" and states relevantly as follows:
"I'm writing to you today to confirm that am [sic] aware of the current investigation against Samantha and would like to inform you that I have been aware of the situation from the start.
…
At the time of the situation Samantha was extremely distraught and confused about it all. She did come to me and ask if she could borrow some funds from us to try to rectify the problem. She informed me that personal items and money had been taken from her premises and she did not know how to handle the situation. She was extremely upset and concerned.
... "
25 The respondent also referred to bank records and the packaging for a mobile phone which she had provided to the applicant's investigator, Mr Sultana, which she asserted corroborated her evidence of having had her telephone go missing at the same time as the money on 16 April 2004. The applicant disputed that there was anything within the bank records to show the purchase of a mobile phone shortly after that date or that the packaging did so. The respondent acknowledged under cross-examination that there was no entry on the bank statements which could be identified as relating to a purchase of a mobile telephone.
Considerations
26 The allegations made against the respondent are serious. While the respondent acknowledges that she did not act fairly and honestly in relation to her failure to report to her employer what she alleges occurred in relation to the receipt and the loss of the initial $7010 paid to her, she opposes strenuously any finding of breach of the Code being based upon any design on her part to convert the money to her own use from the outset.
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27 While the applicant has not put its case on the basis that it is essential to establish any design on the part of respondent from the outset to convert the money to her own use, Mr McGrath put it plainly that it was necessary to determine this issue, because of its impact on the appropriate disciplinary consequences. Further, Mr McGrath acknowledged that adverse findings on credibility were essential to the Tribunal upholding the second complaint made. This was because if it was found that the respondent's evidence was credible, it would follow that she would have to be given the benefit of the doubt in respect of the second complaint. In these circumstances, because of the gravity of the allegations made, the Tribunal must "feel an actual persuasion of the occurrence to the events or existence of facts which are an issue" Briginshaw v Briginshaw (1938) 60 CLR 336 [361]-[363].
28 There are many aspects of the respondent's evidence which we consider to be unsatisfactory, as discussed in the following paragraphs.
1) The respondent has an agile and intelligent mind, quick to adapt to any change in the accepted facts. For example, she initially stated to Mr Sultana and Mr Ganci in the interview on 11 August 2005 that the receipt number provided on the summary of monies payable form, on 16 April 2004 was taken from "the road receipt book". Faced with Mr Joyce's evidence that there was no such thing, but that there was interim receipt book kept by the receptionist for use if there was any computer malfunction, she adapted her terminology and under cross-examination, when asked about whether the number was taken from the road receipt book responded "interim receipt" (T:45). Having identified at the hearing that the number was likely to correspond with the customer code for internet payments (which was subsequently verified) the respondent attempted to explain that the number had been given "because when any future payments they could have put it into the bank account because Mrs Ashiedu didn't drive". When asked "so you were saying that entry could have been made just to let them know what the electronic number was?" the respondent answered "yes".
2) The evidence given by the respondent and referred to in 1) above is improbable, in every respect. There is no suggestion that the respondent had either a road receipt
- book or the interim receipt book with her when she received the above payment. If she had a receipt book with her, one would expect that it would have been used. The number given was in no respect a receipt number as it was represented to be. Further, it could not have been provided to enable Mrs Ashiedu to make internet payments because there was no suggestion that this was explained to Mrs Ashiedu.
- 3) The respondent's evidence directly contradicts that of Mr Joyce as to whether or not an admission was made during their second meeting on 16 February 2005. We prefer the evidence of Mr Joyce in relation to this issue, particularly as the notes which he made were prepared contemporaneously.
4) The respondent's evidence in relation to the circumstances of the further payment of $1000 made by Mrs Ashiedu on 9 September 2004 is particularly implausible. In the record of interview, when the respondent's attention was directed to the document dated 9 September 2004 (No 35) in which she had recorded receipt of the payment of $1000 and noted that this constituted a payment to 10 October 2004, the respondent said that she did not recall what that was about. That statement is, in our view, simply incredible. When it was reported to the respondent by Mrs Joyce that there had been a difficulty with Mrs Ashiedu because she was in arrears with her rent, the respondent's subterfuge was on the brink of being revealed. It would have been revealed but for the very fortuitous way in which the respondent was able to return to the office with additional monies from Mrs Ashiedu, so as to satisfy Mrs Joyce that the account was no longer in arrears. It is inconceivable that the respondent would not have recalled the circumstances which had almost lead to her conduct being discovered, and by which she had avoided the discovery.
5) In the meeting with Mr Joyce on 15 February 2005, both the payment of $7010 and $1000, the subject of these proceedings, was referred to by Mr Joyce. When the respondent attended the interview with Mr Sultana and Mr Ganci on 8 July 2005, she was accompanied by a
- solicitor. It is unlikely that no steps were taken to prepare her for the interview and that the questioning in relation to the payment of the $1000 on 9 September 2004 came as any surprise to her.
- 6) The respondent testified that Mrs Joyce had requested her to go and collect the $1000 which was paid on 9 September 2004. Clearly the tenants were in arrears and therefore some money had to be paid to prevent some steps being taken on behalf of the landlord to procure payment. But this version of events had never been accounted previously by the respondent and became of greater apparent significance because Mr Joyce had testified that it was against the office practice for property managers to collect cash on the road. We observe that Mrs Ashiedu's evidence was not consistent with this version. She made no reference to being required to make any payment – indeed if she had been, questions would have been asked because she understood she was not in arrears. Mrs Ashiedu's evidence was that she paid the additional amount to ensure that the rent was paid beyond the date of the return of her husband to Australia. We suspect that there was some discussion between the respondent and Mrs Ashiedu which may have influenced this payment being made, because obviously unless monies were forthcoming, either from Mrs Ashiedu or the respondent, the respondent's conduct would have been discovered. In any event, as far as Mrs Joyce was concerned, there was no need to collect money because as far as the agency records showed, rental payments had been made by the tenant during the period from April through to September 2004 either by way of internet payment or by a payment received at the office, or by cheque sent in by post. Mr Joyce testified as to the payments reflected in the account shown in the book of documents No 20 to this effect.
29 We have placed no weight on the letter which the respondent has said was provided by her mother. The applicant's counsel made it plain that if any reliance was to be placed on the letter, the respondent's mother would need to attend and be subject to cross-examination. The Tribunal warned the respondent that while it was not bound by the rules of evidence, it was most unlikely that the Tribunal could attach any weight to
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- the letter, unless the respondent's mother could be cross-examined. The respondent said she did not want to have her mother subjected to cross-examination because she was not well.
30 The Tribunal accepts the evidence reflected in the statements of Mrs Jennifer Ashiedu, Mr Graham Joyce and Mr Rufus Ashiedu. Mr Ashiedu's statement was tendered without formal proof and he was not required to attend for cross-examination. The cross-examination of Mrs Ashiedu and Mr Joyce did not in any way impugn their evidence. The only aspect of Mr Joyce's evidence which is perhaps open to some doubt is whether the office practice discouraging receipt of cash payments was applied as fully as he suggested. It is not necessary to make any particular finding on that issue. In accepting Mr Joyce's evidence as to what occurred at the meetings with the respondent on the 15 February 2005 and 16 February 2005, we are mindful that in the interview with Mr Sultana and Ms Brown on 7 April 2006, he actually contradicted the contemporaneous note and the evidence given to this Tribunal by stating that no reason was given for taking the money other than that "she had some problem but didn't go into it in any detail". However, immediately before that statement, Mr Sultana asked Mr Joyce what the respondent had said at the meeting on 16 February 2005 and Mr Joyce had responded by saying that it was in his statement "but without reading it, my recollection was she came back and admitted that she had taken the money". The statement referred to, in context, was clearly the contemporaneous notes to which we have referred. In those circumstances, we consider the contradiction to be explicable and there was no doubt that Mr Joyce has always, and at all times, said that the respondent admitted taking the money. Where the evidence of the respondent is otherwise contrary to, or inconsistent with, the evidence provided by the applicant, we accept the latter evidence.
31 We accordingly find that allegation (1) is made out in that the respondent received a payment of $7010 from Mrs Ashiedu, and failed to act fairly and honestly by not accounting fully for those monies immediately after receipt by her. We do not accept the respondent's evidence that the money was taken from her while she returned to her home for lunch, or at all.
32 In relation to allegation (2), it is not disputed that the respondent received $1000 from Mrs Ashiedu. We find that the respondent failed to act fairly and honestly in failing to account immediately to her principal for the full amount of such monies, in that only an amount of $900 was receipted to the credit of the account to Mr and Mrs Ashiedu. We find the
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- respondent withheld an amount of $100. We make this finding for the following reasons:
1) We do not consider that the respondent is a credible witness for the reasons given.
2) It can be fairly inferred that the respondent was under financial strain because the accounts show that she was unable to pay Mr and Mrs Ashiedu's rental payments as they fell due, resulting in the account falling into arrears.
3) Her propensity to act dishonestly is established by her conduct in the manner in which she dealt with the monies paid to her by Mr and Mrs Ashiedu on 16 April 2004, and her continued concealment of her conduct.
4) As the tenants did not pay the $100 shortfall and it is accepted that all monies due under the lease have been paid, it can be inferred that the respondent probably paid the $100 which would otherwise have resulted in a shortfall of the rent paid. Indeed, that is the only logical explanation. If the respondent paid the $100 that would suggest she deliberately held back that amount when making the deposit of $100 on 9 September 2004.
34 It follows that proper cause exists with disciplinary action against the respondent pursuant to s 103(4)(c)(iv) of the REBA Act in that:
1) On, or about, 16 April 2004, the respondent failed to act fairly and honestly contrary to article 5(1) of the Code; and
2) On, or before, September 2004, the respondent failed to act fairly and honestly contrary to article 5(1) of the Code.
35 The disciplinary consequences
36 The object of disciplinary proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance
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- of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97, dated 9 May 2007.
37 The Tribunal takes into account the confidence which the respondent's current employer expresses in her (see letter exhibit 6) and that the tenants, Mr and Mrs Asheidu, and Joburne Pty Ltd trading as Joyce Property Investments, have suffered no financial loss as a result of the respondent's conduct. Mrs Asheidu did suffer anxiety and was agitated by allegations that she was in arrears with her rent when she knew that she was not. The respondent had the use of a significant portion of the amounts of money handed to her by Mrs Asheidu for varying amounts of time, although ultimately, the respondent paid to her principal all the monies which she received.
38 By article 5 of the Code, the respondent was obliged to act fairly and honestly in her dealings with both the tenants and her principal. In both respects, she failed abysmally. The respondent maintained the deception for some six months during which she paid the rental which was due under the lease, although not always on time. Both Mr and Mrs Ashiedu, and the respondent's principal were entitled to expect that the respondent would act fairly and honestly, and her breaches in respect of the two separate allegations made against her are serious. It is important that employers and members of the community dealing with registered real estate and business sales representatives can rely on them to act honestly and fairly in all transactions. It is necessary therefore that the disciplinary consequences convey to those participating in the vocation that dishonest dealings in clients' monies and the carrying out of deception in the manner in which the respondent has engaged, will have serious consequences.
39 We accept the submissions made on behalf of the applicant that the appropriate disposition taking all factors into account is that the respondent's registration be suspended for a period of 12 months.
40 The respondent submitted that her employer is dependent upon her and that in the current employment market it may prove difficult to employ a replacement. The applicant's counsel acknowledged an immediate suspension would have an adverse affect on the respondent's employer and that in the circumstances he would not be opposed to a delay in the order coming into effect. In the circumstances, the Tribunal will order that the suspension take effect at the end of the second complete calendar month after the date of making of the order.
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41 The question of costs was not raised at the hearing. In the circumstances, the Tribunal will make an order affording the applicant a limited time within which to make any application for costs, if so advised. If an application for costs is not made within the limited time provided, the matter will be regarded as finalised.
Order
42 For the above reasons the Tribunal orders:
1. The registration of Samantha Jane Louise Marshall as a real estate and business sales representative is suspended with effect from 31 August 2007 for a period of 12 months thereafter.
2. The applicant has leave to apply for costs subject to the applicant filing and serving an affidavit detailing the costs claimed, how they have been computed and annexing any vouchers relied upon, on or before 31 July 2007, and subject to compliance with this order:
(a) the matter will be set down for a hearing on costs on a date to be fixed by the Tribunal; and
(b) the respondent may file any written submissions in opposition to the cost application not less than two days prior to the date of hearing, and in any event, may appear at the hearing and make oral submissions, should she wish to do so.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR MEMBER
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