SETTLEMENT AGENTS SUPERVISORY BOARD and PROPERTY SETTLEMENT SERVICES PTY LTD [2008] WASAT 57

Link to Appeal :

[2009] WASCA 143

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 57
Act:	SETTLEMENT AGENTS ACT 1981 (WA)
Case No:	VR:166/2006	Heard:	9 MAY 2007
Coram:	JUDGE J ECKERT (DEPUTY PRESIDENT) MR J MANSVELD (MEMBER) MS C WINSOR (SESSIONAL MEMBER)	Delivered:	9/03/08
No of pages:	40	Judgment Part:	1 of 1
Result:	Allegations 1 2 3 4 and 6 dismissed Allegation 5 admitted
Category:	B
PDF Version

Parties:	SETTLEMENT AGENTS SUPERVISORY BOARD PROPERTY SETTLEMENT SERVICES PTY LTD
Catchwords:	Conflict of interest Real and sensible possibility Code of Conduct r 5 and r 9 Confidential information Interests of client Relationship between settlement agent and legal firm Client of legal firm Ceasing to act Dispute
Legislation:	Settlement Agents Act 1981 (WA), s 3, s 34(1), s 46, s 82, s 83, s 84, s 87, s 88 Settlement Agents Code of Conduct 1982 (WA), r 5, r 6, r 6A, r 7, r 9, r 14 State Administrative Tribunal Act 2004 (WA), s 11(4), s 87, s 88
Case References:	Briginshaw v Briginshaw (1938) 60 CLR 336 Legal Practitioners Complaints Committee and Gandini (2006) WASAT 163 Legal Practitioners Complaints Committee and Lacerenza (2006) WASAT 177 Legal Practitioners Complaints Committee and Penkin (2006) WASAT 62 Settlement Agents Supervisory Board and Crozet Pty Ltd (2006) WASAT 65 Settlement Agents Supervisory Board and Paradis (2006) WASAT 292
Orders	1. Allegations 1, 2, 3, 4 and 6 are dismissed;,2. Allegation 5 is admitted and therefore proved;,3. On the basis of a breach of allegation 5 there is cause for disciplinary action; ,4. The Tribunal reprimands the settlement agent; and,5. Order 4 does not take effect until the later of 28 March 2008 or if the Board seeks to make submissions as to penalty and of which intention it advises the Tribunal and settlement agent by 28 March 2008, then a date otherwise ordered by the Tribunal.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : VOCATIONAL REGULATION ACT : SETTLEMENT AGENTS ACT 1981 (WA) CITATION : SETTLEMENT AGENTS SUPERVISORY BOARD and PROPERTY SETTLEMENT SERVICES PTY LTD [2008] WASAT 57 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)

MR J MANSVELD (MEMBER)

MS C WINSOR (SESSIONAL MEMBER)

HEARD : 9 MAY 2007 DELIVERED : 10 MARCH 2008 FILE NO/S : VR 166 of 2006 BETWEEN : SETTLEMENT AGENTS SUPERVISORY BOARD

Applicant

AND

PROPERTY SETTLEMENT SERVICES PTY LTD

Respondent

Catchwords:

Conflict of interest Real and sensible possibility Code of Conduct r 5 and r 9 Confidential information Interests of client Relationship between settlement agent and legal firm Client of legal firm Ceasing to act Dispute

Legislation:

Settlement Agents Act 1981 (WA), s 3, s 34(1), s 46, s 82, s 83, s 84, s 87, s 88

Settlement Agents Code of Conduct 1982 (WA), r 5, r 6, r 6A, r 7, r 9, r 14

(Page 2)

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: [2008] WASAT 57
Decision Date: 10 MARCH 2008

CaseChat Overview and Summary

The matter before the Tribunal involved the Settlement Agents Supervisory Board and Property Settlement Services Pty Ltd. The dispute centred on the conduct of a settlement agent, who was alleged to have breached the Real Estate Institute of Western Australia's Code of Conduct on several counts. The allegations were investigated by the Board and brought before the Tribunal. The Tribunal had to determine whether the settlement agent breached the Code of Conduct and, if so, what the appropriate disciplinary action should be. The Tribunal was tasked with deciding whether the settlement agent's actions constituted a breach of the Code of Conduct and, if so, what disciplinary action was appropriate. This included determining whether the agent had a conflict of interest, whether they had improperly disclosed confidential information, and whether they had failed to act in the best interests of their client.

The Tribunal found that allegations 1, 2, 3, 4, and 6 were dismissed as there was insufficient evidence to prove them. However, allegation 5 was admitted and proven, establishing that the settlement agent had breached the Code of Conduct. The Tribunal concluded that there was a real and sensible possibility of a conflict of interest due to the agent's relationship with the legal firm involved in the settlement. Furthermore, the agent had failed to cease acting for the client of the legal firm when the conflict arose. The Tribunal found that these actions constituted a breach of the Code of Conduct. The Tribunal decided to reprimand the settlement agent and ordered that the reprimand would only take effect under certain conditions, allowing for potential penalty submissions by the Board.

In conclusion, the Tribunal dismissed several allegations but found that allegation 5 was proven, leading to a breach of the Code of Conduct. The Tribunal issued a reprimand to the settlement agent and set conditions for when the reprimand would take effect, pending any submissions on penalty from the Board. This decision underscores the importance of maintaining professional standards and avoiding conflicts of interest in the settlement industry. The orders included the dismissal of certain allegations, the admission and proof of another, a reprimand for the settlement agent, and specific conditions for the enforcement of the reprimand.

Orders

Orders of the court

1. Allegations 1, 2, 3, 4 and 6 are dismissed; 2. Allegation 5 is admitted and therefore proved; 3. On the basis of a breach of allegation 5 there is cause for disciplinary action; 4. The Tribunal reprimands the settlement agent; and 5. Order 4 does not take effect until the later of 28 March 2008 or if the Board seeks to make submissions as to penalty and of which intention it advises the Tribunal and settlement agent by 28 March 2008, then a date otherwise ordered by the Tribunal.

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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