The Chief Executive, Department of Employment, Economic Development and Innovation v Schellaars
[2010] QCAT 477
•30 September 2010
CITATION:The Chief Executive, Department of Employment, Economic Development and Innovation v Schellaars [2010] QCAT 477
| PARTIES: | The Chief Executive, Department of Employment, Economic Development and Innovation |
| v | |
| Ms Julie Ruth Schellaars |
| APPLICATION NUMBER: | GAR112-10 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | Decision on the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Peta Stilgoe |
| DELIVERED ON: | 30 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Ms Schellaars be disqualified from holding a licence under PAMDA for a period of 5 years.
|
| CATCHWORDS : | PENALTY – where licensee improperly withdrew money from trust account and invested in a holiday account – where no loss suffered – where cooperation with the Department COSTS – whether in interests of justice |
APPEARANCES and REPRESENTATION (if any):
This matter was heard on the papers in accordance with section 32 of the
Queensland Civil and Administrative Tribunal Act 2009
REASONS FOR DECISION
These facts are not in dispute:
a)From 1 January 2008 to 1 January 2009, Ms Schellaars was the holder of a real estate agent’s licence.
b)From 9 November 2007 to 15 May 2009, Ms Schellaars was a director of Zinc Properties Pty Ltd (“Zinc”).
c)Zinc held a trust account and in the course of carrying on the business of real estate, Ms Schellaars and Zinc received trust money totalling $42,239.50.
d)From 23 January 2008 to 15 December 2008, in 23 separate transactions, Ms Schellaars paid money from the trust account into a non-trust account called Zinc Properties Noosa Holiday Account (“the holiday account”). The money was moved from the holiday account to an interest bearing account, back to the holiday account and then back to the trust account
The Department has instituted disciplinary proceedings against Ms Schellaars on two alternative bases:
a)She is an unsuitable person to hold a licence.
b)In carrying on her business, Ms Schellaars has acted in an unprofessional way.
Section 385 of Property Agents and Motor Dealers Act 2000 (“PAMDA”) regulates withdrawals from a trust account. It is clear that Ms Schellaars was not authorised to withdraw any of the amounts the subject of this proceeding. I am satisfied that Ms Schellaars has acted in an unprofessional way. I am also satisfied that Ms Schellaars is an unsuitable person to hold a licence.
Penalty
The Department points out that:
a)The potential consequences of a breach of section 385 are very serious. The Act provides for a maximum penalty of 200 penalty units or 3 years imprisonment.
b)The breaches were not technical or minor in nature.
c)The contraventions were numerous and repetitive.
d)Ms Schellaars improperly dealt with a sizeable amount of money.
However, the Department also points to a number of factors in mitigation:
a)Ms Schellaars has not contested the application.
b)None of her clients has suffered financial loss.
c)Ms Schellaars has cooperated fully with the Department and shown remorse.
d)There have been no claims on the PAMDA fund.
e)Ms Schellaars did not use the funds in the operation of her business.
The Department submits that a disqualification in the range of 2 to 5 years is appropriate, together with a fine of $2000 and costs. It has referred the tribunal to The Chief Executive, Department of Tourism, Fair Trading & Wine Industry Development V Cornwell[1]. Mr Cornwell improperly misused trust money on 5 separate occasions. The total amount misused was $36,612.39. He, too, cooperated with the Department. The tribunal disqualified him for 10 years but he was not prevented from applying for registration as a real estate salesperson or trainee auctioneer. The tribunal also imposed a penalty of 40 penalty unit, or $4000.
[1] [2005] QCCTPAMD 49
The primary purpose of PAMDA is to protect consumers. That necessarily requires licensees to deal with trust money properly and not to apply it to their own use. The fact that none of Ms Schellaars’ client suffered financial loss is more a matter of luck than good judgment.
The only difference between Mr Cornwell’s activities and Ms Schellaars is that she did not use the funds in the operation of her business. For that reason, I am prepared to impose a shorter disqualification in this case. Given that Ms Schellaars’ misuse was more frequent, over a longer period and involved a larger amount, I consider that she should be subject to a larger fine.
I order that Ms Schellaars be disqualified from holding a licence under PAMDA for a period of 5 years. I further order that she pay a fine of $5000.
Costs
10. The Department says that it is entitled to apply for an order for costs pursuant to section 102 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”). While that is true, the submission ignores the threshold position in section 100 of the QCAT – that each party must bear their own costs unless the interests of justice require it. The Department also fails to address the matters to which the tribunal may have regard under section 102(3) of the QCAT Act.
11. I am not persuaded that the interests of justice require an order for costs in the Department’s favour.
Conclusion
12. I order that:
a)Ms Schellaars be disqualified from holding a licence under PAMDA for a period of 5 years.
b)Ms Schellaars pay a fine of $5000, payable within 28 days of the date of this order.
13. There is no order as to costs.
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