The Chief Executive, Department of Employment, Economic Development and Innovation v Welburn
[2010] QCAT 202
•5 May 2010
| CITATION: | The Chief Executive, Department of Employment, Economic Development and Innovation v Welburn [2010] QCAT 202 |
| PARTIES: | The Chief Executive, Department of Employment, Economic Development and Innovation |
| v | |
| Ms Tricia-Anne Welburn |
| APPLICATION NUMBER: | PD029-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 19 April 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Susan Gardiner |
| DELIVERED ON: | 5 May 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | ORDERS 1 That Tricia-Anne Welburn is permanently disqualified from holding a license or registration certificate under the Act; 2 That Tricia-Anne Welburn is permanently disqualified from being an Executive Officer of a corporation that holds a license or registration certificate under the Act; 3 That Tricia-Anne Welburn pay to The Chief Executive Officer a fine of 70 penalty points ($5,250) by 4pm on 2 July 2010; 4 That Tricia-Anne Welburn will be pay the cost of The Chief Executive Officer set in the sum of $745 by 4pm on 2 July 2010. |
| CATCHWORDS : | Property Agents and Motor Dealers Act 2000 ss 496, 497; disciplinary proceedings; real estate agent; improper use of trust monies; bonds and rental; fine and disqualification |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The Chief Executive, Department of Employment, Economic Development and Innovation |
| RESPONDENT: | Ms Tricia-Anne Welburn |
REASONS FOR DECISION
Tricia-Anne Welburn held a real estate agent’s license in Rockhampton Queensland from 19 July 2006. The company Welburn Nominee’s Pty Ltd of which Tricia-Anne Welburn was the sole director and secretary, also held a real agent’s licence for the same period. The business traded in Rockhampton as Allenstown Realty.
For the period 22 May 2007 to 31 January 2008 Allenstown Realty managed 8 units 29 Church Street Rockhampton for Alan Bailey Nominees Pty Ltd and collected the bond monies and the rent monies on the company’s behalf. For the subject period, Welburn Nominees Pty Ltd held a trust account with the National Australia Bank.
Bond Monies
Between 22 May 2007 and 3 January 2008, Allenstown Realty collected 8 rental bonds totalling $8,820.00. Only two of these payments were paid into the trust account of the realty as required under s 379 of the Property Agents and Motor Dealers Act 2000 (PAMDA Act). S 59 of the Residential Tenancies Act 1994 requires the payment of bond monies to the authority within 10 days of receipt. This also did not occur. The first cheques were sent to the Authority on 11 and 12 February 2008 and were dishonoured on presentation. A further cheque for the total bond amount was sent to the Authority on 25 February 2008. This cheque was honoured but sent well outside the required period of 10 days from receipt.
Rent
In total, the rent collected from Allenstown Realty which should have been dispersed to Alan Bailey Nominees Pty Ltd was $30,592.50. Allenstown Realty only dispersed $12,110.57. $18,481.93 remains outstanding. These amounts are itemised in the schedule of rents attached to the application filed in the then Commercial and Consumer Tribunal (the predecessor to the Queensland Civil and Administrative Tribunal) on 23 November 2009 on behalf of The Chief Executive, Department of Employment, Economic Development and Innovation.
Section 385(4)(b) of PAMDA required Allenstown Realty to pay the outstanding rental funds from the trust account to the person entitled to it within 42 days if the person entitled had not asked for the funds in writing. As at 22 January 2010, Tricia-Anne Welburn had not paid the outstanding trust monies received as rent to Alan Bailey Nominees Pty Ltd. The property owners have made a claim on the claim fund established under the PAMDA Act for the sum of $18,481.93 not paid by Ms Welburn or her company. Welburn Nominees Pty Ltd is now a deregistered company.
Application
The application filed on behalf of the Chief Executive sought the Tribunal to decide whether disciplinary grounds are established against Tricia-Anne Welburn under sections 496 and 497 of the PAMDA Act and for the imposition of a penalty under section 529 of that Act if the disciplinary grounds are established.
The Chief Executive applied for four charges. These are under section 496 of the PAMDA Act. They were:
Under s 496(1)
1that Tricia-Anne Welburn is an unsuitable person to hold a license (ss(1)(g)(i));
2that Tricia-Anne Welburn has acted in an unprofessional way carrying on a business or performing an activity (ss(1)(g)(iii));
3that Tricia-Anne Welburn was an Executive Officer of Welburn Nominees Pty Ltd a corporation in relation to whom the Tribunal finds ground exist to take disciplinary action under section 529 of the PAMDA Act as an unsuitable person to hold a license (ss(1)(g)(iv)); or
4that Tricia-Anne Welburn was an Executive Officer of Welburn Nominees Pty Ltd, a corporation in relation to whom the Tribunal finds ground exist to take disciplinary action under section 529 of the PAMDA Act for acting in an unprofessional way carrying on a business or performing an activity (ss(1)(g)(iv).
At a directions hearing before this Tribunal on 19 January 2010, Tricia-Anne Welburn informed the Tribunal that she had read the application and the supporting material and that she did not contest the charges as outlined. That directions hearing set out a timetable for the provision of submissions on penalty and on 3 February 2010 the Chief Executive Officer provided his submissions.
No submissions have been received in response from Ms Welburn.
10. The applicant submits that the failure of a licensee to deal with trust account monies consistent with the agents trust account obligations is one of the most serious departures from a real estate agent’s professional responsibilities. Failing to preserve trust funds lowers the confidence of the public in the industry and professional standards of the industry.
11. Disciplinary proceedings are intended to protect both public and other professional parties and the gravity of these charges can be seen in the substantial nature of the potential penalties imposed, 200 penalty units for an individual, 1000 penalty units for a corporation and potential disqualification from holding a licence either permanently or for a stated period.
12. A breach of section 385(4) of the PAMDA Act involving non-payment of monies from a trust account to a person entitled to those monies within 42 days of the entitlement arising is also grounds for an indictable prosecution with a maximum penalty of 200 penalty points or three years imprisonment.
13. Ms Welburn’s actions and those of the corporation of which she was sole officer showed a pattern of conduct over a substantial period. They were not isolated incidents. Her actions deprived property owners of their legitimate funds and the fund under the PAMDA Act now faces a claim for the outstanding amount of some thousands of dollars. Public monies have also been extended investigating and bringing these actions.
14. In Ms Welburn’s favour, she co-operated with the investigation and did not contest the charges. This Tribunal is satisfied on the material that Ms Welburn’s admission of guilt is appropriate and that she is pleading guilty to the four charges as outlined in the application.
15. This Tribunal also accepts the serious nature of these prolonged breaches of Ms Welburn’s responsibilities for trust funds both individually and as the Executive Officer of Welburn Nominees causing a financial detriment to the property owners and potential causing a lack of public confidence in the industry and the professional standing of other parties in the industry.
16. In mitigation Ms Welburn did co-operate with the Department investigation and did not contest the charges.
PENALTY
17. By way on comparative penalties, The Chief Executive has referred the Tribunal to two matters. The first is the decision of Cornwall [2005] QCCTPAMD 49. In that matter between 14 October 2004 and 27 October 2004, Mr Cornwall removed on five occasions trust account monies totalling $30,612.39 from the trust account and paid those monies into the working account of the business. In mitigation, Mr Cornwall pleaded guilty at an early stage to the proceedings and paid the monies back within two months of the monies being withdrawn from the trust account co-operating fully with the then Office of Fair Trading and showing remorse. The taking of these funds did not cause any loss to the PAMDA claim fund. In that matter Mr Cornwall was disqualified for ten years, fined $3000 and ordered to pay legal costs.
18. The second reference by The Chief Executive is to the matter of Kevin Winn [2003] QCCTPAMD 8. In that matter Mr Winn was a licensed real estate agent and pleaded guilty in the Magistrates Court to dishonest conversion of $39,000. The monies were received following a sale of property listed with Mr Winn. Mr Winn did not renew his licence and whilst unlicensed sold a further three properties and received a total commission of $20,487. Mr Winn pleaded guilty in the Magistrates Court to acting as an unlicensed agent and at the time of the Tribunal proceedings the monies had been repaid. In this matter, Mr Winn was permanently disqualified from holding a license or a registration certificate or being an Executive Officer of a corporation that holds a license and was ordered to pay legal costs.
DETERMINATION SOUGHT
19. The Chief Executive Officer seeks that Tricia-Anne Welbrun be permanently disqualified and that it be a fine be imposed to reflect the seriousness of her actions. The Chief Executive Officer also seeks that costs of and incidental to the application in the sum of $745 be paid by Ms Welburn. The Chief Executive submits that the imposition order sought would recognise consumers need to be protected in their dealings with licensees and would also protect the standards of the industry by insuring only suitable persons are licensed. The penalty imposed would also operate to deter other licensed persons who may be minded not to comply with the legislation.
CONCLUSION
20. The Tribunal is satisfied that the contraventions are so serious and flagrant that Ms Welburn should be permanently disqualified from holding a license or registration certificate under the Act or from being an Executive Officer of a corporation that holds a license.
21. There also remains a potential outstanding loss to the PAMDA claim fund. The Tribunal is also satisfied that a substantial fine should be imposed for deterrent purposes. A amount of the fine imposed will reflect the serious nature of the charges and the financial detriment imposed on the public and the individual property owners by Ms Welburn’s actions. It will be a lesser fine than the Tribunal would have imposed but for the Ms Welburn’s co-operation and guilty plea.
22. the Tribunal is satisfied in the circumstances the appropriate penalty is a fine of 70 penalty points namely applying the penalty point value in force at the time when the actions occurred, the sum of $5,250.
23. Finally the tribunal is also satisfied that this is an appropriate case for an award of costs against Tricia-Anne Welburn. The Chief Executives costs has been sought in the modest sum of $745 submitted on the Magistrates Court scale contained in Schedule Three of the Uniformed Civil Procedure Rules 1999. This is accepted as an appropriate scale and costs will be allowed at $745. Both the fine imposed and the costs of these matters are to be paid by the Ms Welburn within two months.
ORDERS
The formal orders of the Tribunal will therefore be:
1That Tricia-Anne Welburn is permanently disqualified from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000;
2That Tricia-Anne Welburn is permanently disqualified from being an Executive Officer of a corporation that holds a license or registration certificate under the Property Agents and Motor Dealers Act 2000;
3That Tricia-Anne Welburn pay to The Chief Executive Officer a fine of 70 penalty points ($5,250) by 4pm on 9 July 2010;
4That Tricia-Anne Welburn will be pay the cost of The Chief Executive Officer set in the sum of $745 by 4pm on 9 July 2010.
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