The Chief Executive, Department of Justice and Attorney-General v Tuxford
[2013] QCAT 338
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| CITATION: | The Chief Executive, Department of Justice and Attorney-General v Tuxford [2013] QCAT 338 |
| PARTIES: | The Chief Executive, Department of Justice and Attorney-General (Applicant) |
| V | |
| Stanley Gordon Tuxford (Respondent) |
| APPLICATION NUMBER: | OCR123-11 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Sandra G Deane, Member |
| DELIVERED ON: | 2 July 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Stanley Gordon Tuxford is reprimanded. 2. Stanley Gordon Tuxford is disqualified permanently from being a holder of any form of licence or registration certificate issued under the Property Agents and Motor Dealers Act 2000. 3. Stanley Gordon Tuxford is disqualified permanently from being an executive officer of a corporation that holds a licence issued under the the Property Agents and Motor Dealers Act 2000 |
| CATCHWORDS: | PROPERTY AGENTS AND MOTOR Property Agents and Motor Dealers Act 2000 - ss 10, 379, 496, 497, 529, 573 The Chief Executive, DTFTWID v Caughey [2006] QCCTPAMD 42 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Tuxford was a licensed real estate agent in Queensland.[1]
[1] Licence number 3062824 issued on 29 October 2004, which remained current until 29. October 2010.
The Chief Executive referred Mr Tuxford to the Tribunal for disciplinary proceedings[2] under the Property Agents and Motor Dealers Act 2000 (the Act) on the grounds that Mr Tuxford has:
a)contravened or breached the Act;[3]
b)in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way.[4]
[2] Section 497.
[3] Section 496(1)(g)(i) of the Act.
[4] Section 496(1)(g)(iii) of the Act.
The Chief Executive contends that Mr Tuxford contravened:
a)section 379 of the Act in that he received money in respect of 6 transactions and failed to immediately pay the money to a trust account.
b)section 573 of the Act in that he, in the course of his duties as a licensee, received an amount of money that belonged to someone else and dishonestly converted the amount of money to his own use.
The Chief Executive also contends that in performing the activities the subject of the contraventions Mr Tuxford has been incompetent and/or acted in an unprofessional way.
I am satisfied that grounds for disciplinary action have been made out.
The circumstances relied upon relate to transactions in 2006 – 2007 involving Mr Tuxford, the sale of land at Pimpama, the Sky group of companies and a director of those companies, Kevin Hutchinson.
A number of purchasers made complaints to the Office of Fair Trading. Through other proceedings in this Tribunal the Appeal Tribunal has awarded amounts to be paid to various purchasers for financial loss out of the statutory fidelity fund based on findings that Mr Tuxford contravened section 470(1) of the Act because of the stealing, misappropriation or misapplication of property entrusted to him as agent in his capacity as a licensee. In each case the property entrusted to him was found to be the purchaser’s deposit under contracts for the sale of the Pimpama land. The total amount awarded out of the fund is in excess of $590,000.
There is evidence before the Tribunal that Mr Tuxford was appointed selling agent in respect of the Pimpama land.[5]
[5] OFT1.
It is not disputed that Mr Tuxford did not open and operate a trust account in accordance with the Act in relation to the sale of the Pimpama land.[6] It is also not disputed that Mr Tuxford did not pay deposit moneys received by him in respect of contracts of sale of the Pimpama land into a trust account.
[6] OFT3; ST3.
There are 6 transactions specifically relied upon by the Chief Executive.
Mr Tuxford contends in respect of the deposits paid by Mr Nijskens in respect of lots 73 and 85 of $50,000 each, that Mr Nijskens negotiated direct with Mr Hutchinson and paid him directly so he did not have any control of those funds.
Mr Tuxford is named as agent in the contract for lot 73 and the associated PAMD Form 27c, Selling Agent’s disclosure document.[7] Mr Nijskens gave a statement[8] of his dealings with Mr Tuxford in relation to these contracts. This includes that Mr Nijskens gave Mr Tuxford $50,000 in cash in respect of the deposit for lot 73 and a further $50,000 in cash in respect of the deposit for lot 85. The documentary evidence does not support Mr Tuxford’s contentions.
[7] OFT4.
[8] OFT6, 12 May 2010.
I prefer the quite specific evidence of Mr Nijskens in relation to payment of the cash deposits to Mr Tuxford.
Mr Tuxford contends in respect of the deposit paid by Mr Wallace and Ms Kowalska in respect of lot 60 of $50,000, that he was not named as agent and ‘as far as I am concerned they paid their money directly to’ Mr Hutchinson.
Whilst Mr Tuxford is not noted as seller’s agent his name is inserted at item 3.2 in relation to selling agent’s disclosure as to commission and he signed the disclosure statement as seller’s agent.[9]
[9] PAMD Form 27c.
Mr Wallace gave a statement[10] that he travelled to Mr Tuxford’s house and ‘paid him the $50,000 in cash’ and that he ‘had never met Hutchinson, nor had any dealings with him over this land transaction’. Ms Kowalska also gave a statement[11] which corroborates Mr Wallace’s statement.
[10] OFT10, 25 May 2010.
[11] OFT11, 27 May 2010.
I prefer the more detailed evidence of Mr Wallace in relation to the payment of the cash deposit to Mr Tuxford.
Mr Tuxford contends in respect of the deposits paid by Mr and Mrs Guraya in respect of lots 12 and 47 of $50,000 each, that they negotiated direct with Mr Hutchinson and the $50,000 was a credit applied from the purchase of a Lowood property with Mr Hutchinson.
I note that whilst Mr Tuxford is not noted as seller’s agent on the contract for lot 12 he is named as selling agent in the disclosure statement signed by him as seller’s agent.[12] Mrs Guraya gave a statement[13] that she is a long time friend of Mr Tuxford’s daughter, Mr Tuxford approached her about purchasing land at Pimpama, she and her husband drove to Mr Tuxford’s house on 19 June 2007 and handed $50,000 in cash to Mr Tuxford and signed a contract for lot 12. She also gave evidence that after Mr Tuxford counted the cash he handed it to Mr Hutchinson.
[12] PAMD Form 27c.
[13] OFT14, 27 May 2010.
Mrs Guraya also gave evidence that on 6 August 2007 she took a further $50,000 in cash to Mr Tuxford’s house for the deposit for lot 47, signed a contract for lot 47, gave the cash to him, he counted the cash and he handed it to Mr Hutchinson.
Mr Guraya gave a statement[14] which corroborates Mrs Guraya’s statement.
[14] OFT15, 27 May 2010.
Mr Tuxford provided some hand written notes. These notes confirm that he counted cash received. This appears inconsistent with the body of his statement that the deposit was a credit from another sale.
I prefer the more detailed evidence of Mrs Guraya in relation to the payment of the cash deposits to Mr Tuxford.
Mr Tuxford contends in respect of the deposit paid by Realeaf Pty Ltd in respect of lot 71 of $29,998.42, that he advanced an amount of $29,998.42 in respect of stamp duty and legals relating to a contract to purchase house and land at Brookwater to “Heindrick” and the amount paid into his account was a repayment of that advance. He therefore contends that he was entitled to deal with the amount paid into his account. Mr Tuxford produced a copy of a page from a diary and some handwritten notes which he submits are consistent with his statement that he advanced this amount to ‘Henrick’. The notes are undated. He also contends that he paid a deposit of $30,000 on Realeaf Pty Ltd’s behalf directly to Mr Hutchinson and was not repaid by Realeaf Pty Ltd.
Mr Lindell, sole director of Realeaf Pty Ltd, gave a statement[15] that he arranged for Henrik Hertzberg to pay the deposit on his company’s behalf, Mr Tuxford ‘created a false IOU that indicated a debt to his business’ and Mr Tuxford stated that the money once paid into his account ‘would then be transferred to the trust account of the developer.’
[15] OFT20, 11 May 2010.
Mr Tuxford’s handwritten notes are not contemporaneous records. I am not satisfied that the diary entry is sufficiently clear to support Mr Tuxford’s position.
I prefer the evidence of Mr Lindell as to the circumstances of payment of the deposit. Mr Tuxford admits that he did not place those funds in a trust account and applied them for his own use.
I am satisfied that Mr Tuxford:
a)failed to ensure that deposit moneys received by him were paid into a trust account in contravention of section 379 of the Act.[16]
b)in carrying on a business or in performing an activity been incompetent or acted in an unprofessional way.[17]
c)received deposit money belonging to Realeaf Pty Ltd and dishonestly converted the money to his own use in contravention of section 573 of the Act.[18]
[16] Section 496(1)(g)(i) of the Act.
[17] Section 496(1)(g)(iii) of the Act.
[18] Section 496(1)(g)(i) of the Act.
I accept the Chief Executive’s submissions that:
a)the contraventions show a lack of regard for the provisions in the Act relating to the handling of trust moneys.
b)Mr Tuxford’s repeated conduct shows a lack of regard for the provisions of the Act, the main object of which is to achieve a balance between the protection of consumers and free enterprise for business in the market place.[19]
[19] Section 10 of the Act.
On Mr Tuxford’s own evidence he has been involved in the real estate industry and the residential building industry in various capacities on and off since 1978 and he first obtained a real estate agent’s licence in Queensland in 1989.
As an experienced real estate agent, Mr Tuxford knew or ought to have known that purchasers rely upon licensees to pay deposit moneys into a trust account.
The Chief Executive contends that appropriate orders include:
a)a reprimand[20];
b)a penalty of up to 20 penalty units or $1,500[21];
c)disqualification permanently from holding any form of licence or registration certificate under the Act[22] and from being an executive officer of a corporation that holds a licence under the Act[23];
d)costs of these proceedings fixed in the sum of $510[24].
[20] Section 529(1)(a) of the Act.
[21] Section 529(1)(b) of the Act; the maximum being 200 penalty units or $15,000.
[22] Section 529(1)(d)(ii) of the Act.
[23] Section 529(i)(e) of the Act.
[24] Section 102 and 107 of the QCAT Act.
Mr Tuxford has made no submissions in relation to an appropriate penalty.
It is well established that the nature of the proceedings is not punitive but rather protective of the standards of the profession and of the public interest. It is central to the public’s confidence in the industry that trust moneys are dealt with appropriately by licensees.
Mr Tuxford has filed a reasonably lengthy affidavit.[25] He gave evidence that:
a)he did not receive commission on the sale of the land at Pimpama;
b)he has been unwell since 2008;
c)to the extent his health and finances permitted he provided certain responses and copies of records to the Department[26];
d)he received details of claims against the statutory fund but did not respond as he could not afford to engage his lawyers to defend them;
e)as at the time of making the affidavit had been virtually unemployed since 2008 and owned no property in his own name, having previously held a portfolio of properties.
[25] Sworn 11 November 2011; filed 24 November 2011.
[26] ST3.
As a consequence of the above a number of the matters sought to be raised by Mr Tuxford in these proceedings had not been raised in earlier claim proceedings nor apparently in the Office of Fair Trading investigations in relation to the claims.
There is evidence before the Tribunal that Mr Tuxford became bankrupt on 12 November 2012. In the circumstances there appears little utility in imposing a penalty or in awarding costs.
The Chief Executive has provided some comparative matters for the Tribunal’s consideration in exercising its discretion as to penalty.
In the matter of Caughey[27] he was convicted in the Brisbane Magistrates Court of dishonestly applying one deposit of $10,000 to his own use. The penalty imposed was disqualification for 10 years, a fine of $900 (12 penalty units) and costs of $1,335. Mr Caughey was remorseful and repaid the amount. The Chief Executive submits this matter is more serious due to the repeated conduct, the larger sum applied for his own use, there has been consumer loss and no indication of remorse.
[27] The Chief Executive, DTFTWID v Caughey [2006] QCCTPAMD 42.
In the matter of Winn[28] he was convicted in the Brisbane Magistrates Court of dishonestly applying $39,500 to his own use and acting as a real estate agent whilst unlicensed on three occasions. The penalty imposed was permanent disqualification and costs of $1,258. Mr Winn had repaid $28,142.50. The Chief Executive submits this matter is more serious due to the repeated conduct, there has been consumer loss and no indication of remorse.
[28] The Chief Executive, Department of Tourism, Racing and Fair Trading v Winn [2003] QCCTPAMD 8.
I accept the Chief Executive’s submission that Mr Tuxford’s conduct is more serious than these comparative matters. As noted earlier in these reasons the Appeal Tribunal has awarded in excess of $590,000 to be paid out of the statutory fund as a consequence of Mr Tuxford’s disregard for the provisions of the Act.
Mr Tuxford’s conduct is “such that he could not be seen to be suitable to deal with members of the public in the real estate industry. His conduct...go to the heart of conduct which the Act is attempting to regulate.”[29]
[29] The Chief Executive, Department of Tourism, Racing and Fair Trading v Winn [2003] QCCTPAMD 8 at [36].
In the circumstances it is appropriate to reprimand him and to permanently disqualify him.
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