The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation v Martin
[2010] QCAT 322
•20 May 2010
| CITATION: | The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation v Martin [2010] QCAT 322 |
| PARTIES: | The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation |
| v | |
| Ms Desley Gay Martin |
| APPLICATION NUMBER: | PD28-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 20 May 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Phillip Pennington (Member) |
| DELIVERED ON: | 20 May 2010 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: |
The Respondent will pay a fine of $1500 to the Chief Executive by 4 p.m. on 1 October 2010;
The Respondent is disqualified from holding any form of licence issued under PAMDA for a period of five years from 20 of May 2010;
The Respondent is prohibited from being an executive officer of a corporation that holds any form of licence issued under PAMDA for a period of five years from 20 of May 2010;
The Respondent is prohibited from holding a certificate of registration issued under PAMDA for a period of five years from 20 of May 2010;
There is no order is to costs.
| CATCHWORDS : | Property Agents and Motor Dealers Act 2000 ss 154, 469; Property Agents and Motor Dealers (Real Estate Agency Practice Code Of Conduct) Regulation 2001 s7(2); disciplinary proceedings; real estate agent practising unlicensed; whether licensee not a suitable person to hold licence; whether licensee has in carrying on a business or performing an activity, the incompetent or acted in an unprofessional way; fine and disqualification |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The Chief Executive, Office of Fair Trading, Department of Employment, Economic Development & Innovation |
| RESPONDENT: | Ms Desley Gay Martin |
REASONS FOR DECISION
The Respondent was a licensee under a real estate agent licence number 1702528 that was valid until 9 June 2007. This licence, issued under the Property Agents and Motor Dealers Act 2000 (PAMDA) enabled Ms Martin to perform a wide range of activities in relation to the sale of property in Queensland. Other licences, requiring the holder to be supervised or carry out a restricted range of activities, are issued to persons with less experience in the real estate industry.
Ms Martin's licence was not renewed following expiry on 9 June 2007. Subsequent to that date the Respondent was employed at three real estate agencies in the Redland Bay area, namely Ray White Wellington Point, Raine and Horne Wellington Point, and Harcourts Carina/Carindale, and was associated with a number of agency engagements and contracts for the sale of residential properties.
Application
The Applicant started these disciplinary proceedings on 20 November 2009. By the first charge, it was alleged that the Respondent was not a suitable person to hold a licence, and by a further five charges it was alleged that the Respondent had in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way.
These proceedings were commenced before the Commercial and Consumer Tribunal. The Queensland Commercial and Administrative Tribunal has jurisdiction to finalise an unresolved disciplinary proceedings upon the former Tribunal having ceased to function as of 14 December 2009 (sec 256 Queensland Commercial and Administrative Tribunal Act).
The Respondent filed a Response on 16 March 2010. This Tribunal ordered a compulsory conference occur between the Applicant and the Respondent, resulting in agreement upon certain orders that this Tribunal might make if this Tribunal were to find that the charges are proven. The Respondent admitted the particulars contained in the application, and the Tribunal did not order the Respondent to file anything. Those are the only observations that may be made about that compulsory conference (Sec 74 QCAT Act).
The Tribunal has then the following materials to refer to in making findings upon the six charges;
a.the Applicant’s evidence.
b.the Respondent’s statements contained in her Response; and
c.the Respondent's admission of the accuracy of the particulars.
The evidence of the Applicant
The evidence of the Applicant is contained in;
a.an affidavit of Ashley Collins (Collins) sworn 20 May 2010. Collins is an Inspector appointed under the provisions of PAMDA.
b.a statement of Adrian Long (Long) signed 18 March 2010. Long is a Team Leader employed by the Office of Fair Trading, Queensland Government.
c.an affidavit of Richard Danen (Danen) sworn 18 April 2010. Danen is a Senior Legal Officer employed by the Applicant.
The Respondent was not the holder of a licence under PAMDA as from 10 June 2007. A certificate, being Exhibit No 4 to the affidavit of Collins, was issued by a Senior Business Services Officer in the Industry Licensing Unit, Department of Justice and Attorney General dated 10 February 2009, whereby it was declared that the Officer had searched the licensing records held by the Department Justice and Attorney General pursuant to PAMDA, and that the Respondent’s real estate agent licence had expired 10 June 2007;
Redlands Properties Pty Ltd, trading as Ray White Wellington Point, had in its possession two copies of a document purporting to be a real estate agent licence number 1702528 issued to the Respondent. The first indicated an expiry date of 10 June 2007, the second indicated an expiry date of 10 June 2010 (‘the 2010 Expiring Certificate’). The two certificates are respectively Exhibits numbers 28 and 29 to the affidavit of Collins.
Long’s affidavit deposes to differentiating features of current, validly issued PAMDA licensee certificates, and the enquiries that he made upon having received a copy of the ‘2010 Expiring Certificate’ from the last of the Respondent’s employers, Harcourts Carina/Carindale. Important differentiating features were a different signature of a senior public servant, and different typed text. Database information about the changes is set out at Exhibit No 3 of Collins’ affidavit.
The Respondent was associated with several property transactions whilst employed at Ray White Wellington Point, as identified by Exhibits Nos 31, 32 and 33 to the affidavit of Collins;
a.A contract of sale dated 14 June 2007 (property at lot 10 North Haven Place, Wellington Point) -- Exhibit 32;
b.a contract of sale dated the third of July 2007 (property at Dyer St Alexandra Hills) -- referred to in a database held by Redlands Properties Pty Ltd in respect of completed sales -- Exhibit 33;
c.the appointment of Redlands Properties Pty Ltd a sales agent (property at Hilliards Park Drive, Wellington point) -- Exhibit 31.
The Dyer Street property transaction is only identified by reference to the database of the Respondent’s employer at the time, Redlands Properties Pty Ltd. The other exhibited documents indicate the Respondent having signed documentation on behalf of the real estate agency.
At the date the several instruments were entered into with reference to the preceding paragraphs number 12, the Respondent was unlicensed.
The Respondent represented to a prospective or actual employer on or about 27 February 2008 that she was the holder of a real estate licence. This is substantiated by Exhibit Nos respectively 13 and 14 to the affidavit of Collins, which are an ‘employment authority’ declaring that the Respondent has a licence (No 1702528) with an expiry date of 10 June 2008, and an ‘employment register’ recording the same details. Both documents are dated 27 February 2008 and are dated and signed by the Respondent and Distribunet Australia Pty Ltd, the principal licensee of the business trading as Raine and Horne Wellington Point.
Whilst employed at Raine and Horne Wellington Point the Respondent was associated with the following property transactions, as identified by Exhibits Nos 16 to 26 to the affidavit of Collins;
a.An appointment of Distribunet Australia Pty Ltd as agent dated 6 February 2008, two subsequent contract of sales dated 23 February 2008 and 8 March 2008, and selling agents disclosure to the buyer (property at 16 Kevin St, Capalaba) -- Exhibits Nos 16, 17, 18, and 19;
b.An appointment of Distribunet Australia Pty Ltd as agent dated 31 March 2008, a contract of sale dated 4 April 2008 (property at Cherry Street, Wellington Point) -- Exhibits Nos 20 and 21;
c.An appointment of Distribunet Australia Pty Ltd as agent dated 12 April 2008, a contract of sale dated 16 May 2008 (property at Masthead Drive, Cleveland) -- Exhibits Nos 22 and 23;
d.contracts of sale dated 26 January 2008 and 2nd February 2008 (property at Marlin Street, Thorneside) -- Exhibits Nos 24 and 25;
e.An appointment of Distribunet Australia Pty Ltd as agent dated 14 June 2008, (property at Masthead Drive, Cleveland) -- Exhibit Nos 26;
In all such cases the Respondent signed documents associated with the transactions on behalf of the real estate agency. At the date the several instruments were entered into with reference to the preceding paragraphs number 15, the Respondent was unlicensed.
The Respondent represented to a prospective or actual employer between the dates 5 January to 19 January 2009 that she was the holder of a licence. This is substantiated by Exhibit numbers respectively 8 to 10 to the affidavit of Collins, which are;
a.an employment register dated 5 January 2009 signed by the Respondent declaring that the Respondent had a licence (No 1702528) with an expiry date of 10 June 2010 -- Exhibit 8;
b.a notice directed to the Office of Fair Trading dated 14 January 2009 requesting that the Respondent’s ‘sale certificate’ be attached to the corporation licence for Platinum Properties (Qld) Pty Ltd trading as Harcourts Carina/Carindale -- Exhibit 9
c.an employment agreement dated 5 January 2009 made between Platinum Properties (Qld) Pty Ltd trading as Harcourts Carina/Carindale and the Respondent signed by the Respondent referring to the purported registration licence number 1702528 -- Exhibit 10
Exhibit No 11 to Collins’ affidavit is a letter issued by Harcourts Carina/Carindale where it is claimed that the Respondent had not signed any listings nor negotiated or sold any properties during her employment period with that agency.
Platinum Properties (Qld) Pty Ltd, the operator of the Harcourts Carina/Carindale real estate business, had in its possession a document purporting to be real estate agent licence number 1702528 issued to the Respondent indicating an expiry date of 10 June 2010. The certificate was collected from a person in charge of that real estate agency and is Exhibit No 6 to the affidavit of Collins. It appears to be the same "2010 Expiring Certificate" that the Tribunal has already referred to in this decision.
The Tribunal has no direct evidence as to who carried out the fraudulent defalcation to the licence certificate, but it must be noted that in the particulars of the Applicants application, paragraph 32 alleges that the Respondent caused those alterations, and as this Tribunal has observed, the Respondent admitted the allegations contained in the particulars.
There is no evidence that the licence certificate was on display at any of the employer’s real estate offices, or whether it was displayed to consumers.
The Respondent
Danen declares in his sworn statement that on 17 December 2009 he posted a folder of materials to the Respondent which included draft statements respectively of Collins and Long. Danen also swears that accompanying those statements was all of the Exhibited material to which this Tribunal has referred to in these reasons.
According to the Respondent's response filed 16 March 2010, the Respondent had some business and personal difficulties to contend with during the 2007-2009 period. As it is not material to deciding the appropriateness of the penalty, the Tribunal can summarise the difficulties by noting that she ceased to own her own business, had a rental dispute with a landlord which escalated to a serious level, and her personal affairs were in disarray.
The PAMDA legislation
Section 128 of PAMDA says:
(1) A real estate agent’s licence authorises the holder of the licence (real estate agent) to perform the following activities as an agent for others for reward—
(a) to buy, sell, exchange, or let places of residence or land or interests in places of residence or land;….
(2) A real estate agent may perform the activities in the carrying on of a business, either alone or with others, or as an employee of someone else.
Section 160 of PAMDA says:
(1) A person must not, as an agent for someone else for reward, perform an activity that may be done under the authority of a real estate agent’s licence unless the person—
(a) holds a real estate agent’s licence and the performance of the activity is authorised under the person’s licence; or(b) is otherwise permitted under this or another Act to perform the activity.
The Respondent, had she been the holder of a current real estate licence, could have carried out the activity of selling places of residence either in her own right or as an employee. Being unlicensed however, the Respondent has clearly breached section 160 of PAMDA by her conduct.
Section 154 of PAMDA permits the Regulations to PAMDA to set out a "Code of Conduct". The Code set out in PAMDA’s Regulations incorporates, as a positive stipulation, a duty of professional conduct on the part of a "real estate agent". It says in section 7 (1) that;
“A real estate agent must act honestly, fairly and professionally in the conduct of a real estate agency practice”.
(Sec 7(2) (Property Agents and Motor Dealers (Real Estate Agency Practice Code Of Conduct) Regulation 2001).
The Applicant is authorised by the PAMDA legislation to administer and enforce its provisions. It may commence a disciplinary proceeding against ‘a licensee’ where;
“ (i) the licensee is not a suitable person to hold a licence; or
…..
(iii) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way;”(Sec 496(1)(g) (i) and (iii) PAMDA)
The Respondent falls within the range of persons against whom disciplinary proceedings may be taken, as the expression "licensee" is defined in section 496 of PAMDA as including a "former licensee". Schedule 2 of PAMDA defines a former licensee as a person who held a licence under PAMDA.
Section 529 of PAMDA enables this Tribunal to make orders requiring payment to the Applicant chief executive of fines of up to $20,000.00, orders that persons be disqualified permanently or for periods stated in the order from holding a licence or registration certificate, and orders that persons be disqualified from being an executive officer of a corporation that holds a licence.
Findings on the evidence
The Tribunal is satisfied that each of the six charges are proven.
The Respondent is not a suitable person to hold a licence (Charge No 1). By way of summary of the evidence, the Respondent;
a.represented to prospective employers that she had had a licence status under PAMDA when she knew or ought to have known this was not a truthful representation;
b.variously claimed that an expired licence had an expiry date of June 2008 or June 2010;
c.either facilitated or acquiesced in the conduct of some other unknown person in defalcating an official government licence;
d.did not satisfactorily explain how any of the prospective employers came to be in the possession of the "2010 Expiring Certificate";
e.signed commission and sales documentation in the course of employment with licensed real estate agents; and
f.by reason of signing documentation, as employee of another licenced agent, the Respondent did things that only a licensed real estate agent could do, and thereby breached section 160 of PAMDA.
The Respondent has in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way (Charges Nos 2 to 6). The above summary of the proven misconduct of the Respondent equally demonstrates unprofessional conduct as explained below.
‘Unprofessional conduct’ is not defined in the Act, and its ordinary meaning (see The Macquarie dictionary 5th Edn) is denoted as including;
“ 1.Contrary to professional ethics; unbecoming in members of a profession.
The Respondent has failed to comply with the PAMDA Code of Conduct by not acting honestly in the conduct of the real estate practice, if that Code bound the Respondent at the material times. In The Chief Executive, DTFTWID v McNamara (2005 QCCTPAMD 11) Member Gallagher was satisfied that where there had been a failure to comply with the Code of Conduct this meant that the individual had acted in an unprofessional way for the purposes of a prosecution under section 496 of PAMDA. It's also been accepted that the Code of Conduct is the "most appropriate measuring stick," when judging whether conduct is unprofessional - see The Chief Executive, DTRFT v Gunther, J. Gunther, J. Talitha & McLaren, W. (2004) QCCTPAMD 68, where it was unsuccessfully argued that the Code was inapplicable to conduct because it wasn't in existence at the time of the alleged conduct.
This Tribunal also finds, if the Code of Conduct was inapplicable to the Respondent, that the failure to hold a licence where it is required to lawfully perform an activity is unprofessional.
The fact of a person ceasing to be licensed does not defeat the purposes of the legislation, in that individuals affected by their breach of duties are nevertheless able to bring claims against the Claims Fund established under PAMDA, because such a claim involves the conduct of a person defined as a “licensee”, which for the legislation includes a "former licensee" (Sec 469 PAMDA).
Penalty
The Tribunal considers that the penalties agree at the compulsory conference, as set out below, are appropriate. The penalties demonstrate that proven breaches of the Act result in serious consequences which should serve as a disincentive to such conduct occurring.
The orders that the Tribunal makes are:
a.The Respondent will pay a fine of $1500 to the Chief Executive by 4 p.m. on 1 October 2010;
b.the Respondent is disqualified from holding any form of licence issued under PAMDA for a period of five years from 20 of May 2010;
c.the Respondent is prohibited from being an executive officer of a corporation that holds any form of licence issued under PAMDA for a period of five years from 20 of May 2010;
d.the Respondent is prohibited from holding a certificate of registration issued under PAMDA for a period of five years from 20 of May 2010;
e.there is no order is to costs.
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