The Chief Executive, Office of Fair Trading Department of Employment, Economic Development & Innovation v Mascotbury Pty Ltd
[2010] QCAT 464
•23 September 2010
CITATION:The Chief Executive, Office of Fair Trading
Department of Employment, Economic Development & Innovation v Mascotbury Pty Ltd [2010] QCAT 464
| PARTIES: | The Chief Executive, Office of Fair Trading Department of Employment, Economic Development & Innovation |
| v | |
| Mascotbury Pty Ltd (Under External Administration) Dean Bazvand aka Djalaladdin Bazvand |
| APPLICATION NUMBER: | PD013-09 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Susan Gardiner |
| DELIVERED ON: | 23 September 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1) That Mascotbury Pty Ltd (EXAD) is permanently disqualified from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000; 2) That Dean Bazvand aka Djalaladdin Bazvand is disqualified for a period of ten years from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000; 3) That Dean Bazvand aka Djalaladdin Bazvand is disqualified for a period of 10 years from being an Executive Officer of a corporation that holds a license or registration certificate under the Property Agents and Motor Dealers Act 2000. |
| CATCHWORDS : | Property Agents and Motor Dealers Act 2000 ss 496, 497; disciplinary proceedings; motor dealer; non-payment of transfer fees and stamp duty; disqualification |
REASONS FOR DECISION
Mascotbury Pty Ltd (EXAD) carried on a motor dealing business as Brisbane Auto Centre in Acacia Ridge. Mascotbury Pty Ltd (EXAD) held a motor dealer corporation’s licence from 18 December 1997 till it was withdrawn on 19 August 2008 but the relevant period for these proceedings was between 1 October 2007 and 1 June 2008.
Dean Bazvand was the director of Mascotbury Pty Ltd (EXAD) and held a motor dealers principal’s license from 19 August 1993 to 19 August 2008 when it was withdrawn. Mr Bazvand was responsible for the administration and the day to day running of the business.
In an application filed on 24 June 2009 with the then Commercial and Consumer Tribunal (the predecessor Tribunal to this Tribunal), the applicant alleged that during the relevant period, Mascotbury Pty Ltd (EXAD) sold at least 180 motor vehicles to members of the public and charged the purchasers of those vehicles stamp duty and motor vehicle transfer fees on each sale.
Mascotbury Pty Ltd (EXAD) undertook, on behalf of all purchasers to pay the stamp duty and motor vehicle transfer fees to the Queensland State Government. Mascotbury Pty Ltd (EXAD) did not make these payments. The Chief Executive further alleged that Mr Bazvand knew, in his role as manager of the business, that Mascotbury Pty Ltd (EXAD) had failed to make these payments on behalf of the purchasers.
The application filed on behalf of the Chief Executive sought the Tribunal to decide whether disciplinary grounds are established against Mascotbury Pty Ltd (EXAD) and Mr Bazvand 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(1) of the Property Agents and Motor Dealers Act 2000 (the PAMDA Act). They were:
For Mascotbury Pty Ltd (EXAD)
a) that Mascotbury Pty Ltd (EXAD) has acted in an incompetent or unprofessional way carrying on a business or performing an activity (ss(1)(g)(iii));
b) that Mascotbury Pty Ltd (EXAD) is not a suitable person to hold a license (ss(1)(g)(i));
For Dean Bazvand
a) that Dean Bazvand was an Executive Officer of Mascotbury Pty Ltd (EXAD) a corporation in relation to whom the Tribunal finds grounds exist to take disciplinary action under section 529 of the PAMDA Act (ss(1)(g)(iv));
b) that Dean Bazvand is not a suitable person to hold a license (ss(1)(g)(i));
On 13 August 2010, directions were made by this Tribunal requiring each party to file submissions on penalty and for the application to be determined on the papers. Submissions on penalty had previously been received from the applicant on 12 July 2010 and from Mr Bazvand on 30 July 2010. No submissions were received from Mascotbury Pty Ltd (EXAD). These reasons are the determination on penalty.
Applicant’s submissions on penalty
The applicant submits that the public interest is an important factor in disciplinary proceedings because a primary object of such proceedings is to protect members of the public from unprofessional conduct. The gravity of these charges can be seen in the substantial nature of the claim fund loss of $90,000 with little or no prospects of recovering these funds from the respondents. Over 8 months and involving 171 transactions, no monies were paid for transfer fess or stamp duty despite the purposes stated in the contracts. The monies were invoiced to each purchaser and included in the purchase price of each vehicle and were received by the motor dealer to be used for the stated purpose and in such circumstances, are akin to trust monies.
The applicant relies on the decisions of Cornwell[1] and Hopper[2] and seeks orders that the first and second respondents be permanently disqualified from holding a license or registration certificate under the PAMDA Act and that the second respondent be permanently disqualified from being an executive officer of a corporation that holds a license under the PAMDA Act.
[1] [2005] CCTX007-05
[2] [2008] CCT PD008-08
Mr Bazvand’s submissions on penalty
10. Mr Bazvand submits that:
a.he has all times co-operated with the investigating officers and indicated at an early stage that he wished to plead guilty and has thereby saved the applicant considerable costs;
b.he and his wife have been bankrupted and that has caused considerable financial hardship and personal stress;
c.he had no previous criminal history and no previous offences with Fair Trading;
d.he has been in the motor vehicle industry for over 20 years and this is the first time any charges have been brought against him;
e.although he is currently engaged in full time employment, because of his dependants and his bankruptcy, he has limited capacity to pay fines or restitution;
f.he did not commit offences of fraud and did at a later date, give all the relevant transfer documents to the Department of Transport, full co-operating with the Fair Trading Office.
11. In a supporting affidavit, Mr Bazvand states that he had arrangements with a financial services company, Auto Credit Financial Services based in Western Australia to finance prospective purchasers and to retain up to 20% of the finance agreement to include stamp duty, purchase price, registration fees and transfer fees for the vehicles. Mr Bazvand states that large sums money were not refunded to the car yard from the finance company which included the transfer and registration fees for the vehicles. Mr Bazvand says this is why the cars were not transferred and registered. Mr Bazvand states he is still in dispute with the finance company over the monies owing.
12. Mr Bazvand provides a number of personal references from people who personally know him. Mr Bazvand is commended as an honest, reliable person with strong family values. However, none of the personal references provided show that the referee had any knowledge of the nature of the matter before this Tribunal and the weight to be given of these personal references is thereby lessened because they provide the reference without, on the face of the references given, any knowledge of the serious nature of the charges. Some of the references predate the matter by a number of years and little weight can be given to their contents.
13. Mr Bazvand’s actions and those of the company of which he was the sole officer showed a pattern of conduct over a substantial period. These were not isolated transactions. Over 8 months the actions deprived Queensland Transport and the Office of State Revenue of transfer fees and stamp duty. 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 Mr Bazvand’s favour, he co-operated with the investigation and did not finally contest the charges. This Tribunal is satisfied on the material that Mr Bazvand’s admission of guilt is appropriate and that he is pleading guilty to the four charges as outlined in the application.
15. This Tribunal accepts the serious nature of these prolonged breaches of Mr Bazvand’s responsibilities for the payment of transfer fees ands stamp duty both individually and as the Executive Officer of Mascotbury Pty Ltd (EXAD). These funds are akin to trust monies as they are paid in circumstances where they are never funds for the seller but necessary fees for the legal transaction involved – the transfer of title in the motor vehicle to the purchaser under appropriate legislation clearly known to the buyer and the seller. The seller as a motor dealer would have been well aware of the legal responsibilities and nature of such transfer fees and stamp duties.
16. The actions have caused a financial detriment to the two Government Departments involved and potentially caused a lack of public confidence in the industry and the professional standing of other parties in the industry.
17. However, Mr Bazvand has no previous criminal offences and no previous offences with Fair Trading. He has been in the motor vehicle industry for 20 years up until now without a blemish on his record. Mr Bazvand and his wife have been declared bankrupt as a result of these circumstances.
18. In mitigation Mr Bazvand did co-operate with the Department investigation and did not finally contest the charges.
PENALTY
19. 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.
20. The second reference by The Chief Executive is to the matter of Susan Hopper [2008] CCT PD 008-08. In that matter Ms Hopper was director, shareholder and controller of a company which held an auctioneer’s licence. Ms Hopper held a principal auctioneer’s licence. The Tribunal in its reasons[3] stated
[3] At paragraph 16
“It is not the function of this Tribunal in its disciplinary jurisdiction to punish erring licencees, or to fill gaps left by non-prosecution of criminal conduct. The main objective of making orders in this jurisdiction is the protection of the public form future damage by former licensees who have been shown to be untrustworthy.
19. In this matter, Ms Hopper’s license had expired and she had not sought to renew it. Ms Hopper was an undischarged bankrupt. The Tribunal found that a further fine would not serve any useful purpose as either a deterrent or a mark of disapproval of the respondent’s conduct.
DETERMINATION SOUGHT
20. The Chief Executive Officer seeks that both Mascotbury Pty Ltd (EXAD) and Mr Bazvand be permanently disqualified from holding a license or registration certificate under the PAMDA Act and that Mr Bazvand be permanently disqualified from being an Executive Officer of a corporation that holds such a license.
CONCLUSION
21. When considering the comparative penalties, the Cornwall matter involved a positive action by the respondent to remove trust funds on five occasions. There does not appear to be a positive action by Mr Bazvand to remove funds but rather, the non-payment appears to have arisen because of a dispute with a third party financier. Account must however be taken of the size of the amount not paid to the proper authorities as nearly three times the monies owing in the Cornwall decision. In the Cornwall matter the funds were repaid. In this matter there are little prospects of that occurring.
22. The fact that Mr Bazvand had been in the industry for such a long time means that he should have been well aware of his obligations to ensure transfer fees and stamp duty were paid on all his transactions and the fact that the amount got so high and the non-payments complained of cover so many vehicles over such a long period of time is a concern to this Tribunal.
23. The Tribunal is satisfied that the contraventions are sufficiently serious that the first respondent should be permanently disqualified from holding a license or registration certificate under the Act.
24. The Tribunal further considers that the contraventions are sufficiently serious that the second respondent should be disqualified from holding a license or registration certificate and from being an Executive Officer of a corporation that holds a license under the Act for a considerable period although not permanently disqualified. This is because on balance, there are some positive mitigation circumstances for Mr Bazvand, particularly it being his first offence, his co-operation in the investigation process and his lack of a positive step to remove funds.
25. However balanced against this is the size of the non-payment, Mr Bazvand’s long involvement in the industry (meaning that he should be aware of his obligations) and the limited chance of the monies being repaid (meaning that there is a likely claim on the PAMDA fund). Having weighed up these considerations, it is the decision of the Tribunal that Mr Bazvand will be disqualified from holding a license or registration certificate and from being an Executive Officer of a corporation that holds a license under the Act for a period of 10 years.
26. Mascotbury Pty Ltd is in receivership and Mr Bazvand and his wife have been declared bankrupt. The Tribunal finds that that protection of the public is satisfied by these orders and in the circumstances of this matter it was appropriate that the applicant sought no other orders.
ORDERS
The formal orders of the Tribunal will be:
4) That Mascotbury Pty Ltd (EXAD) is permanently disqualified from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000;
5) That Dean Bazvand aka Djalaladdin Bazvand is disqualified for a period of ten years from holding a license or registration certificate under the Property Agents and Motor Dealers Act 2000;
6) That Dean Bazvand aka Djalaladdin Bazvand is disqualified for a period of 10 years from being an Executive Officer of a corporation that holds a license or registration certificate under the Property Agents and Motor Dealers Act 2000.
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