The Real Estate and Business Agents Supervisory Board v Rosewell Corporation Pty Ltd (Administrator Appointed)

[2004] WADC 81

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   THE REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD -v- ROSEWELL CORPORATION PTY LTD (ADMINISTRATOR APPOINTED) [2004] WADC 81

CORAM:   WILLIAMS DCJ

HEARD:   8 APRIL 2004

DELIVERED          :   Delivered Extemporaneously on 8 APRIL 2004 typed from tape and edited by Trial Judge

FILE NO/S:   CIVO 61 of 2004

BETWEEN:   THE REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD

Applicant

AND

ROSEWELL CORPORATION PTY LTD (ADMINISTRATOR APPOINTED) (ACN 088 826 180)
Respondent

Catchwords:

Real Estate and Business Agents Act 1978 (WA) - Application under s 97 that order suspending respondent from carrying on business as a real estate agent be discharged

Legislation:

Real Estate and Business Agents Act 1978

Result:

Summons dismissed

Representation:

Counsel:

Applicant:     Ms F Vernon

Respondent:     Mr K M Penkin

Solicitors:

Applicant:     Tottle Partners

Respondent:     Kevin Penkin & Associates

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

1. WILLIAMS DCJ:  This is an application by the respondent for an order under s 97 of The Real Estate and Business Agents Act 1978 (the Act).  That section provides that an agent whose account is the subject of an order made under the provisions of s 92 or s 93 of the Act may apply to the District Court to discharge or vary the order and to award such costs upon the application as it thinks fit and the District Court is empowered to discharge or vary the order and to make such other orders as it thinks fit.

2. On 30 March 2004 I made various orders under s 93 of the Act.  One of those orders was that the respondent be suspended from carrying on the business of a real estate and business agent until further order of the court.  The respondent now seeks to discharge the order that I made suspending the respondent from carrying on the business of a real estate and business agent until further order of the court.

3. In support of the application the respondent has filed the affidavit of Mervyn Jonathan Kitay, sworn 8 April 2004.  That affidavit indicates that on 31 March 2004 and since the proceedings were last before me, he was appointed an administrator of the respondent pursuant to the provisions of Part 5.3A of the Corporations Act 2000.

4. As part of that affidavit the deponent has stated that the shortfall in the trust account amounts to $119,565.95.  In my view that simply confirms the view that I took last week that the orders that I made were appropriate.

5. In my view the respondent has failed to show good cause why any of the orders should be discharged.  For those reasons the summons is dismissed and there will be an order that the respondent pay the plaintiff's costs of the application, to be taxed.