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Department of Justice and Attorney-General – Office of Fair Trading v Noosa Resort Management Pty Ltd and Ors

 

[2020] QCAT 277

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Department of Justice and Attorney-General – Office of Fair Trading v Noosa Resort Management Pty Ltd and Ors [2020] QCAT 277

PARTIES:

Department of Justice and Attorney-General – Office of Fair Trading

(applicant)

 

v

 

NOOSA RESORT management Pty Ltd

JENNIFER MAY CARR

PETER CHARLES BUTT

(respondents)

APPLICATION NO/S:

OCR254-18

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

8 July 2020

HEARING DATE:

23 March 2020

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

  1. The following grounds for taking disciplinary action exist against each of Noosa Resort Management Pty Ltd, Jennifer May Carr and Peter Charles Butt:
    1. (a)
      contravention of the Agents Financial Administration Act 2014 (Qld); and
    2. (b)
      failure to ensure that an employed real estate salesperson or employee under the licensee’s supervision is properly supervised in the performance of that person’s duties.
  2. The following ground also exists for taking disciplinary action against Noosa Resort Management Pty Ltd:
    1. (a)
      contravention of the Property Occupations Act 2014 (Qld).

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – where employee of real estate agent made false representation to prospective guests – where agent did not account to owner for movement of deposits – where agent provided incorrect version of document in legal proceeding and in investigation – whether disciplinary grounds established – whether directors responsible for actions of corporate licensee – whether disciplinary proceeding can be based for both specific and general grounds on same conduct

Agents Financial Administration Act 2014 (Qld), s 23

Property Occupations Act 2014 (Qld), s 172(1), s 212(1), s 221(1)

Legal Services Commissioner v Singh [2012] QCAT 181

Manwin v Board of Professional Engineers of Queensland [2008] QDC 204

APPEARANCES &

REPRESENTATION:

 

Applicant:

R Vize, in-house counsel

Respondent:

A Collins instructed by Garland Waddington Solicitors and Notary

REASONS FOR DECISION

Introduction

  1. [1]
    This is a disciplinary referral brought by the applicant (‘Office of Fair Trading’) against the respondents under the Property Occupations Act 2014 (Qld) (‘Property Occupations Act’). The respondents are Noosa Resort Management Pty Ltd (‘NRM Pty Ltd’), which is a licensed real estate corporation, and Ms Carr and Mr Butt who are the shareholders in, and directors of, NRM Pty Ltd. Ms Carr and Mr Butt hold real estate agent principal licences.
  2. [2]
    The referral arises out of how certain holiday letting bookings were handled for Jebral Nominees Pty Ltd, which owns a house at Noosa. In short, Office of Fair Trading contends that the respondents should be disciplined because an employee of NRM Pty Ltd, after Jebral Nominees Pty Ltd terminated the letting appointment, falsely represented to prospective guests that the house had become unavailable on the dates booked. Further, in the course of a Tribunal proceeding and a disciplinary investigation, NRM Pty Ltd provided an incorrect version of its letting terms and conditions. Further, NRM Pty Ltd did not, in the view of the Office of Fair Trading, adequately account to Jebral Nominees Pty Ltd for the movements of the deposits that had been paid by the prospective guests.
  3. [3]
    The present decision concerns whether disciplinary grounds exist. The question of disciplinary sanction will be dealt with later.

The documents before the Tribunal

  1. [4]
    The parties have filed an agreed statement of facts.[1] It was clarified at the hearing that the documents that the Tribunal should take into account in determining whether disciplinary grounds are established are the following:
    1. (a)
      the disciplinary referral filed on 24 September 2018 together with the affidavit of Amanda Morris dated 13 September 2018 (exhibit 1); and
    2. (b)
      the agreed statement of facts filed on 21 May 2019 together with particular documents (identified, for example, as OFT7) referred to in that statement (exhibit 2).
  1. [5]
    Ms Morris’s affidavit has an annexure A setting out the disciplinary grounds alleged, and an annexure B setting out particulars. However, the parties say that the facts to be used are those in the agreed statement of facts rather than those alleged in annexure B, and that annexure B is relevant only as part of the documentary record.
  2. [6]
    Written submissions were filed in advance of the hearing. Office of Fair Trading’s, headed ‘Submissions on Penalty’ were filed on 23 May 2019, though they were not confined to issues of penalty. The respondents’ submissions were filed on 12 August 2019.

Facts

  1. [7]
    The following is a summary of matters I consider pertinent, and which I accept, drawn from the agreed statement of facts.

Letting of the house belonging to Jebral Nominees Pty Ltd

  1. [8]
    NRM Pty Ltd had been the letting agent for the house for many years. It was appointed by Jebral Nominees Pty Ltd in 2008, and then under a new appointment on 29 June 2015. Under the property management agreement:
    1. (a)
      for the commission and other fees payable by Jebral Nominees Pty Ltd, NRM Pty Ltd agreed to let and/or manage the property for Jebral Nominees Pty Ltd;
    2. (b)
      NRM Pty Ltd was authorised to accept bookings from prospective guests up to 12 months in advance;
    3. (c)
      NRM Pty Ltd could set the terms and conditions of rental;
    4. (d)
      Jebral Nominees Pty Ltd authorised NRM Pty Ltd to demand and collect rent, bond money, key deposits and other monies, if any, payable to Jebral Nominees Pty Ltd from a guest as and when the guest was obliged to pay those monies;
    5. (e)
      if a booking was cancelled by a prospective guest but the property was re-let, 12% of one week’s rent was to be paid to NRM Pty Ltd and the balance of the deposit was to be paid back to the prospective guest; and
    6. (f)
      if a booking was cancelled by a prospective guest and the property was not re-let, the prospective guest’s deposit was forfeited, 12% of one week’s rent was to be paid to NRM Pty Ltd, and the balance of the deposit was to be paid to Jebral Nominees Pty Ltd.
  1. [9]
    NRM Pty Ltd displayed on its website a set of terms and conditions for the letting of properties. Under those terms and conditions:
    1. (a)
      a prospective guest was required to pay a holding deposit when booking the property, to confirm their reservation, and a balance deposit by a later date; and
    2. (b)
      if a prospective guest cancelled their reservation with notice of 30 or more days before the arrival date, 20% of the deposit and an administration fee of $330 would be forfeited by the prospective guest.
  2. [10]
    I infer from the outline of the terms and conditions in the agreed statement of facts that there were different and more onerous consequences for the prospective guest in the event of a later cancellation.
  3. [11]
    ‘Advance payments’ – such as advance booking deposits to secure occupancy – were held in NRM Pty Ltd’s trust account and ‘accounted for to that prospective Guest, not to the Owner of the property’.[2]
  4. [12]
    The trust account had many ledgers. Ledgers were held for prospective guests and owners. A guest ledger was kept for each guest reservation.
  5. [13]
    A reservation of the property took effect when the guest registered and took up occupancy. At that point, NRM Pty Ltd would transfer the money from the guest ledger to the owner ledger. This was also the first point at which any entry was made in the accounts in respect of the owner for the booking.
  6. [14]
    At the beginning of each month, NRM Pty Ltd would send each owner a statement of the income and expenses for the previous month and a ‘unit booking list’ showing prospective guests and the dates for which they had booked. The unit booking list for Jebral Nominees Pty Ltd as at 1 July 2015 showed, relevantly, advance bookings by four prospective guests, whom I shall call prospective guests T, V, M and S.  NRM Pty Ltd had received advance booking deposits from those persons. It held those sums in its trust account, and it had issued a receipt to each of those persons.
  1. [15]
    On 7 July 2015 NRM Pty Ltd sent emails to those four persons notifying them of construction work in the area of the house.
  2. [16]
    On 17 July 2015 Jebral Nominees Pty Ltd gave notice to NRM Pty Ltd that it was terminating the appointment of NRM Pty Ltd as its letting agent, effective from 16 August 2015. Such termination on notice was allowed under the contract. Jebral Nominees Pty Ltd’s email included the following comments:

Another Agent will be appointed to take over the property management shortly. It is expected [NRM Pty Ltd] will comply with its obligation as a fiduciary to hold the existing bookings for our benefit. Any Agent that we appoint will comply with industry practice regarding commission sharing.

  1. [17]
    The respondents do not agree that there was a fiduciary obligation in the form asserted in the email.
  2. [18]
    On 19 and 20 July 2015, a salesperson employed by NRM Pty Ltd contacted the four prospective guests and told them, in effect, that the house was no longer available for letting. This was false information. The salesperson gave the prospective guests a list of other available properties managed by NRM Pty Ltd, so that they could consider booking alternative accommodation.
  3. [19]
    The salesperson was not instructed by the respondents to make these contacts, and the respondents were not aware of the contacts.
  4. [20]
    Prospective guests V and M decided to cancel their bookings, and their deposits were refunded by NRM Pty Ltd. Prospective guests T and S decided to switch their bookings to other properties managed by NRM Pty Ltd. New trust account receipts were issued for T and S identifying the new properties. In the case of S, her decision to switch bookings occurred on 5 August 2015, which was a few weeks after the initial contact by the salesperson. It occurred after NRM Pty Ltd had told S of the identity of the new letting agent for Jebral Nominees Pty Ltd’s house. (It is implicit that NRM Pty Ltd must have told S that the house would be available on the booked dates, under a new agent, despite the earlier advice to the contrary that the property would not be available).
  5. [21]
    Jebral Nominees Pty Ltd ‘was not notified of the movement of the deposits paid by [prospective guests T, V, M and S] to [NRM Pty Ltd] in respect of their prospective bookings of the property’.[3] The prospective guests had authorised those movements. 

Subsequent Tribunal proceeding and investigation

  1. [22]
    The letting terms and conditions displayed on NRM Pty Ltd’s website have changed from time to time. The version posted in or about October 2015 included a term to the effect that NRM Pty Ltd could try to relocate a guest in the event of noise from nearby construction. The earlier version, in force at the time of the events of July and August 2015, did not contain such a term.
  2. [23]
    There was a QCAT proceeding commenced by Jebral Nominees Pty Ltd in November 2015, involving prospective guest T’s matter. NRM Pty Ltd was a party. On 4 March 2016 NRM Pty Ltd filed a statement by Ms Carr in which she said that prospective guest T’s booking was changed at his request because of the construction activity that had been advised in the 7 July 2015 email. Ms Carr’s statement exhibited the version of the terms and conditions that contained the relocation provision. This was the wrong version, as it did not come into force until later in 2015.
  3. [24]
    As at 4 March 2016, Ms Carr’s honest belief was that the booking had been changed because of the construction issue. She was not yet aware of the contact made by the salesperson advising prospective guest T that the property would not be available. It was due to a lack of care on her part that the wrong version of the terms and conditions was supplied. It was not intentional. On 12 April 2016 a further statement by Ms Carr was filed in the Tribunal proceeding, and this exhibited the correct version.
  4. [25]
    In November 2017, in the course of the disciplinary investigation, Office of Fair Trading required NRM Pty Ltd to provide various documents including all versions of the terms and conditions that applied between November 2014 and August 2015. On 30 November 2017, NRM Pty Ltd supplied the later version of the terms and conditions: the one that took effect from about October 2015. This happened because Ms Carr had instructed one of the senior administrative staff of NRM Pty Ltd to compile the required documents. Ms Carr asked the staff member to provide the version of the terms and conditions that was effective in 2015. This was not sufficiently precise, and the staff member obtained the wrong version. The provision of the wrong version in November 2017 was not intentional. Rather, it was an honest mistake resulting from a lack of attention to detail by Ms Carr.

Responsibility of respondents

The Respondents accept that the phone calls [to prospective guests] and the provision of the incorrect version of the Terms and Conditions, occurred as a result of a lack of supervision and direction of [the salesperson] and the other staff employed by [NRM Pty Ltd] …[4]

The Respondents accept the information provided to [the prospective guests] as to the availability of the property was false and the property was always available for rent at all relevant times. It is accepted that there was no intention on the part of the Respondents to mislead.[5]

Overview of disciplinary grounds alleged

  1. [26]
    The Property Occupations Act provides for the licensing and regulation of persons working in the property industry. Grounds for starting a disciplinary proceeding against a licensee are set out in section 172(1). Of relevance for the current proceeding, the following are grounds:
    1. (a)
      the licensee has contravened or breached the Property Occupations Act;[6]
    2. (b)
      the licensee has contravened or breached the Agents Financial Administration Act 2014 (Qld) (‘Agents Financial Administration Act’);[7]
    3. (c)
      the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way;[8]
    4. (d)
      the licensee has failed to ensure the licensee’s employed real estate salespersons, or employees under the licensee’s supervision, are properly supervised in the performance of their duties or that they comply with the Property Occupations Act.[9]
  2. [27]
    Office of Fair Trading in its referral alleged five disciplinary grounds: the same five grounds against all three respondents. However, by the time of the hearing, it had withdrawn ground 2. That leaves disciplinary grounds 1, 3, 4 and 5.
  3. [28]
    There is some measure of agreement between the parties about whether particular grounds are established. However, it emerged during the hearing that there is more divergence than was apparent from the written submissions on whether certain grounds are established against all respondents or only one, and on whether there is objectionable duplication between grounds.

Alleged contraventions of the Property Occupations Act (disciplinary ground 1)

  1. [29]
    Office of Fair Trading alleges contraventions of two provisions in the Property Occupations Act. One is section 212(1) which, relevantly, provides that a licensee must not represent to someone else anything that is false relating to the letting of real property. The other is section 221(1) which, relevantly, provides that a person must not, for the Property Occupations Act, give an official a document containing information that the person knows is false or misleading in a material particular.
  2. [30]
    The referral (as subsequently refined in the agreed statement of facts and in submissions) contends that there have been contraventions of the Property Occupations Act:
    1. (a)
      the respondents contravened section 212(1) by making false representations to the prospective guests that the house was no longer available for letting; and
    2. (b)
      the respondents breached section 221(1) by providing the wrong version of the letting terms and conditions, knowing that version to be false and misleading in a material particular.

The false representation allegation, relating to the availability of the property; section 212(1)

  1. [31]
    It is undisputed, and I accept, that NRM Pty Ltd contravened section 212(1) of the Property Occupations Act. The false representations were made by a salesperson employed by NRM Pty Ltd. A company can act only through its human agents. Although the salesperson was not acting on instructions from the company, she was acting within the scope of her agency as an employee when she made the false representations. NRM Pty Ltd is responsible for her actions in making the false representations.
  2. [32]
    The parties diverge on whether Ms Carr and Mr Butt also contravened section 212(1) through the actions of the salesperson. The false representations were made without the knowledge of Ms Carr or Mr Butt. In the respondents’ written submissions, it was said that ‘the Respondents accept that the errors which manifest themselves in the junior employee are their responsibility’ (emphasis added).[10] However, in the course of oral submissions by Mr Collins for the respondents, it emerged that the ultimate submission was that Ms Carr and Mr Butt were not liable for the actions of the salesperson, who was the employee and agent not of Ms Carr or Mr Butt but of the company, which is a separate legal entity.  Mr Collins submitted that responsibility would be different if Ms Carr or Mr Butt had instructed the salesperson to give the false information: in that situation, the individual would have primary responsibility.
  3. [33]
    Mr Vize for Office of Fair Trading submits that Ms Carr and Mr Butt as the directors of, and shareholders in, NRM Pty Ltd, are, in a disciplinary context, responsible for the company’s actions.
  4. [34]
    In my view, persons in the position of Ms Carr and Mr Butt could conceivably be regarded as themselves having contravened section 212(1) in  a number of ways.  They could be liable as parties to the salesperson’s contravention if, for example, they encouraged the salesperson to commit the offence. They could be liable as the directors of the company that employed the salesperson, by way of vicarious liability, though there would be limits to the extent of such liability. Arguably, in a disciplinary context, given that they are themselves licensees, they may have an enhanced responsibility (relative to directors generally) to ensure that their business is conducted lawfully, which cannot be alienated by their choice to run the business by way of a corporate structure.
  5. [35]
    Ms Carr and Mr Butt were not parties to the offence in terms of encouraging it, for example. As to whether they bear vicarious liability, I note that it has not been suggested that there is any particular legislative provision that applies. Nor has any precise legal principle been articulated which would make them liable as directors or shareholders. The actions of the salesperson were isolated. They were not done under some system put in place by the directors designed to achieve such a result. In these circumstances, it is not apparent why the directors would be considered to have personally contravened section 212(1).
  6. [36]
    Accordingly, I find that Ms Carr and Mr Butt did not contravene section 212(1).
  7. [37]
    Before leaving this topic, I note that the agreed statement of facts includes a comment that there was no intention on the part of the respondents to mislead the prospective guests about the availability of the property. While I accept that in relation to the respondents’ intentions, it is apparent that it must have been the intention of the salesperson to mislead the prospective guests.

The false or misleading document allegation, relating to the terms and conditions; section 221(1)

  1. [38]
    The referral, the agreed statement of facts, and Office of Fair Trading’s submissions encompass the provision of the wrong version of the terms and conditions to the Tribunal in 2016, as well as to the investigator in 2017. However, section 221(1) of the Property Occupations Act deals with the provision of a document to an ‘official’, which is defined as the chief executive or a public service employee.[11] This definition does not encompass the Tribunal, and so I am not satisfied that there was any contravention of section 221(1) in relation to the documents provided to the Tribunal.
  2. [39]
    It is undisputed that the investigator to whom the terms and conditions were provided in November 2017 was an ‘official’. Section 221(1) involves the giving of a document which the person knows is false or misleading in a material particular. Such knowledge would have to be present at the time of giving the document. The agreed facts are to the effect that Ms Carr was involved in arranging for the provision of the document but she was unaware that it was the wrong version. There is no evidence that Mr Butt was involved, and in oral argument Mr Vize said the allegation of a contravention of section 221(1) is not pressed against Mr Butt. There is no evidence that either Ms Carr or Mr Butt gave the document knowing it to be false. I therefore find that they did not contravene section 221(1).
  3. [40]
    The document was given on behalf of NRM Pty Ltd, so the question then arises whether the company gave the document knowing it was false. It could be said that it was within the broad corporate knowledge of NRM Pty Ltd that the terms and conditions provided were not those in force at the relevant time. However, section 221(1) would, in my view, require active knowledge by someone in the company that the document being supplied is false. There is no evidence of such knowledge by anyone in the company. Accordingly, I am not satisfied that NRM Pty Ltd contravened section 221(1). 

Conclusion on this disciplinary ground

  1. [41]
    A disciplinary ground is established against NRM Pty Ltd in relation to the contravention of section 212(1) of the Property Occupations Act.
  2. [42]
    The other aspects of alleged disciplinary ground 1 are not established.  

Alleged contravention of Agents Financial Administration Act (disciplinary ground 3)

  1. [43]
    Office of Fair Trading alleges a contravention, by all three respondents, of section 23 of the Agents Financial Administration Act:

23 Accounting to clients

  1. An agent must account as required under this section to a client who appoints the agent to perform an activity, for all amounts received for a transaction, including an amount mentioned in subsection (2)(c).

Maximum penalty—200 penalty units or 2 years imprisonment.

  1. The account must be in writing and state—
  1. the amounts received for the transaction; and
  2. how the amounts were or are to be paid out; and
  3. the source and the amount of any rebate, discount, commission or benefit the agent received—
  1. for any expenses the agent incurred for the client in connection with the performance of a service; or
  2. for referring the client to someone else for services relating to the transaction.
  1. The agent must give the client the account—
  1. if the client asks, in writing, for the account—within 14 days after receiving the request; or
  2. if the client has not asked, in writing, for the account—within 42 days after the transaction is finalised.
  1. [44]
    Office of Fair Trading submits that by virtue of section 23, NRM Pty Ltd should have, but did not, give a written statement to Jebral Nominees Pty Ltd about how the deposits of the four prospective guests were paid out, variously by way of refund or transfer to a different booking.
  2. [45]
    Office of Fair Trading submits that each deposit was held in the trust account on behalf of both the prospective guest and Jebral Nominees Pty Ltd. Mr Collins, for the respondents, submits that Office of Fair Trading’s submission is not founded on any agreed fact, and that each deposit was held on trust for the prospective guest until such time, if any, as it became payable to Jebral Nominees Pty Ltd under the contractual arrangements.
  3. [46]
    Mr Collins submits that the accounts prepared by NRM Pty Ltd were perfectly proper; that there is no suggestion in the agreed statement of facts that the accounts were improper; and that it would be absurd to impose a duty on an agent to account to an owner for money to which the owner was not entitled. Mr Collins emphasises that the receipts for the deposits were issued to the prospective guests, not to Jebral Nominees Pty Ltd.
  4. [47]
    In my view, there is an obvious practical reason why receipts were issued to the prospective guests: the receipts confirmed payment for the payers. However, that does not determine whether the accounting obligation of the agent to the owner under section 23 of the Agents Financial Administration Act was met. Further, the agreed statement of facts describes the accounting practices used by NRM Pty Ltd. The agreed statement could not, and does not purport to, contain any conclusion as to whether section 23 was complied with.
  5. [48]
    Mr Collins’ criticism of the submission made by Office of Fair Trading that each deposit was held for both the prospective guest and the owner, namely that the submission is not based on any agreed fact, is misplaced. Whether property is impressed with a trust is a matter of law rather than fact.
  6. [49]
    Ultimately, in my view, whether the correct legal analysis is that each deposit was held on trust for the prospective guest, on trust for Jebral Nominees Pty Ltd, on trust for both, or in some other state pursuant to statutory requirements in the Agents Financial Administration Act, is immaterial. Section 23 would apply in any of those scenarios.
  7. [50]
    Jebral Nominees Pty Ltd had appointed NRM Pty Ltd to perform the activity of letting out its property.
  8. [51]
    It is not clear from the agreed statement of facts whether the parties consider that a contract was formed, or had already been formed, between a prospective guest and Jebral Nominees Pty Ltd as at the time of the payment of the deposit. I would have thought that a contract was formed upon payment of the deposit, if not before, but it is difficult to be certain when I am confined to an agreed statement of facts which condenses the relevant facts somewhat. Regardless, I find that there was either a contract or a proposed contract as at the time the deposit was paid. Either way, there was a transaction being conducted by NRM Pty Ltd as agent for Jebral Nominees Pty Ltd. The transaction was the letting or proposed letting of the house to the prospective guest. NRM Pty Ltd was receiving the deposit for that transaction. Upon receipt of the deposit, and for a period afterwards, the ultimate fate of the deposit remained to be determined. It may in due course have become repayable wholly or partly to the prospective guest; it may have been forfeited in the event of late cancellation; it may have been transferred to a different ledger in the trust account for a letting contract with another owner; it may have been treated as part of the rent for Jebral Nominees Pty Ltd when the guest took up occupancy; and so on. Regardless, the deposit was an amount received for the transaction. NRM Pty Ltd was required, by section 23 of the Agents Financial Administration Act, to account to Jebral Nominees Pty Ltd, in writing, for how the deposit was paid out. NRM Pty Ltd failed to do so. It therefore contravened section 23.
  9. [52]
    I do not consider there is anything absurd in interpreting section 23 as imposing such an obligation, even if the deposit was held on trust solely for the prospective guest. On the contrary, there is every reason why an owner would legitimately expect to be informed about what its agent does with money received for bookings.
  10. [53]
    I consider that Ms Carr and Mr Butt also contravened section 23, as parties to the contravention, by enabling and aiding in the contravention by NRM Pty Ltd. The accounting practices were a systemic matter for which Ms Carr and Mr Butt were responsible as directors of the company. Unlike the company’s contravention of section 212(1) of the Property Occupations Act, which happened because of the unauthorised and isolated conduct of a salesperson, the contravention of section 23 of the Agents Financial Administration Act was the result of how Ms Carr and Mr Butt operated the business. Regardless of whether Ms Carr and Mr Butt believed the accounting system was compliant, section 23 was contravened.
  11. [54]
    The disciplinary ground of contravening the Agents Financial Administration Act is established against all three respondents.   

Alleged failure in supervision (disciplinary ground 5)

  1. [55]
    As originally framed, this allegation was:

… the licensee has breached a prescribed conduct provision failed to ensure the licensee’s employed licensees or real estate sales persons, or employees under the licensee’s supervision are properly supervised in the performance of their duties; or comply with the Act.

  1. [56]
    This was amended in the course of the hearing by the deletion of the words ‘prescribed conduct provision’, as Office of Fair Trading acknowledged that those words do not appear in the applicable provision.[12]
  2. [57]
    Having regard to this ground as originally particularised, and to the written submissions, it is apparent that this ground relates to the conduct of the salesperson who falsely represented that the house would be unavailable. She is referred to as a real estate salesperson in the agreed statement of facts, but as an employee in the written submissions. ‘Real estate salesperson’ has a specific meaning in the Property Occupations Act.[13] Whether she met that definition is not apparent from the agreed statement of facts, but the matter does not appear to be of consequence as it is common ground that she was an employee.
  3. [58]
    Office of Fair Trading submits that the salesperson should have been instructed to inform the prospective guests that the property was still available but under a new agency yet to be notified; that the note keeping system of NRM Pty Ltd did not reveal what was communicated to the prospective guests; and that NRM Pty Ltd failed to ensure that the salesperson provided truthful information to the prospective guests.
  4. [59]
    The respondents say that the implementation of more rigid systems may have prevented the situation which arose. They take issue with the idea that an employer can ensure that an event occurs, though I note that the disciplinary ground can be made out if a licensee fails to ensure that an employee under the licensee’s supervision complies with the Act.[14]
  5. [60]
    Mr Collins for the respondents submits that disciplinary ground 5 is established against NRM Pty Ltd only, and not against Ms Carr or Mr Butt, on the basis that the salesperson was the employee of the company.
  6. [61]
    However, a systemic issue is involved here. As the directors of NRM Pty Ltd, Ms Carr and Mr Butt are responsible for ensuring that it has systems in place to achieve adequate performance by staff including compliance with legislative requirements. Accordingly, I am satisfied that this disciplinary ground is established against all three respondents.

Alleged unprofessionalism (disciplinary ground 4)

  1. [62]
    The Property Occupations Act speaks of acting in an unprofessional way,[15] but for brevity I will refer to this ground as unprofessionalism.
  2. [63]
    Office of Fair Trading ‘relies on the totality of the acts and omissions of the respondents as contained in the agreed facts to establish the respondents have acted unprofessionally’.[16]
  3. [64]
    Office of Fair Trading also argues in its written submissions, though not specifically in relation to ground 4, that there was a lack of professionalism on the part of the respondents in not settling the earlier Tribunal proceeding, involving prospective guest T, much sooner. Office of Fair Trading submits that the respondents had information about the false representation to prospective guest V such that they should have made enquiries with staff, discovered the false representation to prospective guest T, and, acting professionally, settled that matter considerably earlier.
  4. [65]
    There are some agreed facts relevant to this submission, including one about an email which Jebral Nominees Pty Ltd sent to Ms Carr in August 2015 about the false representation to prospective guest V. There are also some agreed facts about the conduct of the earlier Tribunal proceeding, including NRM Pty Ltd’s provision of the wrong version of the letting terms and conditions which harmonised with its argument that prospective guest T had relocated because of construction activity. However, I do not consider that the agreed facts address the question, or address it squarely in any event, of whether NRM Pty Ltd unreasonably delayed in settling that proceeding. Accordingly, I do consider that it is open on the evidence to accept Office of Fair Trading’s submission that there was a lack of professionalism involved in relation to the time it took for that proceeding to settle.
  5. [66]
    In my view, the relevant acts and omissions in the agreed statement of facts which tend to support a finding of unprofessionalism are, in summary:
    1. (a)
      the making of false representations by the salesperson to the prospective guests about the availability of the property;
    2. (b)
      failure to adequately supervise that salesperson;
    3. (c)
      failure to account to Jebral Nominees Pty Ltd for the movement of the deposits;
    4. (d)
      the provision of the wrong version of the letting terms and conditions to the Tribunal in March 2016;
    5. (e)
      the provision of the wrong version of the letting terms and conditions to the Office of Fair Trading’s investigator in November 2017; and
    6. (f)
      failure to adequately supervise the administrative staff member who extracted that wrong version.
  6. [67]
    It is noteworthy, though, that the first three of these six matters serve to establish other disciplinary grounds. The fourth and fifth were relied on by Office of Fair Trading in support of the ground of contravening the Property Occupations Act, but I concluded that they did not support that ground. The sixth matter could have been relied on in respect of the supervision ground, but it was not.
  7. [68]
    Mr Collins for the respondents submits that it would be an abuse of process for Office of Fair Trading to press disciplinary grounds for the same conduct under both a specific ground (such as failure to account) and a general ground (relevantly, unprofessionalism). Office of Fair Trading should, Mr Collins submits, either press the specific ground or the general ground (with particulars of the conduct relied upon), but not both. On this basis, Mr Collins submits that the unprofessionalism ground cannot be sustained. Mr Vize, for Office of Fair Trading, submits that it is open to the Tribunal to find both specific and general grounds in relation to the same or overlapping conduct, while acknowledging that there should be no additional sanction to the extent that the conduct overlaps. Neither counsel was able to cite any decided cases on this issue.
  8. [69]
    In my view, to take a hypothetical example, if the Tribunal had dealt with a disciplinary proceeding in relation to specific grounds, and Office of Fair Trading later commenced a disciplinary proceeding alleging unprofessionalism relating to the same conduct, there would be a compelling argument for the later proceeding to be struck out as an abuse of process.[17] The later proceeding would essentially be a duplication of the earlier proceeding.[18]
  9. [70]
    It may not be an abuse of process for Office of Fair Trading to refer both specific grounds and a general ground of unprofessionalism, relating to the same conduct, in a single proceeding such as the present. However, in fairness to the respondent in such a referral, the specific grounds on the one hand, and the general ground on the other, should be treated as alternatives. Similarly, where there is overlapping conduct between a specific ground and a general ground, there should be not be adverse findings against a respondent on both grounds in respect of the same conduct.
  10. [71]
    Accordingly, it is appropriate to take into account under the present allegation of unprofessionalism only the last three of the six matters listed in paragraph 66 above: the provision of a wrong version of the letting terms and conditions on two occasions, and inadequate supervision of the staff member who extracted the wrong version on the second occasion.
  11. [72]
    It has been observed that merely making a mistake will not constitute unsatisfactory professional conduct.[19] On the other hand, no doubt, repeated or frequent mistakes, particularly mistakes with substantial consequences, could evidence unprofessionalism.
  12. [73]
    In the present case, if the agreed facts were that the respondents had provided the wrong version of the terms and conditions with intent to mislead, and/or that there was a pattern of carelessness in the supervision of the administrative staff member, unprofessionalism might well be established. On the agreed facts, however, I consider that the conduct in question consisted of isolated mistakes, not amounting to a lack of professionalism.
  13. [74]
    I am not satisfied that the disciplinary ground of unprofessionalism is established in respect of any of the respondents.

Conclusion

  1. [75]
    In respect of the referred disciplinary grounds that have been established, I will make orders that a ground exists for taking disciplinary action. I will separately issue directions for the parties to make submissions on sanction.

Footnotes

[1]  Agreed statement of facts filed 21 May 2019.

[2]  Agreed statement of facts, [63].

[3]  Agreed statement of facts, [74].

[4]  Agreed statement of facts, [54].

[5]  Ibid, [55].

[6] Property Occupations Act, s 172(1)(b)(i).

[7]  Ibid, s 172(1)(b)(ii).

[8]  Ibid, s 172(1)(g)(iii).

[9]  Ibid, s 172(1)(g)(iv).

[10]  Respondents’ written submissions, [7].

[11] Property Occupations Act, Schedule 2 (definition of ‘official’).

[12] Property Occupations Act, s 172(1)(g)(iv).

[13]  Ibid, Schedule 2 (definition of ‘real estate salesperson’).

[14]  Ibid, s 172(1)(g)(iv)(B).

[15] Property Occupations Act, s 172(1)(g)(iii).

[16]  Office of Fair Trading’s written submissions, [38].

[17] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

[18]  This type of abuse of process was discussed in Legal Services Commissioner v Singh [2012] QCAT 181, [15].

[19] Manwin v Board of Professional Engineers of Queensland [2008] QDC 204, [19].

Close

Editorial Notes

  • Published Case Name:

    Department of Justice and Attorney-General – Office of Fair Trading v Noosa Resort Management Pty Ltd and Ors

  • Shortened Case Name:

    Department of Justice and Attorney-General – Office of Fair Trading v Noosa Resort Management Pty Ltd and Ors

  • MNC:

    [2020] QCAT 277

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    08 Jul 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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