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The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate[2015] QCAT 307

The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate[2015] QCAT 307

CITATION:

The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307

PARTIES:

The Chief Executive, Department of Justice and Attorney-General

(Applicant)

 

v

 

Teresa Janet Schouten t/as Janet Schouten Real Estate

(Respondent)

APPLICATION NUMBER:

OCR017-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

DELIVERED ON:

3 August 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Teresa Janet Schouten is reprimanded.
  2. Teresa Janet Schouten is disqualified from holding any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000 for a period of 7 years.
  3. Teresa Janet Schouten is prohibited from being an executive officer of a corporation that holds any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000 for a period of 7 years.
  4. Teresa Janet Schouten pay to the Chief Executive, Department of Justice and Attorney-General a fine of $9,900.00 by 5 October 2015.

CATCHWORDS:

REAL ESTATE AGENT – DISCIPLINARY PROCEEDINGS – FALSE EVIDENCE AND IMPROPER DEALING WITH TRUST MONEY -  whether grounds for disciplinary action - where Agent falsified invoices and gave false evidence in two separate Tribunal proceedings – where Agent failed to properly receipt money held on trust - where payments made against Claim Fund because of Agent conduct – where penalty to be imposed – where amounts not significant but dishonest conduct significant - where false evidence struck at administration of justice – where no insight or remorse – where failure to repay - where false evidence in two separate proceedings – where appropriate to impose separate fines for each course of conduct   

Property Agents and Motor Dealers Act 2000, ss 379, 496, 574

Queensland Civil and Administrative Tribunal Act, s 3, 100, 102

Attorney-General v. Times Newspapers Pty Ltd [1974] AC 273

Attorney-General (UK) v. Newspaper Publishing (PLC) [1988] Ch. 333

Chief Executive, Department of Justice and Attorney-General v. Cameo Property Services Pty Ltd and Johnson [2012] QCAT 509

Chief Executive Department of Justice and Attorney-General v. Faraj [2011] QCAT 640

Chief Executive, Department of Justice and Attorney-General v. Grimsey [2015] QCAT 1

Chief Executive, Department of Justice and Attorney-General v. Halmarn Pty Ltd [2014] QCAT 099

Chief Executive, Department of Justice and Attorney-General v. Hiltdeen Pty Ltd (under external administration) and Lloyd [2012] QCAT 430

Chief Executive Department of Justice and Attorney-General v. Hoppner [2014] QCAT 296

Chief Executive, Department of Justice and Attorney-General v. Mikealy Pty Ltd and Chadban [2012] QCAT 428

Chief Executive, Department of Justice and Attorney-General v. My House is Your House Pty Ltd (under external administration) & Carranza [2012] QCAT 326

The Chief Executive, Department of Employment, Economic Development and Innovation v. Schellars [2010] QCAT 477

Chief Executive, Department of Justice and Attorney-General v. Sheppard [2012] QCAT 164

The Chief Executive, Department of Employment, Economic Development and Innovation v. Welburn [2010] QCAT 202

Department of Employment, Economic Development & Innovation v. Baldwin [2012] QCAT 161

Department of Employment, Economic Development & Innovation v. Gold Coast Property Investments & Management Pty Ltd (in liquidation) [2011] QCAT 483

Hall v. Janet Schouten Real Estate [2014] QCATA 213

The Chief Executive, Department of Employment, Economic Development and Innovation v. Welburn [2010] QCAT 202

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

What is this Application about?

  1. [1]
    Ms Janet Schouten is a licensed real estate agent who managed residential properties for rent. The Chief Executive, Department of Justice and Attorney-General has brought disciplinary proceedings for two of those residential tenancies.
  2. [2]
    These disciplinary proceedings arise from Ms Schouten applying for compensation from each tenant in separate hearings before the Tribunal and improperly dealing with trust money. The Chief Executive alleges that Ms Schouten falsified evidence at each Tribunal hearing.[1] 
  3. [3]
    Ms Schouten has been given an opportunity to file material responding to the allegations and request an oral hearing.[2] However, Ms Schouten has not engaged with the Tribunal process, despite the Chief Executive serving her with the application on 3 March 2015.[3]
  4. [4]
    The application therefore now falls to me to determine on the basis of the material filed.

Do proper grounds exist for disciplinary proceedings against Ms Schouten?

  1. [5]
    The Chief Executive has filed a comprehensive brief of evidence with the Tribunal including witness statements, exhibits, photographs, forensic images, hard drive evidence, transcripts of the hearings where Ms Schouten presented falsified invoices and gave false oral evidence and a copy of an appeal decision from one of the hearings. The brief is cogent and telling.
  2. [6]
    In the appeal decision, the learned Senior Member specifically found that the three principal invoices relied upon by Ms Schouten to support her claim were false and referred to  Ms Schouten’s “obvious dishonesty in issuing false invoices”.[4]
  3. [7]
    Ms Schouten did not file submissions or any material in response.
  4. [8]
    I am therefore satisfied that the evidence supports the charges as particularised[5] and a finding that Ms Schouten acted unprofessionally. I am therefore satisfied proper grounds exist for disciplinary proceedings against Ms Schouten.

What is the appropriate penalty?

  1. [9]
    Ms Schouten:
  • Falsified two invoices and gave false evidence under oath in Tribunal proceedings that she paid three invoices and a quote, resulting in the Tribunal awarding her compensation of $1,968.00 – she has thereby made false representations about property (Grounds 1, 2, 3 and 4);[6]
  • Gave rise to a claim against the Claim Fund for reimbursement to the tenant because of her false representations (Ground 5);[7]
  • Falsified two invoices and gave false evidence in further Tribunal proceedings that she paid the invoices and an amount for curtains without disclosing that the curtains had been returned for a full refund, resulting in the Tribunal awarding her compensation of $1,090.98 - she has thereby made false representations about property (Grounds 6, 7 and 8);[8]
  • Gave rise to a claim against the Claim Fund for reimbursement to the tenant because of her false representations (Ground 9);[9] and
  • Paid bond money of $1,988.00 into her General Account instead of her Trust Account and did not later transfer it to her Trust Account – she has thereby failed to properly deal with money on receipt (Ground 10).[10]
  1. [10]
    The legislation regulating the conduct of real estate agents is designed to protect the public and maintain high standards of professional practice and procedure.[11] Ms Schouten’s dishonest conduct transgresses those standards. It is therefore appropriate that Ms Schouten be reprimanded for her conduct.
  2. [11]
    Although Ms Schouten did not engage with the Tribunal, during the investigation she made a submission to the Office of Fair Trading that relevantly stated:

With regard to Bond deposited in General Account I was not aware of this and the accountant audited it in September and this was not mentioned… I am a very small business not making a lot of money and not being dishonest, trying to do the right thing by everyone can sometimes be impossible.[12]

  1. [12]
    This means that as recently as 14 months ago, Ms Schouten continued to deny any dishonesty and showed no insight into the gravity of her conduct. The pressures of operating a business and fulfilling her duties to her client landlords and tenants do not mitigate her conduct: many small business proprietors have the same duties and commensurate pressures.[13]    
  2. [13]
    Ms Schouten has shown no remorse[14] and has not cooperated with the Chief Executive or the Tribunal to minimise the incurring of public resources in these proceedings. Ms Schouten has not repaid the amounts owing to the Claim Fund from her acts of dishonesty.[15] At no stage has Ms Schouten accepted responsibility for her actions.
  3. [14]
    Ms Schouten’s failure to properly receipt money held on trust strikes at the very protection the legislation was intended to provide[16] and undermines the integrity of the industry and the confidence of the community.[17]
  4. [15]
    Moreover, although the amounts are not significant, the conduct is significant because of its dishonesty. Ms Schouten not only lied to the tenants, she lied to the Tribunal. Ms Schouten’s conduct thereby attacks the system of justice as a whole and undermines its integrity.[18] The Tribunal must be able to rely upon the evidence of those before appearing before it to make its determinations according to law and fulfil its mandate of dealing with matters in a way that is accessible, fair, just, economical, informal and quick.[19] The victims of Ms Schouten’s conduct are not only the tenants and member of her industry, but all who use the justice system. 
  5. [16]
    Trust account breaches and dishonest dealings usually attract lengthy or permanent periods of disqualification. However, these cases have usually involved substantial amounts or patterns of conduct over a substantial period.[20] In Faraj,[21] the Tribunal permanently disqualified the agent for failing to properly pay eight rental bonds, withholding $18,481.93 and deliberately misleading her client. In Carranza,[22] the Tribunal permanently disqualified the agent for misappropriating $68,000.00 held on trust. In contrast, Ms Schouten’s conduct occurred over a relatively short period and for comparatively modest amounts.
  6. [17]
    In Sheppard[23] and Lloyd[24] the ill health of the agents’ spouses helped mitigate their disqualification to ten years, for trust account breaches exceeding $10,000.00. In Schellars,[25] the agent’s co-operation and absence of financial loss helped mitigate the disqualification period to five years. Similarly, in Johnson,[26] the agent’s full co-operation and repayment of the misused money, remorse and lack of intent helped mitigate her disqualification to two years. None of these mitigating factors are evident here.
  7. [18]
    Disciplinary proceedings are intended to protect both public and other professional parties.[27] Although the dishonesty in these previous decisions incurred larger amounts, what elevates the penalty for Ms Schouten’s conduct to a realm commensurate with previous cases involving larger amounts is that her dishonesty was in her capacity as an agent during the course of legal proceedings.
  8. [19]
    The amounts are substantially less than previous decisions imposing periods of disqualification of ten years. However, the factors mitigating disqualification periods to two to five years are not evident. Proportionality and consistency therefore dictate that the disqualification period should be between five years and ten years.
  9. [20]
    The Courts cannot and will not permit interference with the due administration of justice.[28] Ms Schouten had been an agent for 18 years at the time of her conduct and should know better.[29] A substantial period of disqualification is warranted to protect the public[30] and uphold the administration of justice.
  10. [21]
    In Grimsey,[31] the Tribunal disqualified the agent for seven years for trust account breaches. In the absence of any mitigating factors, I am satisfied that Ms Schouten’s conduct is sufficiently grave to warrant that she be disqualified for an extended period of seven years.
  11. [22]
    I am also satisfied that a fine is in order to deter others. The maximum fine is 540 penalty units for a false representation[32] and 200 penalty units for improperly dealing with an amount on receipt.[33] A penalty unit is currently $110.00. Fixing a pecuniary penalty does not simply entail applying mathematical formulae; it depends on the merits or unique factual matrix of each case.[34]
  12. [23]
    Ms Schouten’s failure to repay the ill-gotten gains[35] and the need to deter both her and others are apposite.
  13. [24]
    Because the false representations relate to two separate tenancies and proceedings, Ms Schouten lied to the Tribunal on two separate and distinct occasions. I therefore consider it appropriate to impose two separate fines for each course of conduct involving the false representations, being twice the amount wrongfully gained on each occasion, rounded down to the nearest penalty unit. This equates to a fine of $3,850.00 (35 penalty units) for the first proceedings and $2,090.00 (19 penalty units) for the second proceedings.
  14. [25]
    I also consider it appropriate to impose a fine of twice the amount of the improper dealing of trust money, rounded down to the nearest penalty unit. This equates to a fine of $3960.00 (36 penalty units).
  15. [26]
    I therefore fix the total penalty at $9900.00.    

What are the appropriate Orders?

  1. [27]
    The Chief Executive sought costs, but did not address the matters to be considered by the Tribunal[36] or provide details of the amount of those costs.
  2. [28]
    I am therefore not persuaded that it is in the interests of justice[37] to depart from the threshold position[38] that each party pay their own costs.[39]
  3. [29]
    Because of my above reasons, the appropriate Orders are:
    1. Teresa Janet Schouten is reprimanded.
    2. Teresa Janet Schouten is disqualified from holding any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000 for a period of 7 years.
    3. Teresa Janet Schouten is prohibited from being an executive officer of a corporation that holds any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000 for a period of 7 years.
    4. Teresa Janet Schouten pay to the Chief Executive, Department of Justice and Attorney-General a fine of $9,900.00 by 5 October 2015.

Footnotes

[1]Annexure “B” to the Affidavit of Craig Gerard Moffatt, Investigating Officer of the Office of Fair Trading, sworn 5 February 2015 sets out the particulars of the ten grounds for disciplinary proceedings. 

[2]Directions dated 5 March 2015 at paragraph 2.

[3]Affidavit of Service of Craig Moffat sworn 3 March 2015, attesting that the application was sent by registered post to Ms Schouten’s address noted in the register of licences. Nothing indicates the letter was returned to the Chief Executive. The Tribunal’s Directions were sent to Ms Schouten at the same address on 9 March 2015 and not returned. This suggests that Ms Schouten has notice of the proceedings and it is therefore appropriate they be determined without further delay.

[4]Hall v. Janet Schouten Real Estate [2014] QCATA 213 at [11] and [12].

[5]Annexure “B” to the Affidavit of Craig Gerard Moffatt, Investigating Officer of the Office of Fair Trading, sworn 5 February 2015 sets out the particulars of the ten grounds for disciplinary proceedings. 

[6]Property Agents and Motor Dealers Act 2000 (Qld) s 574(1).

[7]Property Agents and Motor Dealers Act 2000 (Qld) s 496(1)(d).

[8]Property Agents and Motor Dealers Act 2000 (Qld) s 574(1).

[9]Property Agents and Motor Dealers Act 2000 (Qld) s 496(1)(d).

[10]Property Agents and Motor Dealers Act 2000 (Qld) s 379(a).

[11]Chief Executive, Department of Justice and Attorney-General v. Grimsey [2015] QCAT 1 at [60].

[12]Letter Janet Schouten to Office Fair Trading dated 20 May 2014.

[13]Department of Employment, Economic Development & Innovation v. Baldwin [2012] QCAT 161 at [10]; Chief Executive, Department of Justice and Attorney-General v. Hiltdeen Pty Ltd (under external administration) and Lloyd [2012] QCAT 430 at [17].

[14]Chief Executive Department of Justice and Attorney-General v. Hoppner [2014] QCAT 296 at [93].

[15]Affidavit of Adrian William Tan, Senior Recoveries Officer, sworn 30 January 2015.

[16]Property Agents and Motor Dealers Act 2000, ss 10(2), 10(3)(b)(i).

[17]Chief Executive, Department of Justice and Attorney-General v. Sheppard [2012] QCAT 164 at [10].

[18]Attorney-General v. Times Newspapers Pty Ltd [1974] AC 273.

[19]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(a).

[20]The Chief Executive, Department of Employment, Economic Development and Innovation v. Welburn [2010] QCAT 202; Department of Employment, Economic Development & Innovation v. Gold Coast Property Investments & Management Pty Ltd (in liquidation) [2011] QCAT 483; Department of Employment, Economic Development & Innovation v. Baldwin [2012] QCAT 161; Chief Executive, Department of Justice and Attorney-General v. Halmarn Pty Ltd [2014] QCAT 099; Chief Executive, Department of Justice and Attorney-General v. Mikealy Pty Ltd and Chadban [2012] QCAT 428; Chief Executive, Department of Justice and Attorney-General v. Grimsey [2015] QCAT 1.

[21]Chief Executive Department of Justice and Attorney-General v. Faraj [2011] QCAT 640.

[22]Chief Executive, Department of Justice and Attorney-General v. My House is Your House Pty Ltd (under external administration) & Carranza [2012] QCAT 326.

[23]Chief Executive, Department of Justice and Attorney-General v. Sheppard [2012] QCAT 164.

[24]Chief Executive, Department of Justice and Attorney-General v. Hiltdeen Pty Ltd (under external administration) and Lloyd [2012] QCAT 430

[25]The Chief Executive, Department of Employment, Economic Development and Innovation v. Schellars [2010] QCAT 477.

[26]Chief Executive, Department of Justice and Attorney-General v. Cameo Property Services Pty Ltd and Johnson [2012] QCAT 509.

[27]The Chief Executive, Department of Employment, Economic Development and Innovation v. Welburn [2010] QCAT 202 at [11]; Department of Employment, Economic Development & Innovation v. Baldwin [2012] QCAT 161 at [11].

[28]Attorney-General (UK) v. Newspaper Publishing (PLC) [1988] Ch. 333 at 368.

[29]Department of Employment, Economic Development & Innovation v. Baldwin [2012] QCAT 161 at [10].

[30]Chief Executive Department of Justice and Attorney-General v. Hoppner [2014] QCAT 296 at [95].

[31]Chief Executive, Department of Justice and Attorney-General v. Grimsey [2015] QCAT 1.

[32]Property Agents and Motor Dealers Act 2000 (Qld) s 574(1).

[33]Property Agents and Motor Dealers Act 2000 (Qld) s 379(a).

[34]Chief Executive, Department of Justice and Attorney-General v. Halmarn Pty Ltd [2014] QCAT 099 at [28]; Chief Executive Department of Justice and Attorney-General v. Hoppner [2014] QCAT 296 at [89].

[35]Chief Executive Department of Justice and Attorney-General v. Hoppner [2014] QCAT 296 at [90].

[36]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(3).

[37]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 102(1).

[38]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100.

[39]The Chief Executive, Department of Employment, Economic Development and Innovation v. Schellars [2010] QCAT 477 at [10] and [11]; Chief Executive, Department of Justice and Attorney-General v. Grimsey [2015] QCAT 1 at [94].

Close

Editorial Notes

  • Published Case Name:

    The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate

  • Shortened Case Name:

    The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate

  • MNC:

    [2015] QCAT 307

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    03 Aug 2015

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Attorney- General v Newspaper Publishing plc [1988] Ch 333
2 citations
Jump To
Cite 1 - [1988] Ch 333
Cite 2 - [1988] Ch 333
Attorney-General v Times Newspapers Ltd (1974) AC 273
2 citations
Jump To
Cite 1 - (1974) AC 273
Cite 2 - (1974) AC 273
Chief Executive Department of Justice and Attorney-General v Faraj [2011] QCAT 640
2 citations
Jump To
Cite 1 - [2011] QCAT 640
Cite 2 - [2011] QCAT 640
Chief Executive Department of Justice and Attorney-General v Hoppner [2014] QCAT 296
5 citations
Jump To
Cite 1 - [2014] QCAT 296
Cite 2 - [2014] QCAT 296
Cite 3 - [2014] QCAT 296
Cite 4 - [2014] QCAT 296
Cite 5 - [2014] QCAT 296
Chief Executive, Department of Justice and Attorney General v Cameo Property Services Pty Ltd and Anor [2012] QCAT 509
2 citations
Jump To
Cite 1 - [2012] QCAT 509
Cite 2 - [2012] QCAT 509
Chief Executive, Department of Justice and Attorney General v Halmarn Pty Ltd [2014] QCAT 99
3 citations
Jump To
Cite 1 - [2014] QCAT 99
Cite 2 - [2014] QCAT 99
Cite 3 - [2014] QCAT 99
Chief Executive, Department of Justice and Attorney General v Hiltdeen Pty Ltd (under external administration) and Anor [2012] QCAT 430
3 citations
Jump To
Cite 1 - [2012] QCAT 430
Cite 2 - [2012] QCAT 430
Cite 3 - [2012] QCAT 430
Chief Executive, Department of Justice and Attorney General v Mikealy Pty Ltd and Anor [2012] QCAT 428
2 citations
Jump To
Cite 1 - [2012] QCAT 428
Cite 2 - [2012] QCAT 428
Chief Executive, Department of Justice and Attorney General v My House is Your House Pty Ltd (under external administration) & Anor [2012] QCAT 326
2 citations
Jump To
Cite 1 - [2012] QCAT 326
Cite 2 - [2012] QCAT 326
Chief Executive, Department of Justice and Attorney General v Sheppard [2012] QCAT 164
3 citations
Jump To
Cite 1 - [2012] QCAT 164
Cite 2 - [2012] QCAT 164
Cite 3 - [2012] QCAT 164
Chief Executive, Department of Justice and Attorney-General v Grimsey [2015] QCAT 1
5 citations
Jump To
Cite 1 - [2015] QCAT 1
Cite 2 - [2015] QCAT 1
Cite 3 - [2015] QCAT 1
Cite 4 - [2015] QCAT 1
Cite 5 - [2015] QCAT 1
Department of Employment, Economic Development & Innovation v Baldwin [2012] QCAT 161
5 citations
Jump To
Cite 1 - [2012] QCAT 161
Cite 2 - [2012] QCAT 161
Cite 3 - [2012] QCAT 161
Cite 4 - [2012] QCAT 161
Cite 5 - [2012] QCAT 161
Department of Employment, Economic Development & Innovation v Gold Coast Property Investments & Management Pty Ltd (in liquidation) [2011] QCAT 483
2 citations
Jump To
Cite 1 - [2011] QCAT 483
Cite 2 - [2011] QCAT 483
Hall v Janet Schouten Real Estate [2014] QCATA 213
2 citations
Jump To
Cite 1 - [2014] QCATA 213
Cite 2 - [2014] QCATA 213
The Chief Executive, Department of Employment, Economic Development and Innovation v Schellaars [2010] QCAT 477
3 citations
Jump To
Cite 1 - [2010] QCAT 477
Cite 2 - [2010] QCAT 477
Cite 3 - [2010] QCAT 477
The Chief Executive, Department of Employment, Economic Development and Innovation v Welburn [2010] QCAT 202
4 citations
Jump To
Cite 1 - [2010] QCAT 202
Cite 2 - [2010] QCAT 202
Cite 3 - [2010] QCAT 202
Cite 4 - [2010] QCAT 202

Cases Citing

Case NameFull CitationFrequency
Schouten v The Chief Executive, Department of Justice and Attorney-General [2016] QCATA 9512 citations
Your Future Property Management v Koroi & Cox [2016] QCATA 342 citations
1

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