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- Chief Executive, Department of Justice and Attorney General v Dariush-Far[2016] QCAT 368
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Chief Executive, Department of Justice and Attorney General v Dariush-Far[2016] QCAT 368
Chief Executive, Department of Justice and Attorney General v Dariush-Far[2016] QCAT 368
CITATION: | Chief Executive, Department of Justice and Attorney General v Dariush-Far [2016] QCAT 368 |
PARTIES: | Chief Executive, Department of Justice and Attorney General (Applicant) v Alexander Hamid Dariush-Far (Respondent) |
APPLICATION NUMBER: | OCR081-15 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 11 October 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
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CATCHWORDS: | PROFESSIONS AND TRADES – LICENSING OR REGULATION OF OTHER CALLINGS –Real Estate Agent– Disciplinary – where an agent offered a contract using a de-registered company that he had been a director or without informing the sellers – where the same agent falsified information about the deposit using a non-existent trust account – where the agent fraudulently produced documents from another person to try to terminate the contract – whether disciplinary action should be taken against the agent – whether or what penalty should be imposed Property Agents and Motor Dealers Act 2000 (Qld), ss 10, 138, 496 Property Occupations Act 2014 (Qld), s 186 Chief Executive, Department of Justice and Attorney General v Hucker [2015] QCAT 87 Schouten t/as Janet Schouten Real Estate v The Chief Executive, Department of Justice and Attorney-General [2016] QCATA 95 Chief Executive Department of Justice and Attorney General v Keyte [2012] QCAT 244 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]Alexander Hamid Dariush-Far was a licensed real estate dealer carrying on business as “Prime Commercial” at Runaway Bay in Queensland.
- [2]A contract has been produced to this tribunal dated 21 January 2013 between the Gold Coast Jewish Community Services Incorporated and Guardian Care Pty Ltd and Moritz H Pty Ltd as sellers and Kiana Bay Pty Ltd as the purchaser of residential land at Parkwood in Queensland.
- [3]The purchase price is listed as $1,100,000 with an initial deposit of $1,000 and a balance deposit of $99,000 payable when the contract became unconditional.
- [4]Prime Commercial is listed as the agent for the sale. The deposit holder was Xfar Homes trust account. The contract listed Qld Law Group as the solicitors for the purchaser, Kiana Bay Pty Ltd.
- [5]On 24 October 2013, the Office of Fair Trading received a claim against the fidelity fund from the purchasers in this contract saying they suffered a financial loss because of the actions of Mr Dariush-Far, an employee of Prime Commercial.
- [6]The claim alleged that the sellers had appointed Mr Dariush-Far as agent for the sale of the property and that the contract had subsequently been entered into. A $100,000 deposit had been required under the contract and the sellers alleged that Mr Dariush-Far had confirmed that this deposit was being held in cleared funds.
- [7]When the contract failed to settle, the sellers required the deposit but Mr Dariush-Far was unable to provide it.
- [8]After investigations, it became known that Kiana Bay Pty Ltd had been a de-registered company since 28 April 2012 and Mr Dariush-Far had been a director of that company until 17 October 2011. Further, the trust account of Xfar Homes had been closed on 11 March 2011.[1]
- [9]On 24 January 2013, Mr Dariush-Far confirmed by email to the Solicitor for the sellers that he was holding the initial deposit of $1,000.[2] Mr Dariush-Far further confrmed the balance of the $99,000 as being deposited on 29 May 2013[3] and later advised, on 6 June 2013, that the cheque had cleared.[4]
- [10]There is now no evidence of any deposit being paid. In a formal, recorded interview conducted on 19 June 2014 with inspectors of the Office of Fair Trading, Mr Dariush-Far admitted that: he did not have a signed Appointment to Act; that as he wasn’t claiming commission, he didn’t have a duty of care to the sellers; that he does not have a trust account; that the whole deposit was never received and that he sent emails to the Solicitor for the sellers advising it had been paid.
- [11]On 19 July 2013, Mr Dariush-Far emailed the solicitor for the seller attaching a letter supposedly from the de-registered company Kiana Bay Pty Ltd to Prime Commercial purporting to terminate the contract and asking that the non-existent deposit be released to Kiana Bay Pty Ltd.
- [12]This was the first letter in a series of letters purportedly signed by Mr Aman Afshar.[5]
- [13]The second letter was sent to Prime Commercial again purportedly by Mr Afshar on behalf of Kiana Bay Pty Ltd denying the deposit should be released to the sellers.
- [14]The third letter was dated 26 August 2013, again purportedly sent by Mr Afshar on behalf of Kiana Bay Pty Ltd denying payment of the deposit.
- [15]Mr Afshar denies all knowledge of all of these letters.[6] Mr Afshar says Mr Dariush-Far is a friend and that he worked with him in real estate. He says he did not type or sign any of the letters or give Mr Dariush-Far permission to use his name or address.
- [16]The Chief Executive asks the Tribunal to decide whether disciplinary grounds are established against Mr Dariush-Far under section 496 of the then Property Agents and Motor Dealers Act 2000 (Qld) (now repealed) and for the imposition of a penalty under section 186 of the Property Occupations Act 2014 (Qld) if the disciplinary grounds are established.
- [17]The Chief Executive submits on three grounds. They are:
- that Mr Dariush-Far has contravened or breached the PAMDA Act or a code of conduct (s 496(1)(b)(i));
- that Mr Dariush-Far is not a suitable person to hold a licence (s 496(1)(g)(i)); or
- that Mr Dariush-Far has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way (s 496(1)(g)(iii)).
- [18]The particulars of these grounds are contained in Annexure “B” to the application of the Chief Executive filed on 20 May 2015. The particulars of the allegations pertaining to the grounds are set out here in full and are as follows:
- On 10th January 2013, Mr Dariush-Far presented a signed Contract[7] for the purchase of the property for $1.1million dollars, to the seller’s solicitor, Catherine Haney of Haney Lawyers.[8]
- The contract listed the purchasing entity of the property as Kiana Bay Pty Ltd (the buyer). The contract was initialled and signed by an unidentified person as the buyer.
- Mr Dariush-Far was aware that the company was deregistered.[9]
- At the time of presenting the contract to the sellers, Mr Dariush-Far failed to advise the sellers that Kiana Bay Pty Ltd was a de-registered company.
- At no time did Mr Dariush-Far disclose his previous involvement with Kiana Bay Pty Ltd.
- Australian Securities and Investments Commission (ASIC) records[10] identify that at the time of entering into the contract, the buyer Kiana Bay Pty Ltd ACN 140 923 315, was a de-registered company – being first registered as a company on 3rd December 2009 and de-registered on 28th April 2012.
- ASIC records identify Mr Dariush-Far as a director of Kiana Bay Pty Ltd from 3rd December 2009 until 17th October 2011.
- On 24th January 2013, Mr Dariush-Far emailed[11] the seller’s solicitor Catherine Haney of Haney Lawyers, and advised that he was holding $1,000.00 as deposit on the property, paid by the buyer, Kiana Bay Pty Ltd [12].
- The contract[13] identified the deposit holder as “XFAR Homes Trust Account”.
- Office of Fair Trading records identify that the trust account “XFAR Homes Trust Account” operated by the defendant was closed on 11 th March 2011.[14]
- Office of Fair Trading records identify that there is no Trust Account linked to the defendant or the business Prime Commercial.[15]
- There was no evidence of the $1,000.00 deposit being paid to the defendant in relation to the property.[16]
- In the correspondence of 24th January 2013, Mr Dariush-Far made a false or misleading representation to the sellers regarding the receipt and holding of a $1,000.00 deposit paid by the buyers for the purchase of the property.
- At no time did the defendant disclose his previous involvement with XFAR Homes Trust Account.
- On the 29th May 2013, Mr Dariush-Far sent two emails[17] to the seller’s solicitor, Catherine Haney of Haney Lawyers, stating that a further deposit of $99,000.00 had been paid by the buyer, Kiana Bay Pty Ltd for the property and the total deposit being held was now $100,000.00.[18]
- On 6th June 2013 Mr Dariush-Far emailed[19] Catherine Haney advising that the $99,000.00 cheque had cleared.[20]
- The property contract identified the deposit holder as “XFAR Homes Trust Account”.
- Office of Fair Trading records identify that the trust account “XFAR Homes Trust Account” operated by Mr Dariush-Far was closed on 11th March 2011.
- Office of Fair Trading records identify that there is no Trust Account linked to Mr Dariush-Far, the business Prime Commercial or Sovereign Realty.
- There was no evidence of the $99,000.00 deposit being paid to Mr Dariush-Far in relation to the property.[21]
- In the correspondence of 29th May 2013 and 6th June 2013, Mr Dariush-Far made a false or misleading representation to the sellers regarding the receipt and holding of a $99,000.00 deposit paid by the buyers for the purchase of the property.
- At no time did Mr Dariush-Far disclose his previous involvement with XFAR Homes. On 19th July 2013, Mr Dariush-Far emailed the sellers solicitor, Catherine Haney of Haney Lawyers with an attached letter[22] purportedly signed by Mr Aman Afshar of Unit 8/150 High St, Southport, relating to the property transaction.
- Mr Afshar’s letter was on behalf of Kiana Bay Pty Ltd (the buyer) to Prime Commercial and stated “I hereby terminate the contract of sale for above property due to uncertainty and your misrepresentation about settlement date”.
- Mr Afshar further requested the deposit be released to him immediately and that he held the defendant responsible for any losses or damages.
- Mr Afshar, of Unit 18/150 High St, Southport, was an acquaintance and previous employee of the defendant.
- Mr Afshar did not write or recognise the letter dated 19th July 2013, nor was it his signature on the letter.[23]
- Mr Afshar had no knowledge of the property or involvement in the proposed purchase of the property.
- On 22nd July 2013, Mr Dariush-Far emailed[24] the seller’s solicitor and stated that “The deposit money will be forfeited today…..”
- In the correspondence of 19th July 2013, Mr Dariush-Far has made a false or misleading representation to the sellers and Haney Lawyers in relation to the termination of the property contract by the buyer.
- In the correspondence of 22nd July 2013, Mr Dariush-Far made a false or misleading statement in that there was no deposit paid that was capable of being forfeited.
- On 26 th July 2013, Mr Dariush-Far emailed the seller’s solicitor, Catherine Haney of Haney Lawyers with an attached letter purportedly signed by Mr Aman Afshar of Unit 8/150 High St, Southport.
- In the letter OFT 054 dated 25th July 2013 and purportedly signed by Mr Afshar, he advised the solicitor of the following:
- (i)that at no time should the deposit be released to the seller.
- (ii)the contract was terminated because settlement date agreed upon was not met.
- (iii)they have been advised by a barrister of high court that the contract is invalid because the entity purchasing the property has been deregistered since 2012.
- (iv)the deposit monies shall be refunded as soon as possible.
- (v)the seller has no right over deposit monies.
- (vi)in the event the deposit monies are not released to them by 5pm Friday they will report matter to OFT take action against the defendant for misleading and deceptive conduct.
- (i)
- Mr Afshar, of Unit 18/150 High St, Southport, was an acquaintance and previous employee of Mr Dariush-Far.
- Mr Afshar did not write or recognise the letter dated 25th July 2013, nor was it his signature on the letter.[25]
- Mr Afshar had no knowledge of the property or involvement in the proposed purchase of the property.
- In the correspondence of 25th July 2013, Mr Dariush-Far has made a false or misleading representation to the sellers and Haney Lawyers in relation to the refund of deposit money requested by the buyer for the property.
- On 26th August 2013, the defendant emailed the seller’s solicitor Catherine Haney of Haney Lawyers, with an attached letter purportedly from Mr Aman Afshar of Unit 8/150 High St, Southport.[26]
- In the letter dated 26th August 2013 and purportedly signed by Mr Afshar, he advised the defendant of the following:
- (i)I never told you that I paid the deposit.
- (ii)You advised me that deposit had been paid.
- (iii)I was under impression my partner from overseas paid deposit.
- (iv)I have contacted my relatives overseas and they have confirmed they have not transferred any money.
- (v)Sorry for inconvenience however we will not be proceeding with this purchase.
- (vi)You are welcome to take legal action against us.
- (i)
- Mr Afshar, of Unit 18/150 High St, Southport, was an acquaintance and previous employee of the defendant.
- Mr Afshar did not write or recognise the letter dated 26 th August 2013, nor was it his signature on the letter[27].
- Mr Afshar had no knowledge of the property or involvement in the proposed purchase of the property.
- In the correspondence of 26th August 2013, Mr Dariush-Far has made a false or misleading representation to the sellers and Haney Lawyers in relation to the deposit paid by the buyer for the property.
- [19]Mr Dariush-Far asserts he was buying the land using a de-registered company intending to transfer the company to Iranian persons when the land was re-zoned (at his expense) and who could benefit also from losses held by the company. There is no independent evidence of any third parties.
- [20]Mr Dariush-Far futher says the only seller he was dealing with was Mr Avon Cook as the other sellers were corporate and that he had not wanted to disappoint Mr Cook.
- [21]Mr Dariush-Far says he personally spent $20,000 re-zoning the property and that he made an offer to Mr Cook to buy his share of the property. There is no independent evidence of these assertions.
- [22]The Chief Executive submits:
- The misconduct of Mr Dariush-Far occurred on mulitiple occasions in respect of the sale of property for which Mr Dariush-Far was acting as a real estate agent;
- The contract was ficticious, the purchaser company deregistered and the trust account closed;
- The course of conduct lasted 7.5 months from when the contract was signed;
- The claims about the deposit to the solicitor of the seller were clearly untrue;
- The letters sent to terminate the contract were not written or signed by the signatory;
- Mr Dariush-Far had not disclosed that he had once been a director of the de-registered company and that company could never complete the contract;
- It is misleading conduct given Mr Dariush-Far’s knowledge of these matters;
- The detriment suffered by the sellers was that they were led to believe that unless the contract was lawfully terminated, the property was no longer available for sale. They also believed a competent purchaser had been found by Mr Dariush-Far.
- Mr Dariush-Far repeatedly engaged in deliberately false and misleading behaviour towards the sellers and their solicitor.
- Mr Dariush-Far’s actions undermine the standards expected of a real estate agent and the reputation of the industry.
- [23]Although denying all responsibility for any obligation towards the sellers of this land, Mr Dariush-Far says he is most remorseful and ashamed of his actions. He does not apologise for his actions in correspondence with the solicitor for the sellers.
- [24]Mr Dariush-Far also says there was an increase in the valuation of the property but no evidence of this was produced. Mr Dariush-Far further says he was not appointed as agent and took no commission.
Discussion
- [25]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.[28]
- [26]I am satisfied that Mr Dariush-Far entered into this transaction with the purpose of taking advantage of the seller’s circumstances to make a profit for himself.
- [27]I am satisfed he did not act in good faith towards the sellers, disclose important and pertinant facts concerning the identity and status of the purchasing company, lied about the holding of the deposit in a ficticious trust account and fraudulently used the details of another person to try to terminate the contract.
- [28]These are very serious matters. Because of the severity of these findings, I am satisifed that Mr Dariush-Far has knowingly and repeatedly embarked on a course of misleading and deceptive conduct.
- [29]Section 138 of the then PAMDA Act (headed Disclosures to prospective buyer) states a residential property agent for the sale of residential property must disclose the following to any prospective buyer of the property, any relationship, and the nature of the relationship (whether personal or commercial), the agent has with anyone to whom the agent refers the buyer for professional services associated with the sale.
- [30]Examples of relationships are given as a family relationship, a business relationship, other than a casual business relationship, a fiduciary relationship, a relationship in which one person is accustomed, or obliged to act in accordance with the directions, instructions, or wishes of the other.
- [31]Under this section, a residential property agent for the sale of residential property must also disclose whether the agent derives or expects to derive any benefit from a person to whom the agent has referred the buyer and, if so, the amount or value of the benefit, the amount, value or nature of any benefit any person has received, receives, or expects to receive in connection with the sale, or for promoting the sale, or for providing a service in connection with the sale, of the property.
- [32]I am satisfied that Mr Dariush-Far has knowingly and substantially breached these requirements.
- [33]The test to determine whether a real estate agent is a fit and proper person has been expressed as:
- That improper conduct has occurred;
- That improper conduct is likely to occur;
- Whether it can be assumed that improper conduct will not occur;
- Whether the general community will have confidence that it will not occur.[29]
- [34]I am satisfied improper conduct has occurred in Mr Dariush-Far’s deliberate actions to deceive and in particular to not disclose important relationship facts which would have influenced the sellers in their consideration of the contract he presented to them.
- [35]I am satisfied that it is also improper conduct by Mr Dariush-Far to take these actions for his personal gain. His conduct shows that he has not had proper regard for the due responsibilities of his position and for the provisions of the then Act.
- [36]Mr Dariush-Far has expressed some remorse but has failed to acknowledge that he has breached the Act.
- [37]I am not satisfied the general community could have confidence that such improper conduct will not reoccur.
- [38]I find Mr Dariush-Far is not a suitable person to act as a real estate agent and that this finding is borne out by his actions and conduct. I find charges 1 and 2 made out.
Penalty
- [39]The Tribunal may make orders against a person in relation to whom the Tribunal finds grounds exist to take disciplinary action, pursuant to section 186 of the Property Occupations Act 2014 (Qld).
- [40]These orders include a reprimand, a fine, suspension of a license for a period or permanent disqualification and that a person be permanently prohibited from being an executive officer of a corporation which holds any form of licence under the Property Occupations Act.
- [41]The Chief Executive submits that Mr Dariush-Far has deliberately acted in an unprofessional manner to such a degree that hs behaviour makes him unsuitable to hold a licence or certificate.
- [42]The Chief Executive provided two comparative cases. The first is Chief Executive, Department of Justice and Attorney General v Hucker [2015] QCAT 87. In that matter the agent failed on one occasion to pay a deposit into a trust account and dishonestly converted money to her own uses. In that matter, the agent was reprimanded, permanently disqualified as an agent and as an executive officer, fined and ordered to pay costs.
- [43]In Mr Dariush-Far’s actions there were multiple deceptions in many areas.
- [44]The second comparator is the appeal decision of Schouten t/as Janet Schouten Real Estate v The Chief Executive, Department of Justice and Attorney-General [2016] QCATA 95. That matter also involved falsification of invoices and also false evidence under oath in the tribunal proceedings.
- [45]On appeal, the agent was reprimanded, disqualified for a set period as an agent and as an executive officer and fined.
- [46]Mr Dariush-Far’s actions are of a much more serious nature than either of these comparators. His actions were a considered course of conduct intended to create a financial gain for himself, and later when it was clear this would not occur, to lie and undertake a fraud to try to terminate the contact by deceit.
- [47]Mr Dariush-Far showed little or no remorse for his conduct. Indeed he submits he has been humilated enough already during the lengthy investigations. He has been a real estate agent for a total of 31 years – most of his life, on his submissions. With such a history as an agent, it is not possible for Mr Dariush-Far to be ignorant of his responsiblities.
- [48]I am satisifed that his actions are so serious and so calculated that Mr Dariush-Far is unsuitable to in the future hold a licence or certificate under the Property Occupations Act or to be an executive officer of a corporation which holds any form of licence under that Act.
- [49]I am also satisfied that the imposition of a fine is warranted as a general deterrence but also to reflect the calculated course of illegal conduct undertaken by Mr Dariush-Far. I am satisifed this fine should be imposed in the light of the various and numerous acts of dishonestly knowingly undertaken by Mr Dariush-Far.
- [50]However, I have no evidence before me that the seller suffered any quantifiable financial detriment The evidence of the Chief Executive is that the detriment suffered by the sellers was that they were led to believe that unless the contract was lawfully terminated, the property was no longer available for sale and that the sellers believed a competent purchaser had been found by Mr Dariush-Far.
- [51]The property was held out of the market by Mr Dariush-Far’s action for over 7 months. In the end, the only person substantially hurt by Mr Dariush-Far’s actions was himself.
- [52]I impose a fine of $5000.00 to be paid within 42 days.
Footnotes
[1]Statement of Loretta Taylor Exhibit list: OFT-001.
[2]Ibid, OFT-018.
[3]Ibid, OFT-029.
[4]Ibid, OFT-030.
[5]Ibid, OFT-036.
[6]Ibid, OFT-009.
[7]Statement of Loretta Taylor Exhibit list: OFT-017.
[8]Ibid, OFT-008.
[9]Ibid, OFT-060 pp 14-19.
[10]Ibid, OFT-003.
[11]Ibid, OFT-018.
[12]Ibid, OFT-008.
[13]Statement of Loretta Taylor Exhibit list: OFT-017.
[14]Ibid, OFT-001 para [19].
[15]Ibid, OFT-061 paras [8]-[10].
[16]Ibid, OFT-060 page 25 lines 484-5; 26 lines 502-3.
[17]Ibid, OFT-028 & 029.
[18]Ibid, OFT-060 page 27 lines 514 & 520.
[19]Ibid, OFT-030.
[20]Ibid, OFT-060 page 27 line 524.
[21]Ibid, OFT-060 page 28 lines 528-31.
[22]Statement of Loretta Taylor Exhibit list: OFT-036.
[23]Ibid, OFT-009.
[24]Ibid, OFT-037.
[25]Statement of Loretta Taylor Exhibit list: OFT-009.
[26]Ibid, OFT-055.
[27]Ibid, OFT-009.
[28]Property Agents and Motor Dealers Act 2000 (Qld) ss 10(1)(a); 10(2).
[29]Chief Executive Department of Justice and Attorney General v Keyte [2012] QCAT 244 at [10].