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  4. Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd - [2021] QCAT 239

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Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd[2021] QCAT 239

Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd[2021] QCAT 239

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd & Anor [2021] QCAT 239

PARTIES:

OFFICE OF FAIR TRADING, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(applicant)

v

SJ PTY LTD

HBC

(respondents)

APPLICATION NO/S:

OCR295-19

MATTER TYPE:

Occupational regulation matters

DELIVERED ON:

6 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

  1. Proper grounds exist to take disciplinary action against SJ Pty Ltd and HBC.
  2. SJ Pty Ltd and HBC are reprimanded.
  3. SJ Pty Ltd and HBC are disqualified from holding any form of licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of five (5) years from the expiry of their licences.
  4. HBC is disqualified from being an executive officer of a corporation that holds any form of licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of five (5) years from the expiry of her licence.
  5. SJ Pty Ltd pay to the Chief Executive, Department of Justice and Attorney-General a fine of $10,000.00 by 7 July 2023.
  6. HBC pay to the Chief Executive, Department of Justice and Attorney-General a fine of $5,000.00 by 7 July 2023.
  7. SJ Pty Ltd and HBC pay compensation to CDF of $4,534.55.
  8. SJ Pty Ltd and HBC pay compensation to NML of $1,322.05.
  9. Each party pays their own costs.
  10. In accordance with the President's Direction dated 30 April 2020 and with section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the reasons for this decision are published in a de-identified format to prevent the identification of a victim or alleged victim of domestic violence to a person who is not a party to the proceeding.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – whether grounds for disciplinary action – where overcharging – where dishonestly converting trust money for own use – where failing to disburse rent to owners – where failing to provide true accounts – where receiving trust money after expiry of licence – where conduct significant because of dishonesty – where agent victim of coercive control by ex-partner – where ex-partner’s bullying, threatening and manipulative behaviour was significant contributing factor to conduct – where toxic relationship ended – where extended disqualification period not needed to protect public – where fines imposed for general and specific deterrence

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – where not in interests of justice to depart from threshold position that each party pays their own costs

Agents Financial Administration Act 2014 (Qld), s 22,     s 23

Property Occupations Act 2014 (Qld), s 186

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 100, s 102, s 172

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

Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4

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 99

Chief Executive, Department of Justice and Attorney-General v Harper [2018] QCAT 22

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 Jones & Anor [2020] QCAT 10

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

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

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

Chief Executive, Department of Justice and Attorney-General v Tomic [2020] QCAT 83

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

REPRESENTATION:

 

Applicant:

R Vice, Principal Legal Officer

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

What is this Application about?

  1. [1]
    HBC was a licensed real estate agent and sole director of SJ Pty Ltd’s residential letting business. The Office of Fair Trading, Department of Justice and Attorney-General has brought disciplinary proceedings for two of those residential tenancies relating to:
    1. (a)
      HBC authorising SJ to overcharge for cleaning and linen;
    2. (b)
      HBC dishonestly converting car park rent money for her own personal use;
    3. (c)
      SJ failing to disburse rent to owners;
    4. (d)
      HBC and SJ failing to provide true accounts to their clients; and
    5. (e)
      SJ receiving trust money after the expiry of its licence.[1]

Do proper grounds exist for disciplinary proceedings?

  1. [2]
    HBC made a submission to the Tribunal, relevantly saying:

As I explained in our last hearing on July 14 I did not recall being told by KFJ to remove carpark income from our monthly income from [omitted]. As you have seen she included the carpark income in sales figures she prepared to assist me to sell [omitted].

As you can see from the attached correspondence I had detailed discussions with KFJ when I was going through an OFT investigation in 2015 and 2016.

At the conclusion of this investigation I was warned to discontinue leasebacks, and I complied with this request.

…

I could not find anywhere that I was advised to discontinue car park fees. On the contrary, in one of these emails KFJ refers to the profitability of the car park fees for management in relation to leasebacks.

In summary, I believe a lot of the confusion here has arisen from my strident attempt to alter all of my agreements to discontinue leasebacks and inadvertently neglecting to remove car parking income from this new set-up.

As I involved my auditor, so extensively in this process, I am surprised that if it was such a serious issue, why I was not told at the time to remove carpark income from the normal charges.

There is plenty of evidence of frequent communication with KFJ the auditor at this time and (sic) can find no evidence of advice to discontinue car park income.

I attach some of these emails.

I believe I was trying to be compliant in the best way I knew. I sought advice to do the right thing and it appears I was unaware of the issue that I am now being accused of.[2]

  1. [3]
    The Office of Fair Trading filed a comprehensive brief of evidence with the Tribunal including witness statements, ledgers, invoices, receipts, booking information, bank statements, spreadsheets, record of interview and other exhibits. HBC made admissions during her interview. The supporting evidence filed by HBC and the Office of Fair Trading shows:
    1. (a)
      The car park income sales figures referred to by HBC are before the assessed period of 1 July 2016 to 31 December 2016 and do not form part of the disciplinary grounds;[3]
    2. (b)
      The Office of Fair Trading did not warn HBC to discontinue leasebacks but instructed her to desist from putting leaseback money into the trust account;[4]
    3. (c)
      EG did not advise HBC that car park rent can be retained where the property to which the car park attached was not leased back;[5] and
    4. (d)
      SJ collected $4,862.00 in car park rent on 110 occasions between 2 September 2016 and 30 September 2016 and $2,490.00 on 68 occasions between 4 October 2016 and 28 October 2016.[6] More than mere inadvertence, this shows a repeated course of conduct.
  2. [4]
    I am therefore satisfied that the evidence supports a finding that HBC was not authorised to keep car parking money received for units managed by her that were not leased back from the owners.[7]
  3. [5]
    HBC did not otherwise dispute the allegations. I am therefore satisfied the evidence supports the charges as particularised.[8] I am therefore satisfied proper grounds exist for disciplinary proceedings against SJ and HBC.

What is the appropriate penalty?

  1. [6]
    The legislation regulating the conduct of real estate agents is designed to protect the public and maintain high standards of professional practice and procedure.[9] HBC’s dishonest conduct breached those standards. It is therefore appropriate that HBC and SJ are reprimanded for the conduct.
  2. [7]
    HBC’s failure to properly receipt money held on trust strikes at the very protection the legislation was intended to provide and undermines the integrity of the industry and the confidence of the community.[10] HBC showed little insight or remorse.[11] Her clients lost $12,888.60. She has not repaid these amounts. Although the amounts are not significant, the conduct is significant because of its dishonesty.
  3. [8]
    The Office of Fair Trading also sought penalties of permanent disqualification or for ten years, together with a fine of $10,000.00 for SJ and $5,000.00 for HBC. Trust account breaches and dishonest dealings usually attract lengthy or permanent periods of disqualification with fines between $8,000.00 and $10,000.00.[12] However, these cases have usually involved substantial amounts or patterns of conduct over a substantial period.[13] The amounts here were less and the period shorter.
  4. [9]
    The amounts are substantially less than previous decisions imposing periods of disqualification of ten years. In Sheppard[14] and Lloyd[15] the ill health of the agents’ spouses helped mitigate their disqualification to ten years, for trust account breaches exceeding $10,000.00. In Grimsey,[16] the Tribunal disqualified the agent for seven years for trust account breaches. In Schellaars,[17] the agent’s co-operation and absence of financial loss helped mitigate the disqualification period to five years.
  5. [10]
    The significant mitigating factor here is that HBC was a victim of her ex-partner’s coercive control throughout this period.[18] I am satisfied that this bullying, threatening and manipulative behaviour was a significant contributing factor to the conduct.
  6. [11]
    Although HBC has ended the relationship, she has suffered and continues to suffer from her ex-partner’s noxious actions. It is affecting her mentally, emotionally and financially. Although her current psychological state is more positive, her former partner’s actions have left her betrayed and broken.[19]
  7. [12]
    Disciplinary proceedings are intended to protect both public and other professional parties.[20] The significant contributing factor to the conduct is no longer present: HBC has ended the toxic relationship. An extended period of disqualification from hereon is not needed to protect the public. HBC is intelligent and capable. She should not be deprived of the potential to earn income as an agent. Given these mitigating factors, I am satisfied that a lesser disqualification period of five years from the expiry of the licences is appropriate. This will give HBC a chance to rebuild.
  8. [13]
    However, because there is still a need to deter others, fines are in order.[21] Fixing a pecuniary penalty does not simply entail applying mathematical formulae; it depends on the merits or unique factual matrix of each case.[22] HBC’s failure to repay the amounts to the victims[23] and the need to deter both her and others are apposite.[24]
  9. [14]
    The maximum fine is $26,990.00 (200 penalty units) for a corporation and $13,345 (100 penalty units) for an individual.[25] However, given the relatively modest amounts involved and lack of previous disciplinary history, fines of less than half the maximum will be imposed: $10,000.00 on SJ and $5,000.00 on HBC.[26] Given HBC’s financial circumstances and below compensation orders, I will allow two years to pay these fines.
  10. [15]
    The Office of Fair Trading sought compensation orders of $4,534.55 for CDF and $1,322.05 for NML from the conduct. CDF and NML are innocent victims. I am satisfied these orders are appropriate.[27]
  11. [16]
    Although the Office of Fair Trading also sought an order that SJ and HBC pay the costs of the proceedings, it did not address the matters to be considered by the Tribunal[28] or provide details of the amount of those costs. I am therefore not persuaded that it is in the interests of justice[29] to depart from the threshold position[30] that each party pays their own costs.[31]
  12. [17]
    These reasons are published in a de-identified format to prevent the identification  of a victim or alleged victim of domestic violence to a person who is not a party to the proceeding.[32]

Footnotes

[1]Affidavit of JBL sworn 11 September 2019; Statement of CDF dated 8 October 2018; Statement of NML dated 12 October 2018; Statement of JBL dated 14 June 2019; Statement of DRF dated 7 May 2019.

[2]Email HBC to QCAT dated 23 July 2020.

[3]Profit and Loss Statement from 1 November 2014 to 31 October 2015.

[4]Official Warning letter from Office of Fair Trading dated 6 January 2016; Record of Interview, line 2252.

[5]Email KFJ to HBC dated 22 November 2012; Email KFJ to HBC dated 20 January 2015.

[6]Spreadsheet C analysis, Spreadsheet D analysis, Car Park Ledger; Statement of JBL dated 14 June 2019, [39] to [45]. 

[7]Agents Financial Administration Act 2014 (Qld), s 22(5), s 23(1).

[8]Affidavit of JBL sworn 11 September 2019, Annexure “B”. 

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

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

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

[12]Chief Executive, Department of Justice and Attorney-General v Harper [2018] QCAT 22; Chief Executive, Department of Justice and Attorney-General v Jones & Anor [2020] QCAT 10; Chief Executive, Department of Justice and Attorney-General v Tomic [2020] QCAT 83; Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4; 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 99; 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.

[13]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 99; 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.

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

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

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

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

[18]Report Dr OBA, Psychologist dated 12 May 2017.

[19]Report Dr OBA, Psychologist dated 12 May 2017; Report Dr OBA, Psychologist dated 21 November 2019.            

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

[21]Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4, [36].

[22]Chief Executive, Department of Justice and Attorney-General v Halmarn Pty Ltd [2014] QCAT 99, [28]; Chief Executive Department of Justice and Attorney-General v Hoppner [2014] QCAT 296, [89].

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

[24]Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4, [37].

[25]Property Occupations Act 2014 (Qld), s 186(1)(b).

[26]Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4, [38].

[27]Property Occupations Act 2014 (Qld), s 186(1)(c).

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

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

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

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

[32]Direction of the President dated 30 April 2020; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 172(2)(b) .

Close

Editorial Notes

  • Published Case Name:

    Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd & Anor

  • Shortened Case Name:

    Office of Fair Trading, Department of Justice and Attorney-General v SJ Pty Ltd

  • MNC:

    [2021] QCAT 239

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    06 Jul 2021

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
Chief Executive Department of Justice and Attorney-General v Hoppner [2014] QCAT 296
4 citations
Jump To
Cite 1 - [2014] QCAT 296
Cite 2 - [2014] QCAT 296
Cite 3 - [2014] QCAT 296
Cite 4 - [2014] QCAT 296
Chief Executive, Department of Justice and Attorney General v Ford [2017] QCAT 4
5 citations
Jump To
Cite 1 - [2017] QCAT 4
Cite 2 - [2017] QCAT 4
Cite 3 - [2017] QCAT 4
Cite 4 - [2017] QCAT 4
Cite 5 - [2017] QCAT 4
Chief Executive, Department of Justice and Attorney General v Halmarn Pty Ltd [2014] QCAT 99
4 citations
Jump To
Cite 1 - [2014] QCAT 99
Cite 2 - [2014] QCAT 99
Cite 3 - [2014] QCAT 99
Cite 4 - [2014] QCAT 99
Chief Executive, Department of Justice and Attorney General v Hiltdeen Pty Ltd (under external administration) and Anor [2012] QCAT 430
2 citations
Jump To
Cite 1 - [2012] QCAT 430
Cite 2 - [2012] QCAT 430
Chief Executive, Department of Justice and Attorney General v Jones [2020] QCAT 10
2 citations
Jump To
Cite 1 - [2020] QCAT 10
Cite 2 - [2020] QCAT 10
Chief Executive, Department of Justice and Attorney General v Mikealy Pty Ltd and Anor [2012] QCAT 428
3 citations
Jump To
Cite 1 - [2012] QCAT 428
Cite 2 - [2012] QCAT 428
Cite 3 - [2012] QCAT 428
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
Chief Executive, Department of Justice and Attorney-General v Harper [2018] QCAT 22
2 citations
Jump To
Cite 1 - [2018] QCAT 22
Cite 2 - [2018] QCAT 22
Chief Executive, Department of Justice and Attorney-General v Tomic [2020] QCAT 83
2 citations
Jump To
Cite 1 - [2020] QCAT 83
Cite 2 - [2020] QCAT 83
Department of Employment, Economic Development & Innovation v Baldwin [2012] QCAT 161
4 citations
Jump To
Cite 1 - [2012] QCAT 161
Cite 2 - [2012] QCAT 161
Cite 3 - [2012] QCAT 161
Cite 4 - [2012] QCAT 161
Department of Employment, Economic Development & Innovation v Gold Coast Property Investments & Management Pty Ltd (in liquidation) [2011] QCAT 483
3 citations
Jump To
Cite 1 - [2011] QCAT 483
Cite 2 - [2011] QCAT 483
Cite 3 - [2011] QCAT 483
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
Chief Executive, Department of Justice and Attorney General v Lyn Patricia Robbie [2022] QCAT 2002 citations
1

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