Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Schouten v The Chief Executive, Department of Justice and Attorney-General[2016] QCATA 95

Schouten v The Chief Executive, Department of Justice and Attorney-General[2016] QCATA 95

CITATION:

Schouten t/as Janet Schouten Real Estate v The Chief Executive, Department of Justice and Attorney-General [2016] QCATA 95

PARTIES:

Teresa Janet Schouten t/as Janet Schouten Real Estate

(Applicant/Appellant)

v

The Chief Executive, Department of Justice and Attorney-General

(Respondent)

APPLICATION NUMBER:

APL332-15

MATTER TYPE:

Appeals

HEARING DATE:

22 January 2016

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

Member Howard

DELIVERED ON:

16 March 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal is granted;
  2. The orders of the Tribunal dated 27 July 2015 are set aside;
  3. The following decision is substituted:
  1. (i)
    Teresa Janet Schouten is reprimanded;
  2. (ii)
    Teresa Janet Schouten is disqualified from holding any form of licence or registration under the Property Occupations Act 2014 for 3.5 years from 27 July 2015;
  3. (iii)
    Teresa Janet Schouten is prohibited from being an executive officer of a corporation that holds any licence or certificate of registration issued under the Property Occupations Act 2014 for 3.5 years from 27 July 2015; and
  4. (iv)
    Teresa Janet Schouten must pay to the Chief Executive, Department of Justice and Attorney-General a fine of $3,300 by 4pm on 1 July 2016.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – DISCIPLINARY PROCEEDINGS – REAL ESTATE AGENT – where new evidence allowed – where leave to appeal granted – whether sanction excessive in the circumstances

Property Agents and Motor Dealers Act 2000 (Qld), s 379, s 496, s 529, s 574,

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147

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 Hoppner [2014] QCAT 296

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 My House is Your House Pty Ltd (under external administration) & Carranza [2012] QCAT 326

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

Council of the City of Wollongong v Cowan (1955) 93 CLR 435

Pickering v McArthur [2005] QCA 294

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

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

APPEARANCES:

APPLICANT:

Ms Schouten appeared on her own behalf.

RESPONDENT:

Mr R Vize, in-house lawyer, appeared for the Chief Executive, Department of Justice & Attorney-General

REASONS FOR DECISION

Background

  1. [1]
    Janet Schouten was a licensed real estate agent. The Chief Executive, Department of Justice and Attorney-General filed a disciplinary referral and supporting material in the Tribunal on 16 February 2015 in respect of her conduct in managing residential properties for rent.
  2. [2]
    The disciplinary proceedings arose out of Ms Schouten applying for compensation from tenants in the Tribunal and improperly dealing with trust monies. The Chief Executive alleged that Ms Schouten falsified evidence at the Tribunal hearings. The improper dealing alleged related to Ms Schouten depositing $1980 into her general account when it should have been deposited into her trust account.
  3. [3]
    The Tribunal made directions for the filing of evidence and submissions, as well as a hearing on the papers (that is, without an oral hearing) not before 30 May 2015. Ms Schouten did not engage in the disciplinary proceeding. She did not file any evidence or make any submissions in the Tribunal, although the evidence filed by the Chief Executive in support of the referral contained material that Ms Schouten had provided to him. The Chief Executive did not file any further material, relying only on the material filed with the disciplinary referral.
  4. [4]
    The Tribunal heard the disciplinary referral on the papers. The Tribunal published its reasons for decision on 3 August 2015. Perhaps curiously, the Tribunal’s orders issued on 27 July 2015. That said, nothing turns on this inconsistency. The orders made were as follows:-
    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:

4:00pm on 5 October 2015.

  1. [5]
    Ms Schouten filed an application for leave to appeal and appeal. Her grounds of appeal, are not clearly articulated but, as we understand them, are as follows:

That the Tribunal made errors of fact or fact and law as follows:

  1. In finding that she did not cooperate with the Office of Fair Trading;
  2. In finding that she showed no insight and denies dishonesty into having incorrectly deposited the bond refund into her general account rather than her trust account;
  3. In relation to the deposit into her general account, in finding that she did so dishonestly;
  4. In finding that she has not repaid the amounts paid out by the claim fund as a result of her actions;
  5. In imposing a penalty that was excessive in the circumstances of 1-4 above.
  1. [6]
    In summary, Ms Schouten seeks orders to the effect that she not be disqualified from holding a license and that the fine imposed be reduced or ‘waived’. In particular, she submits that the fine amounts of $3,850 and $2,090 should be reduced/waived because she had repaid the amounts owing to the claim fund; and that the amount of $3,960.00 relating to improper dealing with trust account monies should be reduced/waived because this resulted from an honest mistake.
  2. [7]
    The Chief Executive opposes the application for leave to appeal and appeal. That said, his submissions acknowledge that Ms Schouten reimbursed the claim fund on 16 July 2015 in the amounts of $1,968 and $1,476.98. He concedes that the Tribunal was not advised of the reimbursements made. Further, the Chief Executive submits that the Tribunal made an error of law in finding that the maximum penalty in disciplinary proceedings was 540 penalty units as set out in s 574(1) of the (now repealed) Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMDA’). He concedes that the maximum penalty for disciplinary proceedings is contained in s 529 of the PAMDA and is 200 penalty units for each ground. That said, he submits that the Tribunal’s order does not exceed the correct maximum penalty applicable pursuant to s 529.
  3. [8]
    Both parties sought leave to rely upon evidence that was not before the original Tribunal at the time the decision appealed was made. Ms Schouten sought leave to rely upon documentation between herself and the Chief Executive to show she had repaid the amounts paid out by the claim fund. The Chief Executive sought leave to rely upon a copy of an order dated 28 August 2009 of the Commercial and Consumer Tribunal (‘CCT’) in a disciplinary referral (Application PD014-19) and copies of related documents (namely the referral and an affidavit of Kenneth Landers).

Leave to appeal and the appeal process

  1. [9]
    The function of the appeal process is correct error in the original decision made.
  2. [10]
    Here, the grounds of appeal are on questions of fact and mixed fact and law. Leave to appeal is required in respect of questions of fact and mixed fact and law.[1] Leave to appeal will usually only be granted where there is a reasonable argument that the decision is infected by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by the error.[2] For the reasons explained in the subsequent paragraphs, we accept that the learned member erred, and an appeal is necessary to correct substantial injustice to Ms Schouten. Under the QCAT Act,[3] we must decide the appeal by way of re-hearing.
  3. [11]
    Applications for leave to appeal and appeal are generally decided on the evidence before the original Tribunal, unless leave is granted by the Appeal Tribunal for a party to present new evidence. Leave may be granted, (as for the reasons later explained was granted here), where the evidence was not reasonably available at the hearing; had it been, an opposite result was likely and the new evidence is credible.[4]

The original Tribunal’s decision on the disciplinary referral

  1. [12]
    The Learned Member found that disciplinary grounds existed against Ms Schouten. His findings in relation to the disciplinary ground are not at issue.
  2. [13]
    In considering matters relevant to penalty the Member found Ms Schouten had:[5]
  • 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. [14]
    He quoted[11] from Ms Schouten’s submission dated 20 May 2014 to the Office of Fair Trading in which she said:[12]

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.

  1. [15]
    On that basis, the learned Member concluded that, ‘as recently as 14 months ago’, she ‘continued to deny any dishonesty and showed no insight into the gravity of her conduct’.[13] He further found[14] that she had ‘shown no remorse’; had ‘not cooperated with the Chief Executive or the Tribunal to minimise the incurring of public resources in these proceedings’; and that she had ‘not repaid the amounts owing to the Claim Fund from her acts of dishonesty’. He said specifically that her failure to properly receipt trust money was directly relevant to the protections the legislation was intended to provide.[15] He found that although the amounts of monies were not significant, the conduct was significant ‘because of its dishonesty’.[16]
  2. [16]
    He observed that trust account breaches and dishonest dealings ‘usually attract lengthy or permanent periods of disqualification’ (although he acknowledged that the cases usually involved substantial amounts of money or patterns of conduct over a substantial time-period). [17] He considered a number of previous disciplinary decisions where Real Estate Agents had misappropriated monies held in trust, including Chief Executive Department of Justice and Attorney-General v Faraj[18] (‘Faraj’) and also Chief Executive, Department of Justice and Attorney-General v My House is Your House Pty Ltd (under external administration) & Carranza[19] (‘Carranza’). He referred also to several other cases,[20] wherein the ill health of the agents’ spouses mitigated their disqualification to ten years for more significant trust account breaches.
  3. [17]
    Then in discussing The Chief Executive, Department of Employment, Economic Development and Innovation v Schellars[21] (‘Schellars’), he referred to the agent’s cooperation and absence of financial loss as a factor in mitigation, where a disqualification period of five years was imposed. Similarly with Chief Executive, Department of Justice and Attorney-General v Cameo Property Services Pty Ltd and Johnson[22] (‘Johnson’), where the agent cooperated fully and repaid the misused monies, he notes that her remorse and lack of intent were mitigating factors. He found that none of these mitigating factors applied in Ms Schouten’s case.
  4. [18]
    The learned Member found that Ms Schouten’s conduct which occurred in her capacity as an agent during the course of legal proceedings, was an aggravating factor, even though the amounts were comparatively small. He seems to have concluded that,[23] although the amounts were smaller than in the comparative decisions imposing disqualification periods of 10 years, the factors which would mitigate in order to reduce it to two to five years were not evident. He then concluded that for reasons of ‘proportionality and consistency[24] that the disqualification period should be between five years and ten years. He refers to Chief Executive, Department of Justice and Attorney-General v Grimsey[25] (‘Grimsey’), in which, the learned Member says, the agent was disqualified for 7 years for trust account breaches.
  5. [19]
    He says:[26]

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.

  1. [20]
    He also imposed a fine, as a deterrent to others who may consider offending.[27] He says:

The maximum fine is 540 penalty units for a false representation[28] and 200 penalty units for improperly dealing with an amount on receipt.[29] 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.[30]

  1. [21]
    In the next paragraph, he then found that Ms Schouten’s ‘failure to repay the ill gotten gains’,[31] and the need to deter both Ms Schouten and other persons from similar acts, relevant. He imposed separate fines for each course of conduct involving the Tribunal proceedings, in particular, fines of twice the amount wrongfully gained on each occasion, but rounded down the nearest penalty unit. The fines imposed were $3,850.00 (35 penalty units) in respect of the first of the Tribunal proceedings, and $2,090.00 (19 penalty units) in the second Tribunal proceedings.
  2. [22]
    Further, he considered it appropriate to impose a fine in respect of the deposit of trust account monies into the general account, in the amount of twice the amount of the monies improperly dealt with, rounded down to the nearest penalty unit, or a fine of $3,960.00 (36 penalty units).
  3. [23]
    Accordingly, he fixed the total penalty at $9,900.00.

The applications for leave to present new evidence

  1. [24]
    Ms Schouten sought to rely upon evidence to show that she had repaid the amounts paid out by the claim fund. Because the Chief Executive had not filed updated material to advise that Ms Schouten had repaid in full the amounts paid out by the claim fund, the Tribunal had made findings that Ms Schouten had not done so. The Tribunal considered this an aggravating factor and found that Ms Schouten had no mitigating factors.
  2. [25]
    The Appeal Tribunal considered that Ms Schouten’s application for leave to present new evidence in relation to this matter should, in principal, be allowed, subject to Ms Schouten providing the particular documents relied upon. However, it became unnecessary for her to provide the documents because the Chief Executive acknowledged that the monies had been repaid (and that he had not, but should have), provided those documents to the Tribunal. He conceded that there had been bona fide ongoing attempts by Ms Schouten to resolve the outstanding monies, culminating in the lump sum payment by her of the amount. On that basis, during the hearing, we granted Ms Schouten leave to present new evidence by way of that concession made by the Chief Executive.
  3. [26]
    Further, the Chief Executive sought leave to rely upon documentation in relation to previous disciplinary proceedings in the Commercial and Consumer Tribunal (‘CCT’) against Ms Schouten. Again, this evidence should have been provided by the Chief Executive in the original Tribunal proceedings, but it was not, apparently having only come to the Chief Executive’s attention. Ms Schouten raised no objection to this further evidence being considered in the appeal proceedings, on the basis of a concession made by the Chief Executive that she had complied fully with the orders of the CCT. Because disciplinary proceedings are held to protect the public interest, notwithstanding that this evidence was reasonably available at the time of the hearing, we concluded that leave should be granted for it to be presented and relied upon by the Chief Executive in this application for leave to appeal and appeal.
  4. [27]
    On that basis, during the hearing, we granted leave for both the CCT documentation,[32] and the further concession of the Chief Executive in relation to Ms Schouten’s compliance with the CCT orders to be presented by way of new evidence.

The alleged errors of fact and mixed fact and law

The finding that Ms Schouten failed to cooperate with the Chief Executive

  1. [28]
    The Tribunal’s finding that Ms Schouten’s failed to cooperate with the Chief Executive[33] is not borne out in respect of the repayment of the amounts paid by the claim fund in light of the concession made and allowed in new evidence. The Chief Executive submitted that despite repaying the amounts paid out by the claim fund, a failure to cooperate was borne out because Ms Schouten had failed to submit to a requested interview.[34]
  2. [29]
    However, on 20 May 2014 Ms Schouten responded to the correspondence containing the request. The Chief Executive’s correspondence[35] was over 3 pages in length, and canvassed a variety of issues, not simply the request for an interview. Ms Schouten’s reply did not specifically respond to the request for an interview, but it concluded with ‘if you require any further information please do not hesitate to contact me’. The Chief Executive’s file does not suggest that there was a further contact about an interview.
  3. [30]
    The concession from the Chief Executive which has been allowed into evidence before the Appeal Tribunal that Ms Schouten did cooperate in respect of the repayment of the monies, does tend to suggest a significant degree of cooperation with the Chief Executive. So too, does the documentation that was before the Tribunal containing numerous pieces of correspondence between the Chief Executive and Ms Schouten.
  4. [31]
    Also, the Tribunal specifically found that Ms Schouten had not repaid the amounts owing to the Claim Fund, when she had done so.
  5. [32]
    Putting aside the new evidence, and notwithstanding that she did not participate in the Tribunal proceedings, the evidence that was before the learned Tribunal member does not support a finding that Ms Schouten had not cooperated with the Chief Executive. The new evidence makes her cooperation clearer again. Accordingly, we are satisfied that the Tribunal erred.
  6. [33]
    On rehearing, we are satisfied that Ms Schouten cooperated with the Chief Executive and repaid the monies paid out by the claim fund. We do not accept that she failed to submit to an interview. She provided information and invited follow-up from the Chief Executive. If an interview was still required (in light of the information provided), the Chief Executive should have contacted her to arrange it. He did not.

The alleged errors in finding that Ms Schouten showed no insight into having incorrectly deposited the bond refund into her general account and denied her dishonesty

  1. [34]
    The Tribunal specifically quotes[36] Ms Schouten’s comments from her letter of 20 May 2014 wherein she said that she had not been aware that that monies had been incorrectly deposited into the general account, and that when the accountant audited her trust account in September, that it had not been mentioned. The learned Tribunal member found that ‘This means that as recently as 14 months ago’, she ‘continued to deny any dishonesty’ and that Ms Schouten showed no insight into the gravity of her conduct. In making this finding, it is clear that the learned Member referred to all of the relevant conduct the subject of the disciplinary charges, even though Ms Schouten’s comments as quoted related only to the trust account breach.
  2. [35]
    Dishonesty was not an aspect of the charge relating to the deposit of monies into the general account in error. Nor do Ms Schouten’s comments as quoted suggest a lack of insight into the incorrect depositing into the general account. They are to the effect that she had been unaware of it until it was raised. Yet, irrelevantly and contrary to the evidence, the learned Member found that she denied dishonesty related to it. We are satisfied that the evidence supports a finding that the deposit to the general account was a mistake honestly made.
  3. [36]
    Therefore, we are satisfied that the Tribunal found in error that Ms Schouten denied dishonesty regarding the charges other than the trust account breach. She denied dishonesty only concerning the trust account breach in respect of which dishonesty is not alleged or borne out on the evidence. She accepts that she deposited the monies incorrectly into her general account, rather than her trust account, in error. We make findings to this effect.
  4. [37]
    The findings of dishonesty about the other charges, relating to falsification of invoices and giving of false evidence, are not challenged by Ms Schouten.

The alleged error that Ms Schouten had not repaid the amounts owing because of payments made by the claim fund

  1. [38]
    As discussed earlier, the Learned Member found that Ms Schouten had not repaid the amounts owing to the Claim Fund. However, it is now conceded that she had done so, but the Chief Executive had failed in his duty as a model litigant to inform the Tribunal of the repayment.

The alleged error of the Tribunal in imposing a penalty that was excessive in the circumstances

  1. [39]
    The learned Member imposed a disqualification period of 7 years and fines totalling $9900. Further, the learned Tribunal Member, in imposing a fine, mistakenly understood that the maximum number of penalty units that may be imposed was 540, when it was 200.
  2. [40]
    The learned Member’s finding that there were no mitigating factors was in error. Having regard to the matters identified in the preceding paragraphs, the evidence supports a finding that Ms Schouten had some mitigating factors, namely that the amount paid by the claim fund had been repaid; that she had co-operated with the Chief Executive; and that she accepted her error in relation to the trust account issue. Further, in imposing a fine, he erred in considering the fine in the context of a maximum fine of 540, rather than 200.
  3. [41]
    In all of those circumstances, the Appeal Tribunal concluded that the learned Member erred as to questions of fact, and mixed fact and law, and that leave to appeal must be granted to correct a substantial injustice to the Applicant caused by the errors.

The re-hearing on the question of penalty in light of our findings

  1. [42]
    The Chief Executive submits that disqualification remains appropriate because Ms Schouten has not meaningfully addressed the dishonest conduct, and does not challenge the findings made in relation to it. He submits that it was repetitive and persistent conduct because Ms Schouten continued with the proceedings in the Tribunal and was successful in obtaining monetary orders from the Tribunal. That said, as the Learned Member found, Ms Schouten’s misconduct occurred over a relatively short period.[37] The Chief Executive further submits that the aim of PAMDA is to protect the public and that the behaviour of Ms Schouten brought real estate agents into disrepute. He submitted that Ms Schouten’s failure to address the dishonest conduct was evidence of a lack of remorse.
  2. [43]
    Ms Schouten submits that disqualification is not appropriate as she is unable to earn an income. She submits that an order whereby she is able to obtain a licence as a sales person, rather than as a licensee, is appropriate. The Chief Executive submits the latter would be inappropriate as there is not a different standard of honesty required of sales persons, rather than licensees.
  3. [44]
    The Chief Executive concedes that because Ms Schouten had repaid the amounts owing to the claim fund, that the amount of fine may be excessive. Further, in respect of the fine imposed in respect of the improper dealings with trust account monies, the Chief Executive concedes that it is a less significant disciplinary ground and that the penalty may be excessive. He submitted that proportionality was appropriate. The Chief Executive accepts that the maximum fine is 200 penalty units, but submits that a fine of $9,900.00 could be justified in light of the seriousness of the misconduct.
  4. [45]
    Ms Schouten submits that because she no longer holds a licence she has no income and cannot pay a fine. Further, she submits that the fine imposed should not be double the amounts concerned, in view of the fact that she had paid back the amounts claimed from the claim fund and did not dishonestly deposit the funds into her general account.
  5. [46]
    The Chief Executive submits that her previous disciplinary proceedings are relevant in considering the penalty to be imposed. Ms Schouten submits that those matters have all been dealt with and complied with the orders and therefore it should not affect the outcome.
  6. [47]
    In Ms Schouten’s previous disciplinary proceedings, the CCT’s orders made upon her admissions of the disciplinary charges, were to the effect that she pay a penalty of $6,000.00, costs in the sum of $250.00 and successfully complete a course of study approved by the Chief Executive in trust accounting.
  7. [48]
    The particulars of the charge[38] reveal that she was obliged to have her trust account audited annually and lodge the audits within the four months from the end of the respective audit periods. She failed to lodge audit reports for several audit periods. Although there were some issues identified when the audits were done, they were of a technical nature, rather than dishonestly inappropriate transactions. Further, Ms Schouten had been trading unlicensed for a period. However, this resulted from a deemed withdrawal of her application to renew her licence, because of some incomplete information in her application for renewal. Accordingly, again, it was an isolated breach of a technical nature, not involving dishonesty.
  8. [49]
    In the current disciplinary proceedings, Ms Schouten’s behaviour in falsifying invoices and giving false evidence under oath to the Tribunal is more serious misconduct, and more serious also than the conduct relating to erroneously depositing of trust monies into her general account. She misled the tenants she dealt with, and she deliberately mislead the Tribunal. This behaviour is a breach of the confidence reposed in her as a real estate agent to maintain a high standard of professional practice and procedure. It flies in the face of the aims of the legislation to protect consumers in their dealings with real estate agents. This behaviour, because it involves dishonest behaviour in the Tribunal, also attacks the integrity of the administration of justice. Further, Ms Schouten has not made admissions about her behaviour in the Tribunal proceedings. That said, she cooperated with the Chief Executive and repaid the monies paid out by the claim fund.
  9. [50]
    The incorrect receipting of monies into the general account rather than the trust account is not insignificant, but there is no dishonesty evident or alleged, and the amount concerned was small. In relation to this aspect of the charges, we are satisfied that Ms Schouten acknowledged and accepted that she made the error alleged, at least by the time of her correspondence on 20 May 2014.
  10. [51]
    Ms Schouten has some mitigating circumstances which must be taken into account. She has repaid the monies paid out of the claim fund. She acknowledges and accepts her mistake in mistakenly paying into her general account an amount that was required to be deposited into her trust account. She has cooperated with the Chief Executive.
  11. [52]
    The comparative cases referred to by the learned Member which concerned trust account breaches involved circumstances when funds were deliberately put into the agent’s general account;[39] often the sums placed in general accounts dishonestly involved considerably larger sums of money;[40] and significantly, in some circumstances, the funds were used to run the agent’s business.[41] Some occurred over extended timeframes.[42] In one case, where no dishonesty was involved, breaches were numerous, and the actions of the agent (who demonstrated no insight) were found to be incompetent.[43] In Grimsey, upon which the Member appears to place particular reliance in concluding that 7 years is appropriate, the disciplinary grounds accepted by the Tribunal were numerous. They included acting as a real estate agent (unlicensed) and/or pretending to be a real estate salesperson over several extended time periods; wrongful conversion and false accounts; and unsuitability to hold a licence. Mr Grimsey’s conduct was considerably more extensive and over a protracted period (and therefore more serious) than in Ms Schouten’s case.
  12. [53]
    We consider two of the previous Tribunal decisions to be the most helpful in deciding the sanction imposed. In Johnson, a total of $31,759.80 was withdrawn over a number of months from a trust account without authority and used to pay business expenses. Ms Johnson had repaid the funds at the time of the hearing. She was disqualified for two years and ordered to pay $1074.37. In Schellars, $42,239.50 was improperly transferred in numerous and repetitive contraventions in 23 separate transactions throughout 2008. Ms Schellars was disqualified for 5 years and ordered to pay a fine of $5000.
  13. [54]
    Here, the trust account breach was an honest and isolated mistake involving a small amount of money. In Ms Schouten’s circumstances, it would not warrant disqualification. The amounts which were the subject of Ms Schouten’s dishonesty in Tribunal proceedings, were again small. That said, despite the repayment of monies paid out of the claim fund and Ms Schouten’s cooperation with the Chief Executive, her dishonesty was sustained (firstly, in filing the claims and then subsequently proceeding with them and acting dishonestly in doing so). Even at this late stage, she has not directly acknowledged it, although repayment of the monies paid from the claim fund and her failure to challenge it in this appeal may suggest some indirect acknowledgment. A period of disqualification is warranted.
  14. [55]
    Ms Schouten’s behaviour is more serious than the behaviour in Johnson, because although it extended over a similar period, her dishonesty in Tribunal proceedings impacts on the administration of justice, as well as the trust reposed in real estate agents. It is not more serious than the protracted dishonesty of the agent in Schellars. The amounts concerned are, in both of those cases, much larger than those involved in Ms Schouten’s transgressions. In all of the circumstances, we have concluded that a period of disqualification of 3.5 years should be imposed on Ms Schouten.
  15. [56]
    We are satisfied that the imposition of a fine is also warranted by way of deterring Ms Schouten from similar behaviour in the future, as well as, general deterrence. We have had regard to the nature and seriousness of the transgressions involved in the Tribunal proceedings and her repayment of the monies paid by the claim fund. In respect of the trust account breach we take into account that it does not involve dishonesty nor incompetence and is an isolated incident. We are satisfied that a fine which is roughly equivalent to the total of the amounts involved in the Tribunal proceedings is appropriate. Accordingly, we impose a fine of 30 penalty units, or $3300. We do not find it appropriate in these circumstances to impose a separate fine for trust account breach.

Orders

  1. [57]
    We make orders granting leave to appeal, setting aside the Tribunal’s decision and substituting our own decision in accordance with the findings set out in these reasons.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 142(3)(b).

[2]Pickering v McArthur [2005] 2 CA 294.

[3]  QCAT Act, s 147.

[4]Council of the City of Wollongong v Cowan (1955) 93 CLR 435.

[5] The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [9].

[6]  PAMDA, s 574(1).

[7]  Ibid, s 496(1)(d).

[8]  Ibid, s 574(1).

[9]  PAMDA, s 496(1)(d).

[10]  Ibid, s 379(a).

[11]  Reasons for decision at [11].

[12]  Affidavit of Craig Gerard Moffat sworn 5 February 2015, Annexure B “OFT19”.

[13] The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [12].

[14]  Ibid, para [13].

[15]  Ibid, para [14].

[16]  Ibid, para [15].

[17]  Ibid, para [16].

[18]  [2011] QCAT 640.

[19]  [2012] QCAT 326.

[20]Chief Executive, Department of Justice and Attorney-General v Sheppard [2012] QCAT 164; Chief Executive, Department of Justice and Attorney-General v Hiltdeen Pty Ltd (under external administration) and Lloyd [2012] QCAT 430.

[21]  [2010] QCAT 477.

[22]  [2012] QCAT 509.

[23]The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [19].

[24]  Ibid.

[25]  [2015] QCAT 1.

[26]  Ibid, para [21].

[27] The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [22].

[28]  PAMDA, s 574(1).

[29]  Ibid, s 379(a).

[30] 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].

[31] The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [23].

[32]  Exhibit 1.

[33]The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [13].

[34]  Affidavit of Craig Gerard Moffat sworn 5 February 2015, Annexure B “OFT18”.

[35]  Ibid.

[36]  Reasons for decision [11].

[37]The Chief Executive, Department of Justice and Attorney-General v Janet Schouten Real Estate [2015] QCAT 307, para [16].

[38]  Exhibit 1.

[39] Carranza where $68,000 was misappropriated and Mr Carranza was convicted of fraud and sentenced to two years jail, wholly suspended. He was permanently disqualified but no fine was imposed.

[40]  Ibid; and Johnson where a total of $31,759.80 was withdrawn over a number of months from the trust account without authority and used to pay business expenses. Ms Johnson had repaid the funds at the time of the hearing. She was disqualified for two years and ordered to pay $1074.37. Schellars where $42,239.50 was improperly transferred in numerous and repetitive contraventions in 23 separate transactions throughout 2008. Ms Schellars was disqualified for 5 years and ordered to pay a fine of $5000.

[41]Johnson: See ibid.

[42]Schellars.

[43] Faraj where the agent was convicted of failures to comply with the Residential Tenancies legislation (including where bond monies were not paid to the proper authority) and failing to properly supervise an employee, resulting in numerous payments from the claim fund, where the agent demonstrated not insight. The agent was permanently disqualified and ordered to pay a fine of $2250 and costs of $510.

Close

Editorial Notes

  • Published Case Name:

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

  • Shortened Case Name:

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

  • MNC:

    [2016] QCATA 95

  • Court:

    QCATA

  • Judge(s):

    Senior Member Endicott, Member Howard

  • Date:

    16 Mar 2016

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.