Berceanu v Boltons Real Estate Pty Ltd
[2004] QDC 18
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- Unreported Judgment
- Berceanu v Boltons Real Estate Pty Ltd[2004] QDC 18
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Berceanu v Boltons Real Estate Pty Ltd[2004] QDC 18
Berceanu v Boltons Real Estate Pty Ltd[2004] QDC 18
DISTRICT COURT OF QUEENSLAND
CITATION: | Berceanu v Boltons Real Estate Pty Ltd & Ors [2004] QDC 018 |
PARTIES: | NIKOLAUS PETER BERCEANU Complainant/Respondent v BOLTONS REAL ESTATE PTY LTD Defendant/Appellant NIKOLAUS PETER BERCEANU Complainant/Respondent v STEPHEN DAVID KIDD Defendant/Appellant NIKOLAUS PETER BERCEANU Complainant/Respondent v ANNA LIN Defendant/Appellant |
FILE NO/S: | Appeal 1, 2 and 3 of 2003 MAG00192610028; MAG00192648025; MAG00192680026 |
DIVISION: |
|
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Maryborough |
DELIVERED ON: | 13 February 2004 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 18 July 2003 |
JUDGE: | McGill DCJ |
ORDER: | Appeals allowed in part. In appeal 1, recording of conviction set aside, sentence otherwise confirmed. In appeal 2, recording of conviction and payment of fine set aside, period of default imprisonment reduced to six weeks, sentence otherwise confirmed. In appeal 3, sentence varied by deleting order for compensation, adding order that registration be cancelled, and reducing period of default imprisonment to three weeks, sentence otherwise confirmed. |
CATCHWORDS: | PRINCIPAL AND AGENT – Statutory Provisions relating to agents – real estate agent – registered employee obtaining beneficial interest – whether appropriate to order compensation. CRIMINAL LAW – Compensation –real estate agent – whether appropriate to order a refund of commission. CRIMINAL LAW – Sentence – recording a conviction – whether discretion miscarried. R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 applied. |
COUNSEL: | R J Clutterbuck for the appellants A Ross (solicitor) for the respondent |
SOLICITORS: | Suthers Lawyers for the appellants Crown Solicitor for the respondent |
- [1]On 12 February 2003 three complaints alleging offences under the Property Agents and Motor Dealers Act 2000[1] (“the Act”) came before the Magistrates Court at Maryborough. The complaint against Boltons Real Estate Pty Ltd (“the company”) charged an offence under s 133(1) of the Act, that it “was asked by a client to perform an activity for [her] and had acted for the client without that client first appointing that agent in writing under this section.” The second complaint, against Mr Kidd, appears to allege the same offence by him. The third complaint, against Ms Lin, alleged an offence under s 145(3) of the Act, that she being a real estate salesperson employed by a real estate agent obtained a beneficial interest in a property placed by a client with the real estate agent for sale. The defendants appeared and pleaded guilty to each charge.
- [2]In the case of the company a conviction was recorded, it was fined $1,000 and ordered to pay costs of court of $62.10, and allowed three months to pay. In the case of Mr Kidd a conviction was recorded, he was fined $1,000 and ordered to pay costs of court of $62.10, and to pay compensation to the client in the sum of $2,612.50, all the payments to be made within three months in default imprisonment for two months. In the case of Ms Lin, a conviction was recorded, she was fined $1,000 and ordered to pay costs of court of $62.10, and to pay “restitution” in the sum of $9,000 to the client, all payments to be made within 12 months, in default imprisonment for six months. In addition, under s 592(2) of the Act she was disqualified from registration as a salesperson for a period of six months.
- [3]All three have appealed to this court. The company appealed on the ground that the facts did not disclose an offence against the Act, or in the alternative the penalty was excessive in the circumstances. Mr Kidd also appealed on the grounds that the facts did not disclose an offence against the Act, and that the penalty was excessive in the circumstances. Ms Lin appealed on the ground that the complaint did not disclose an offence against the Act, that the facts presented to the court were not those upon which the plea of guilty was based, and that the penalty imposed was excessive in all the circumstances.
Background
- [4]There are really two aspects of wrongdoing involved in relation to these matters. Briefly what happened is that Mr Kidd was a licensed real estate agent and the agent in respect of the company which held a corporate licence under the Act.[2] Ms Lin was a registered employee working as a salesperson. On 20 December 2001 a Ms Lacy, an elderly woman, signed an appointment of the company to act as real estate agent in respect of the sale of her home. The form used was one approved by the Real Estate Institute of Queensland and one which complied with the requirements of the Auctioneers and Agents Act, as at June 1993. It was however not the approved form required by s 134(1) of the Act, and it did not include the prominent statement that the client should seek independent legal advice before signing the appointment,[3] required to be included in the form by s 134(2). Because it was not in the approved form, the appointment was “ineffective” – s 134(3) – and therefore presumably its existence is to be disregarded when considering whether the agent has committed an offence under s 133(1) of the Act, which provides: “A real estate agent who is asked by a person (‘client’) to perform an activity (‘service’) for the client must not act for the client unless the client first appoints the agent in writing under this section.”
- [5]Soon after the property was listed, Ms Lin introduced her parents to the property, and showed them through it. They were interested, and ultimately made an offer and a contract was signed by Ms Lacy to sell the property to them for a price of $77,000. Prior to signing the contract Ms Lacy did not provide a written acknowledgement in the approved form that she was aware that Ms Lin was interested in obtaining a beneficial interest in the property and consented to her obtaining that interest. In addition, the company charged commission on the sale, at the agreed standard rate, which came to $2,612.50.
- [6]Section 145 of the Act provides relevantly:
“(1) This section applies to property placed by a person (‘client’) with a real estate agent for sale, but does not apply if s 144 applies.
…
- (3)A real estate salesperson employed by the real estate agent commits an offence if the salesperson obtains a beneficial interest in the property.
Maximum penalty – 200 penalty units or three years imprisonment.
- (4)A person does not contravene subsections (2) or (3) if –
- (a)the person –
- (i)before a contract for the sale of the property is entered into, obtains the client’s written acknowledgement in the approved form that the client –
- (A)is aware that the person is interested in obtaining a beneficial interest in the property; and
- (B)consents to the person obtaining the interest; and
- (ii)acts fairly and honestly in relation to the sale; and
- (b)no commission or other reward is payable in relation to the sale; and
- (c)the client is in substantially as good a position as the client would be if the property were sold at fair market value.”
- [7]The term “beneficial interest” is defined widely in s 13 of the Act. In subsection (2), a registered employee is taken to have a beneficial interest in property in various cases, including (case 1) where “the purchase or sale of the property is made for the registered employee or an associate of the employee.” The term “associate” is defined to include a parent. Although this provision could be expressed more clearly, it does seem to be wide enough to include a case where the property is sold to a parent of a registered employee. If the parents purchased the property for themselves, it was purchased for them, and hence for an associate of the employee, so the purchase of the property was made for the associate of the employee, so the employee is taken to have a beneficial interest. It follows that Ms Lin, as a registered employee employed by the agent with whom Ms Lacy had placed her property for sale, committed an offence under subsection (3) because her parents purchased the property. That consequence would have been avoided if the requirements of subsection (4) had been complied with, but they were not.
Appeal by the company
- [8]When the matter came on before me the only issue pursued by the company was that the penalty was excessive because of the recording of a conviction. It was accepted that the company committed an offence under s 133(1), and that appears to me to be clearly correct. Some of the submissions made in the written outline on behalf of the appellant appear to be based on the proposition that it was necessary for the section creating the offence alleged to be identified expressly in the complaint. It is clear however that there is no such requirement: see s 47(1) of the Justices Act, Pusey v Wagner [1922] St R Qd 181. Personally, I think this is a pity. It would certainly be easier for the people concerned, including judges hearing appeals under s 222, if the Act and the section a breach of which was alleged by the complainant were identified in the complaint by the complainant.
- [9]It was not disputed before me, or indeed before the magistrate, that as a consequence of the failure to obtain an appointment in writing in the approved form the company was not entitled to retain any reward for the performance of any activity as a real estate agent, relevantly for selling the property because it had not been properly appointed under Division 2 of Part 2 of Chapter 5 of the Act: s 140. Accordingly Ms Lacy would have been entitled to recover the amount retained as commission by the company out of the deposit received by it which became payable to the client when the transaction settled: Meier v Wardell [1924] QWN 19. It was therefore convenient[4] that an order for compensation be made to reflect this civil liability: R v Ferrari [1997] 2 Qd R 472 at 477.
- [10]With regard to the question of whether a conviction should be recorded, this is dealt with by s 12 of the Penalties and Sentences Act 1992, which sets out the relevant considerations in subsection (2). The various factors relevant to the exercise of the discretion were considered in some detail in R v Briese; ex parte Attorney-General [1998] 1 Qd R 487. Where a conviction might be relevant to the grant of some licence or approval, it is not appropriate to exercise the discretion simply to conceal from some relevant authority matters which ought to be known by it: R v Beissel (1996) 89 A Crim R 210 at 212. As the majority pointed out in Briese (supra) at 492, however, this does not mean that a court must not grant an offender the benefit of non-recording of a conviction whenever it is likely that the offender might come before such an authority. In my opinion the discretion should not be distorted either way because of this consideration, although it is relevant to bear in mind this aspect of the public significance of the decision.
- [11]I am not aware of any guidance from the Court of Appeal as to how the discretion should be exercised in circumstances where the offender is a corporation. On the face of it s 12 would apply to a corporation, although some of the matters referred to in s 12(2) are not readily applicable if the offender is a corporation. A corporation does not have social wellbeing, and is not concerned with finding employment. It may well have economic wellbeing, but that significance is particularly likely to relate to some authority concerned with some licence or approval. The age of a corporate offender is also of less significance, and in my opinion is really of relevance only insofar as it is a measure of the significance of an absence of other criminal convictions, or the number of such convictions.
- [12]In the present case, the company had no other convictions under this or any other Act. Insofar as a company may have a good character, it had one. There is also the consideration that the offence was, if not trivial, at least minor. The important part of a requirement that the retainer of a real estate agent be in writing is to ensure that the terms of the engagement are properly recorded, in a way which hopefully will not give rise to later disputes. The use of the old form was sufficient to achieve that.
- [13]I have looked at both forms. The most obvious difference is that the approved form under the Act is much larger, running to nine pages. Partly this is because it contains matters which were not included in the earlier document, such as one page description of the property which is achieved essentially by ticking or numbering various printed features. Some aspects of the terms of the retainer are also dealt with on a “tick a box” basis, and to some extent the form gives advice to the client on various matters. It solemnly informs the client that there is a right to negotiate an amount lower than the maximum amount permitted by the regulation under the Act; my understanding is that this is something which real estate agents never accept. It also contains the warning required by s 134(2) to which I referred earlier, in a prominent position at the top of the first page.
- [14]Overall it is a more intimidating document, but will provide more information to a client who reads it carefully, and may well assist in the formulation of a precise contract of retainer, in a way which may well diminish the opportunity for legal disputes between the parties later. Although ostensibly the Act is concerned with the form of the document, in substance in this way the government prescribes the terms in which real estate agents are retained. I think it is fair to say that the new form contains a good deal which is not included in the document signed by the client on this occasion, so it was not the case that the form used in substance covered everything in the new form. Accordingly the offence was not simply technical, but nevertheless in circumstances where there had been a written contract of retainer entered into it was plainly less serious than if there was no document at all.
- [15]There is also the consideration that the offence in a sense carries an automatic penalty, in that the ability to retain the commission is lost because of the operation of the sections referred to earlier. This is a matter of some significance, so there is likely to be a strong incentive for agents to use the correct form even apart from the existence of any criminal sanction.
- [16]It was submitted for the respondent that if a conviction was not recorded the conviction could not trigger disciplinary action under s 496(1)(a), which identifies as one of the grounds for starting a disciplinary proceeding that the licensee has been convicted of an offence against the Act. On the other hand, s 496(1)(b) permits a disciplinary proceeding if the licensee or employee has “contravened this Act, including a code of conduct.” Unless this is simply the product of bad drafting, which is possible, it appears that the legislature has deliberately authorised disciplinary proceedings against a licensee or employee who has contravened the Act, even if not “convicted” of an offence against the Act. As appears from the definition in Schedule 3, “convicted” does not include a conviction if no conviction is recorded by the court. It seems to follow that there can be disciplinary proceedings whether or not the conviction is recorded. That reduces the significance of the argument that there is some public interest in recording a conviction, although it seems to me that the argument is theoretical anyway because I would consider that, in view of the penalties already imposed, it would be inappropriate for there to be any further disciplinary proceedings against the company arising out of this offence. I would not consider that the use of the wrong form on this occasion would be enough alone to justify disciplinary proceedings, and it appears to be common ground that there have been no other convictions of the company for breaches of the Act.
- [17]The magistrate gave no reason for the decision to record the conviction, although that may well be because it does not appear that the question of recording a conviction was the subject of any particular debate before him. When the issue was raised on appeal however, the respondent did not suggest that he was in any way prejudiced by the failure to raise the issue in the course of the hearing, or that the sentence hearing might have been conducted differently if the issue had been raised then, so I will not refuse to entertain the point for the first time on appeal.
- [18]It seems to me that the significant factors here are that this was a relatively minor offence, the company had no previous convictions for this or indeed any offence under the Act or otherwise, the company had pleaded guilty at the earliest opportunity, the company was going to suffer a significant detriment anyway because of the need to repay the commission, and pay a fine as well, and not recording a conviction would not necessarily prevent disciplinary action if the appropriate authorities thought it necessary, although it does not seem to me that it is an appropriate case for any disciplinary action arising out of the use of the incorrect form. In all these circumstances, notwithstanding that the offender was a company, in my opinion the proper exercise of the discretion under s 12 is for a conviction not to be recorded.
- [19]An appeal against the recording of a conviction is an appeal against the exercise of a discretion, and subject to the usual restrictions that involves. In the present case however where the matter was not raised in argument before the magistrate, and where the magistrate has given no reasons for the recording of the conviction, I think an appeal court will more readily interfere, particularly if it appears clear that a conviction ought not to have been recorded. Accordingly I will vary the sentence imposed by directing that a conviction not be recorded.
Appeal by Mr Kidd
- [20]It is clear that the facts do not support the proposition that Mr Kidd committed an offence under s 133(1) of the Act. The real estate agent who was asked by the client to perform the activity was not Mr Kidd but the company, and therefore Mr Kidd did not commit the offence under s 133. That appeared to be accepted on appeal by the respondent, who however submitted that he had committed an offence under s 591(2), a provision which effectively means that because the corporation committed the offence each of the executive officers of the licensed corporation automatically committed the offence of failing to ensure that the corporation complied with the provision.
- [21]Had this matter been raised before the magistrate therefore the respondent would presumably have been given leave to amend the complaint to allege instead a charge under s 591. The appellant would have had no defence to that complaint. However that course was not followed below; rather the appellant pleaded guilty to the charge as laid. In these circumstances, it follows from s 222(2)(e) of the Justices Act that an appeal will lie only on the ground that the fine, penalty, forfeiture or punishment is excessive. This is consistent with the general rule that matters cannot be raised for the first time on appeal when, had they been raised at the trial, they could have been dealt with by the other party. Even if there is some residual jurisdiction to prevent a clear miscarriage of justice, as suggested by the President in Puschenjak v Wade [2002] QCA 190 at p. 6, this is not a case to exercise that jurisdiction, in circumstances where the defect in the complaint is that it alleged an offence under the wrong section.
- [22]Nevertheless, in that case the Court of Appeal did not criticise the actions of the District Court judge who, when hearing the appeal under s 222, had taken into account that the facts relied on did not support the charge to which the appellant had pleaded guilty in determining the appeal as to sentence, and had varied the sentence so that no conviction was recorded and the appellant was discharged absolutely. That is not as good as having the conviction quashed, but it is the next best thing.
- [23]In the present case however the matter is not so simple, because the facts show that the appellant was guilty of a different offence. It is important however to avoid in effect punishing the appellant twice for the same offence. No doubt a provision like s 591 was inserted in the Act to avoid the risk that any penalty would be imposed only on a corporate licensee which was without means, and to deal with the possibility that it would be more just for the punishment to fall on the executive officer of the company rather than the company itself. If the corporate agent is owned by persons other than the executive officer, then in substance different people are being punished for different offences. But if the corporate licensee is a company not just controlled but owned beneficially by the executive officer, punishing both him and the company means in effect that he is being punished twice for what is essentially the same criminal conduct. It may well be that strictly speaking both he and the company are liable to conviction for the respective offences, but where there is a close identification between the executive officer and the corporate licensee, in my opinion it is inappropriate for a substantial penalty to be imposed on both.
- [24]In the present case it is not very clear to what extent Mr Kidd is beneficially interested in the company, but apparently it is part of a family business which was established a long time ago by Mr Kidd’s grandmother. In all the circumstances however and bearing in mind the nature of the offence was discussed earlier, I do not think it was appropriate that both he and the company be fined in relation to the offence. In addition the reasons referred to earlier for not recording a conviction apply more strongly in his case, because as an individual some of the features referred to in s 12, not available in the case of a corporate defendant, are available in his case.
- [25]It follows that in his case I would allow the appeal for the purpose of varying the sentence so as not to record a conviction, and not to impose a fine. I would however continue to order that compensation be paid. It could perhaps more appropriately have been paid by the company rather than by Mr Kidd, in circumstances where there is no particular reason to think that the company would not be good for the money, but the order for compensation can be made against someone other than the person who obtained the benefit, and, given that the conviction is going to stand, it will support an order for compensation, just as a conviction of an offence under s 591 of the Act would have supported an order for compensation. Accordingly I will not interfere with the order for compensation.[5]
The appeal by Ms Lin
- [26]The principal matter pursued in relation to this appeal was the order for compensation in the sum of $9,000. That was evidently calculated by taking the difference between the listing price of $85,000 and what was said to be the sale price of $76,000: p. 3. However at p. 10 the solicitor for the appellant told the magistrate that the contract price was actually $77,000. It does not appear that the contract was in evidence, but according to the retainer commission was payable at the rate of five percent on the first $18,000 and two point five percent thereafter, plus GST, and commission calculated on that basis on the purchase price of $77,000 comes to $2,612.50, the amount alleged to have been paid in the present case. That provides significant support for the proposition that the contract price was in fact $77,000, and in the absence of evidence to support the contention on behalf of the complainant the magistrate ought to have accepted the figure put on behalf of the defendant. I accept that the contract price was $77,000.
- [27]Apart from this however it is not meaningful to talk of the loss suffered by the client by reference to the difference between the contract price and the price at which the property was to be listed. Subject to the question of commission, the loss must be the difference between what it was sold for and what it would have been sold for had it not been sold to the appellant’s parents, that is, the market price of the property. There was no evidence of what that was before the magistrate. The appellant sought leave on the hearing of the appeal to lead evidence from a valuer that the market value of the property at the relevant time was $79,000.[6] On the hearing of the appeal the respondent did not oppose the receipt of this further evidence, and did not dispute that the market value of the property in question was as set out in that valuation. It follows that prima facie the client was only $2,000 worse off as a result of this sale.
- [28]The matter is complicated by the fact that under s 145(4)(b) the offence is not committed if no commission is payable in relation to the sale. It was submitted that no amount was paid in relation to the sale specifically to the appellant, but plainly that is not what the provision means. In the present case commission was deducted from the amount of the deposit received by the company before the balance was paid to the client, so that in effect the client paid the agent commission in relation to the sale. It followed that subsection (4)(b) was not satisfied. That must refer to commission or other reward payable by the client to the agent, because that is the only payment that the client would make. It would only have been satisfied if the client had not paid any commission to the company in relation to the sale.
- [29]Reference may also be made to subsection (4)(c), the requirement that “the client is in substantially as good a position as the client would be if the property were sold at fair market value.” I think it is of some significance that this requirement is not simply one that the property be sold at fair market value. I expect the test was formulated in this way in order to take account of the fact that commission would not be payable; a sale which is less than fair market value by the amount of the commission otherwise payable puts the client in as good a position as if the property were sold at fair market value to someone else and commission were payable.
- [30]In the present case had the property been sold to someone else at fair market value of $79,000, commission calculated in accordance with the formula in the retainer would have been payable in the amount of $2,667.50, so the client would actually have received $76,332.50. But because in respect of the present transaction the commission is repayable as a result of the order for compensation made against Mr Kidd, the client will ultimately receive $77,000, slightly more than she would have received if the property had been sold at fair market value to someone else in respect of whom commission would have been payable.
- [31]Once the commission is repaid to the client, she will therefore have suffered no loss as a result of the commission by this appellant of this offence. There is therefore nothing in respect of which an order for compensation can properly be made. The figure of $9,000 was calculated on an inappropriate basis. The magistrate accepted that $85,000 was the market value of the property, but there was no evidence before the magistrate that the sale that occurred had produced a loss from the point of view of the client and therefore no order for compensation ought to have been made. In the light of the fresh evidence, it is clear that there was no loss. The order for compensation must therefore be set aside.
- [32]The magistrate also made an order under s 592(2) of the Act disqualifying the appellant from registration as a real estate salesperson for a period of six months. In my opinion however that involves a misapprehension of the structure of s 592. Under subsection (1) the court may in respect of a registered employee order that her registration certificate be suspended for a stated period, or cancelled. Under subsection (2) the court may “also order that a person convicted of an offence be disqualified from holding a licence or registration certificate under the Act for a stated period or permanently.” Subsection (1) plainly distinguishes between suspension or cancellation of the registration. The difference in my opinion that, if registration is suspended for a period, during that period the employee is in the same position as if she were not registered, but once the period expires her registration is automatically reinstated. On the other hand, if a registration is cancelled she is in the same position as if she had not been registered, and she has to go through afresh whatever process is required in order to achieve registration, if she wants to become registered again.
- [33]In these circumstances, and bearing in mind that subsection (2) includes the word “also”, the power to disqualify in subsection (2) in my opinion complements the power in subsection (1) to cancel the registration, so that an employee whose registration has been cancelled cannot be again registered under the Act until the stated period has expired, or cannot be registered again at all. The difficulty in the present case is that the magistrate purported to disqualify the appellant from registration without first cancelling her registration. To be fair to the magistrate, the only order he was asked to make was one under s 592(2).
- [34]The offence under s 145 is in my opinion a much more serious offence than that under s 133(1). Although both prescribe a maximum penalty of 200 penalty units, the offence under s 145 also permits imprisonment for up to three years. This prohibition reflects a longstanding principle of the law of agency, that the agent is not allowed to enter into any transaction likely to produce a conflict between the duty to the principal and the agent’s own interest without proper disclosure and consent: Dargusch v Sherley Investments Pty Ltd [1970] Qd R 338 at 345, 347. It is important that a person engaging a real estate agent be confident that the agent will be trying to obtain as high a price as possible for the property to be sold. If there is some relationship between the agent and the purchaser, that confidence will be severely undermined. It is open to a vendor to accept such a transaction, but only on the strictly limited conditions permitted by the section. The offence is therefore potentially quite a serious one.
- [35]Although the appellant claimed that the client had been informed orally on two occasions of the existence of the relationship, no doubt one of the reasons why written acknowledgement is required is to ensure that there is no room for dispute about whether or not a fully informed consent has been obtained. In these circumstances, it is not particularly significant by way of mitigation. Of more significance is the fact that the appellant had only been working for some six months prior to this incident, was relatively young (28), and had no previous convictions, either for offences under this Act or any offences, and had pleaded guilty at the earliest opportunity. With regard to her personal background, she had migrated to Australia from China in 1991 at which time she had no understanding of English; it was claimed that she still had some difficulty with understanding written English, but that is not in my view a mitigating factor, since in order to qualify as a registered employee it was necessary for her to demonstrate some familiarity with the requirements of the legislation, including this aspect of it.
- [36]She said that the client wanted a quick sale. That was certainly what was achieved; the contract submitted to Mr McNamara’s affidavit is dated only seven days after the date of the retainer, with the Christmas holidays intervening. The speed of the transaction does not give any confidence that there had been reasonable efforts to obtain the best price available, and that is consistent with the evidence that the sale was at a price below the true market value.
- [37]Coming on top of the fine for $1,000 and an order for compensation for $9,000, cancelling the registration of the appellant and disqualifying her from registration for six months was in my opinion overall a severe penalty for the offence notwithstanding its seriousness, and one which perhaps did not give sufficient regard to the mitigating factors to which I have referred. On the other hand, once the order for compensation is removed, the overall penalty is significantly reduced. Even then I doubt whether I would have cancelled the licence rather than just suspended it, bearing in mind that even a suspension for a period is likely to have a substantial and long-lasting adverse effect on the appellant. However, there appears to have been no particular issue before the magistrate as to whether the licence should be suspended rather than cancelled, and the position overall is not so clear that I would be justified in interfering on appeal with this aspect of the exercise by the magistrate his discretion. I will add the order for cancellation which the magistrate ought also to have made.
- [38]It was submitted that a conviction should not have been recorded for this appellant. In my opinion however this offence is a more serious one and, notwithstanding the other factors to which I have referred, I am not persuaded that a decision to record a conviction meant that the exercise of the discretion under s 12 miscarried. Accordingly I will vary the sentence in the case of this appellant only by deleting the order for compensation, and adding the order for cancellation of the licence.
Conclusion
- [39]Overall therefore in relation to the appeal the outcome is as follows:
- (a)the appellant Boltons Real Estate Pty Ltd: appeal allowed in part, sentence varied by not recording a conviction; sentence otherwise confirmed.
- (b)the appellant Kidd: appeal allowed in part, sentence varied by not recording a conviction and by deleting the order for payment of the fine and reducing the period of default imprisonment to six weeks;[7] sentence otherwise confirmed.
- (c)the appellant Lin: appeal allowed in part, sentence varied by deleting the order for compensation and adding an order that her registration be cancelled. I will also reduce the period of default imprisonment to three weeks; sentence otherwise confirmed.
Footnotes
[1] For this judgment I am applying the Act in Reprint 1, as at 13 July 2001.
[2] A corporation to obtain a licence must have a director who is a licensed agent: s 36(3).
[3] A statement which is doubtless ignored by the overwhelming majority of people who sign such forms.
[4] It was also appropriate in all the circumstances of this case. That will not always be the case however, as appears from my reasons in Berceanu v Buttriss, delivered today.
[5] The appellants did not dispute that the order for compensation should be made against either the company or Mr Kidd.
[6] Affidavit of McNamara filed 4 July 2003, which incidentally exhibits a copy of the contract to the appellant’s parents showing the purchase price was $77,000.
[7] Imposed under s 182A of the Penalties and Sentences Act 1992.