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

CITATION: Chief Executive, Department of Justice and Attorney-General v Harper [2018] QCAT 22 PARTIES: Chief Executive, Department of Justice and Attorney-General (Applicant) v Patricia Margaret Harper (Respondent) APPLICATION NUMBER: OCR124-17 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Cranwell DELIVERED ON: 25 January 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. Ms Harper is reprimanded. 2. Ms Harper is ordered to pay a fine of $8,000 to the Chief Executive, Department of Justice and Attorney- General within 28 days of the date of this order. 3. Ms Harper is disqualified from holding or obtaining a licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of 10 years from the date of the order. CATCHWORDS: PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – DISCIPLINARY PROCEEDINGS – whether grounds for disciplinary action – considerations of the correct penalty Property Agents and Motor Dealers Act 2000 (Qld), s 379, s 384, s 385, s 496, s 583 Property Occupations Act 2014 (Qld), s 258 Chief Executive, Department of Justice and Attorney-General v Ford [2017] QCAT 4 Chief Executive, Department of Tourism, Fair -- 1 of 5 -- 2 Trading and Wine Industry Development v John Cornwell [2005] CCT X007-05 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Ms Harper was a licensed real estate agent between 25 June 2005 and 25 June 2014. She was a director and shareholder of Lonrea Pty Ltd (“Lonrea”), which was also a licensed real estate agent between 25 June 2014 and 17 December 2014. [2] Lonrea owned and carried on a residential letting and management rights business known as the Parc Apartments, and was the holder of a Westpac Banking Corporation trust account. Ms Harper was the principal licensee in charge of the residential letting agent business, and was the person in control of the day to day operation of the trust account. [3] On 17 February 2014, the Office of Fair Trading appointed Bentleys Corporate Recovery (“Bentleys”) as receivers over the trust property of Lonrea. Bentleys reported a shortfall of $49,869.13 in the trust account, which was repaid by Ms Harper on 17 July 2014. [4] The results of a subsequent Office of Fair Trading investigation were set out in the application for disciplinary action as follows: a) Between 30 May 2013 and 23 September 2013, seven bonds totalling $10,386 were paid by tenants into the trust account after having signed a lease to rent a unit within the Parc Apartments. The amounts were not paid to the Residential Tenancies Authority from the trust account as required by s 385(4) of the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”). b) On four occasions between 7 June 2013 and 30 July 2013, bond amounts in the form of cash totalling $7,040 were paid by tenants to Ms Harper after having signed a lease to rent a unit within the Parc Apartments. The amounts were not paid into the trust account as required by s 379 of PAMDA. c) On 17 occasions between 30 November 2011 and 31 January 2013 Ms Harper made an entry into a trust account record, namely a trust receipt, knowing it to be false in breach of s 583(3) of PAMDA. The entry falsely recorded an amount of rent being paid for a unit leased by Lonrea. The effect of the falsehood was to ensure the owner of the unit would be paid their rent due as part of the monthly disbursements despite the rent not having been paid. The 17 entries totalled $33,410. d) On 14 October 2013, Ms Harper paid two amounts totalling $2,627.97 from the trust account in a manner contrary to s 384(2) of -- 2 of 5 -- 3 PAMDA. The amounts were payments of a rates notice and water charges for a property owned by her partner, Graham Heslop. The property was not part of the Lonrea management portfolio. [5] In an email dated 11 October 2017, Ms Harper acknowledged that she had not adhered to PAMDA and accepted full responsibility, with the exception of sub-paragraph d) above. She stated that she could see no fault in making the payments. However, she conceded that if she had more time she would have paid the money to Mr Heslop’s account, and then made the payments for the rates notice and water charges from that account. Grounds for disciplinary proceedings [6] Section 496 of PAMDA provides that grounds for starting a disciplinary proceeding against a licensee or registered employee include: Grounds for starting disciplinary proceedings (1) The following are grounds for starting a disciplinary proceeding against a licensee or registered employee— … (b) the licensee or employee has contravened or breached— (i) this Act, including a code of conduct; … (g) for a licensee— (i) the licensee is not a suitable person to hold a licence; or … (iii) the licensee has, in carrying on a business or performing an activity, been incompetent or acted in an unprofessional way … [7] I note that PAMDA was repealed on 1 December 2014. Section 258 of the Property Occupations Act 2014 (Qld) provides that if a ground existed for starting a disciplinary action under PAMDA then the action can be taken as if it were under PAMDA. For the provisions to apply in the case of a former licensee, the licensee must have held a licence certificate at any time within three years before a disciplinary proceeding is started. In this case, Ms Harper held registration until 25 June 2014 and the disciplinary proceeding was started on 16 June 2017. [8] I have carefully reviewed the material file by the Chief Executive. I note that Ms Harper did not file any material. [9] I am satisfied that Ms Harper committed the breaches of s 379, s 384(2), s 385(4) and s 583(3) of PAMDA set out in paragraph 4 above. Ms -- 3 of 5 -- 4 Harper has accepted that she committed the breaches set out in sub- paragraphs a), b) and c). In relation to sub-paragraph d), the amounts were not drawn against a transaction fund or pursuant to Mr Heslop’s written direction as required by s 385(2) of PAMDA. While Mr Heslop may have been entitled to the money used to pay the rates notice and water charges, Ms Harper did not comply with the requirements for payment from the trust account. [10] There are therefore clear grounds for starting a disciplinary proceeding under s 496 of PAMDA. Ms Harper has committed several breaches of PAMDA, and her actions also amounted to acting in an unprofessional way such that she is not a suitable person to hold a licence. Appropriate penalty [11] The orders that the Tribunal can make upon a finding that grounds exist for taking disciplinary action against a person are set out in s 529 of PAMDA. They include a reprimand, fines, and the payment of compensation. The maximum fine in the case of an individual is 200 penalty units, or $25,230.1 In addition, a person’s licence of registration can be suspended or cancelled. Conditions or disqualification can be imposed for the holding of a licence or registration certificate. [12] The Chief Executive has sought a period of disqualification for 10 years and a fine in the range of $10,000 to $15,000. [13] I have been referred to two cases as precedents. In Chief Executive, Department of Tourism, Fair Trading and Wine Industry Development v John Cornwell,2 there was a deficiency of $36,612.39 in Mr Cornwell’s trust account. He repaid that amount within two months of removing it from the trust account. He did not contest the disciplinary allegations, cooperated fully, expressed considerable remorse and had good character references. He was disqualified from holding a licence for 10 years and fined $3,000. [14] In Chief Executive, Department of Justice and Attorney-General v Ford,3 Ms Ford removed $10,965.48 from her employer’s trust account. The money was not repaid, there was no cooperation with the investigation and no remorse. She was disqualified from holding a licence or certificate for 10 years and fined $10,000. [15] I consider that it is appropriate to reprimand Ms Harper and to disqualify her from holding or obtaining a licence or certificate of registration under the Property Occupations Act 2014 (Qld) for a period of years for the protection of the public, and to reinforce the seriousness of the offences to her. I consider that a period of 10 years as sought by the Chief Executive is consistent with the period of disqualification in Cornwell and Ford. 1 Penalties and Sentences Regulation 2015 (Qld), r 3. 2 [2005] CCT X007-05. 3 [2017] QCAT 4. -- 4 of 5 -- 5 [16] I also consider it appropriate to impose a fine of $8,000 to act as a deterrent to other licensees. While in one sense Ms Harper’s conduct is more serious than the conduct in Ford due to the larger amount of money involved and the fact that she was a licensee and not just an employee, her repayment of the moneys and her cooperation are mitigating factors as recognised in Cornwell. In these circumstances, I consider it appropriate to impose a fine slightly below the lower end of the range sought by the Chief Executive. Absent any mitigating factors, I may have imposed a fine at the higher end of the range. [17] I will make formal orders pursuant to s 529 of PAMDA in terms of these findings. -- 5 of 5 --