Chief Executive, Department of Justice and Attorney General v Hucker [2015] QCAT 87

CITATION: Chief Executive, Department of Justice and Attorney General v Hucker [2015] QCAT 87 PARTIES: Chief Executive, Department of Justice and Attorney General (Applicant) v Cecelia Elizabeth Hucker (Respondent) APPLICATION NUMBER: OCR089-14 MATTER TYPE: Occupational regulation matters HEARING DATE: 26 February 2015 HEARD AT: Brisbane DECISION OF: Member Rogers DELIVERED ON: 24 March 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. Cecelia Elizabeth Hucker is reprimanded. 2. Cecelia Elizabeth Hucker is permanently disqualified from holding a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. 3. Cecelia Elizabeth Hucker is disqualified from being an Executive Officer of a corporation that holds a licence or registration 4. Cecelia Elizabeth Hucker shall pay to the Chief Executive Department of Justice and Attorney-General a fine of $1,500 by 15 May 2015. 5. Cecelia Elizabeth Hucker shall pay to the Chief Executive Department of Justice and Attorney-General costs fixed at $1,000 by 15 May 2015. CATCHWORDS: REAL ESTATE AGENT – DISCIPLINARY PROCEEDINGS – where agent held deposit in personal bank account – where agent used money held as personal funds – where client known to be in poor health – where no consumer suffered loss – whether ground for -- 1 of 8 -- 2 disciplinary action – penalty to be applied Property Agents and Motor Dealers Act 2000 ss 379, 529, 573(2) Chief Executive, Department of Justice and Attorney-General v Sparkling Property Developments Pty Ltd Christine Jayne Jury [2014] QCAT 24 Chief Executive, DTFTWID v Caughey [2006] QCCT PAMD 42 Chief Executive, Department of Justice and Attorney General v My House is Your House Pty Ltd (under external administration) & Anor [2012] QCAT 326 APPEARANCES: APPLICANT: Chief Executive, Department of Justice and Attorney General RESPONDENT: Cecelia Elizabeth Hucker REPRESENTATIVES: APPLICANT: Mr R Vize for the Chief Executive, Department of Justice and Attorney General RESPONDENT: Mr Donaldson instructed by Bennett Carroll for the respondent REASONS FOR DECISION [1] The Chief Executive Department of Justice and Attorney General, on 23 April 2014, filed an application in the Tribunal to start disciplinary proceedings against Ms Hucker. [2] The application was based on the first ground that the respondent is an unsuitable person to hold a licence and, in the alternative, the second ground that the respondent has in carrying on business acted in an unprofessional way. [3] At the hearing Ms Hucker informed the Tribunal that she did not contest Disciplinary Ground 2. Submissions were then made by each party to address the issue of penalty. [4] Ms Hucker carried on the business of a real estate agent with her husband Warren Hucker via Galvinere Pty Ltd t/a Century 21 at the Village from premises situated at Wharf St, Logan Village. She held a real estate salespersons certificate 16 March 1995 to 6 July 2000. She held a real -- 2 of 8 -- 3 estate agent licence from 23 December 2005 to 23 December 2011. It was renewed on 16 May 2012 and expired 16 May 2014. [5] On 20 October 2010 Mr Gwynne Parry signed an appointment to act form1 appointing Century 21 at the Village as the selling agent of his property. The original list price was $459,000, but Mr Hucker told Mr Parry he thought that was high and he’d have to expect there were going to be lower offers put in on his property 2 [6] A contract dated 31 March 2011 for the sale of the property was signed by Gwynne Lewis Parry as the vendor, Henry Burke and Eve Bogda Burke as purchasers and Century 21 at the Village as the agent. All parties signed this contract and Ms Hucker witnessed Mr Parry’s signature. In this contract the purchase price was stated to be $459,000 and the deposit $91,800, payable within 14 days. [7] On 6 April 2011 Ms Hucker signed a selling agent’s disclosure to buyer form3 as the agent for the sale of the property. [8] On 13 May 2011 Ms Hucker provided Mr Burke with her personal account details and on 16 May Mr Burke deposited $16,800 into her personal account. This payment was referenced ‘home deposit’. On 12 July 2011 the amount of $16,800 was withdrawn from the account and returned to the lawyers of Mr Burke referenced as ‘Ref.of dep’. [9] While this money was in Ms Hucker’s personal account the account operated as a normal cheque account with money going in and out. The Chief Executive refers to the bank statement to show between 18 May 2011 and 23 June 2011 there were withdrawals on 52 occasions with amounts totalling $11,308.90, and at no time during this period did the account balance increase above $16,809.44. [10] There is in evidence a receipt signed by Mr Parry dated 14 April 2011 for the amount of $91,800 which is stated to be a non-refundable deposit on the sale of the property. [11] Mr Burke in his undated statement deleted all references to the deposit of $91,800. [12] Mr Parry in his undated statement says: 10. I do not know what the figure $91,800 represents. This amount was suggested to me 11. I did not receive the deposit of $91,800 within the 14 day deposit period agreed to in the contract of sale or at all. 13. Approximately two weeks after I signed the contract Cecelia Hucker attended my residence and asked me to sign a receipt for $91,000 1 PAMD Form 22a. 2 Interview Transcript: Cecelia and Warren Hucker 6 October 2011 paragraphs [25] – [39]. 3 PAMD Form 27c. -- 3 of 8 -- 4 indicating that I had received the money although I had not received any funds [13] It is accepted this amount was never paid or received. [14] In the Record of Interview dated 6 October 2011 Ms Hucker said she knew nothing about the receipt, she did not know who typed it up and she didn’t ask Mr Parry to sign it. She said, at paragraph 378: We had backed out of the whole thing by that stage. Had nothing to do with us. Cause we told him upfront, we’ll do the contract up for you and that’s as far as we go. Cause we try to assist him to get the sale, if they want to do things between themselves, let them go for it. [15] In that Record of Interview Ms Hucker and her husband Mr Warren Hucker both made statements to the effect that Mr Parry was very ill, was taking morphine, was not always coherent and that some days he was lucid and understood. [16] The Chief Executive points to a number of breaches of the Act and seeks orders pursuant to s 529 of the Property Agents and Motor Dealers Act 2000 (Qld) (‘PAMD Act’). Ms Hucker indicated she did not contest the charge in Ground 2. I find there are grounds for starting a disciplinary proceeding and I consider that an order pursuant to s 529 of the PAMD Act should be made. [17] The Chief Executive says that when Ms Hucker failed to immediately, on receiving the deposit, bank it into the agents trust account this was a breach of s 379(a). Further, the Chief Executive says that the use of the money deposited in her personal bank account was a wrongful conversion within the meaning of s 573(2)(a). [18] Ms Hucker says this money was provided to her on the basis she could do what she liked with it, that it was the provision of funds that could act as a deposit when it was needed. She says that because that was the arrangement she had there was nothing wrong with the money being paid into her personal account mingled with her funds and used to meet her drawings. Further, she relies on a letter from Mr Burke dated 4 November 2011 which states: This communication is to confirm that at no time did I make any stipulation regarding funds, that I deposited into your private bank account, were not to be used at your own discretion [19] The submission for Ms Hucker is not consistent with the bank records which indicate both on the money going into her account and the money coming out of her account that it was a deposit. In this circumstance Ms Hucker had a legal obligation to deal with the money by depositing it into her trust account. Section 379(a) is an important provision for the protection of client’s funds. [20] It is of concern that Ms Hucker formed the view that by describing it in some way other than as a deposit, with the agreement of the purchaser, -- 4 of 8 -- 5 she could circumvent the provisions of the legislation. Once the purchaser described the provision of the money as a ‘home deposit’, he could not authorise Ms Hucker to deal with the money in a way other than under the terms of the Act. [21] The Chief Executive submits Ms Hucker has contravened s 574(1) by asking Mr Parry to sign a receipt when she knew he had not received the money. This exposed her client, Mr Parry, to a claim from the vendor. [22] Ms Hucker says Mr Parry had been known to her husband for twenty years and had had significant dealings with him. They were merely doing a favour for him. She had no part in the signing of the receipt and it was ‘Taffy’ (Mr Parry) who suggested the receipt. She was a conduit between the two parties. She made an error in allowing herself to be used as a go between by the vendor and purchaser. [23] At the very least Ms Hucker was aware of the contents of the receipt because she forwarded it by email to Mr Burke. She was aware, or in a position to make herself aware, that the deposit had not been paid. As an agent with a long history in the industry she would have known the purposes to which the receipt could be put. While Ms Hucker admits she made an error she does not appear to fully accept the adverse consequences this behaviour could have had on third parties. [24] The Chief Executive submits there was a breach of section 15 of the Code of Conduct in Ms Hucker’s dealings with Mr Parry. She entered on the contract a deposit amount of 20% not 10%. She then obtained his signature on the false receipt. She took money from the purchaser which she put in her own account and she continued to deal directly with Mr Parry even when it was clear he was unwell and under the influence of strong medication. Ms Hucker refutes this with her previous arguments. [25] Finally, the Chief Executive says Ms Hucker has breached s 582 by her statements to the interviewing inspectors. This submission is based on her statements about not using the money which was paid into her account as a deposit. She subsequently admitted she did use the money as her own. The Chief Executive also relies on her statement that she knew nothing about the receipt for $91,800. Ms Hucker says this allegation is based on an acceptance of Mr Parry’s evidence which has not been tested. She said her statements are not misleading if Mr Parry’s statements are not accepted. [26] I am satisfied that Ms Hucker: a) failed to ensure that a deposit received by her was paid into a trust account in contravention of section 379 of the Act; b) received deposit money belonging to the purchasers and dishonestly converted the money to her own use in contravention of section 573 of the Act; c) in carrying on a business has acted in an unprofessional way. -- 5 of 8 -- 6 [27] In mitigation Ms Hucker said she is 65 years of age and would find it difficult to re-enter the work force after a period of disqualification. She is willing to have her licence disqualified permanently but she needs a certificate to allow her to keep working. Her husband, who also holds a licence, is ill and cannot continue to run the agency without her assistance. She says she would be constantly supervised by her husband because they realise any hint of non-compliance would result in the loss of their livelihood. [28] She points to her previous unblemished career. She has provided four references to attest to her good character. I have considered these references. The two, which describe Ms Hucker as an honest person, do not refer to these proceedings. The two references which do indicate an awareness of these proceedings, do not comment on her honesty. All the references refer to Ms Hucker as a person who has demonstrated a commitment to her clients and the furtherance of their interests. [29] The Chief Executive has sought a permanent disqualification or for a period of years and a fine of not more than 200 penalty units. I have been referred to comparative cases. Ms Hucker submits that in each of the cases referred to the charges were unsuitable to hold a licence and acted unprofessionally, and that made them more serious than the current case. [30] The only comparative case provided that did not include a charge the person was unsuitable to hold a licence was Chief Executive, Department of Justice and Attorney-General v Sparkling Property Developments Pty Ltd Christine Jayne Jury 4 . In that case the licensee on 38 occasions removed a total of $27,006.51 from the trust account for business purposes, made full admissions, expressed regret and remorse and full reimbursement was made. The company and individual were both fined $2,000 and disqualified for 15 years. This case is closely aligned with the present case. [31] The Chief Executive, DTFTWID v Caughey5 is also comparable, although it did involve a Magistrate’s Court conviction. In that case a deposit of $10,000 was paid to a business account and used to pay creditors of the business. The business was struggling. The money was repaid in 44 days and remorse was shown. A disqualification of 10 years and a fine of $900 was imposed. [32] I am aware this case can be distinguished from many of the cases cited because it did not involve the abuse of a trust account. However because this case involved not depositing money into a trust account when it should have been it does in fact involve the same risk to the public. It is not a less serious circumstance in my view. [33] It is also of great concern the unprofessional behaviour of Ms Hucker involved a lack of awareness of the extra caution required when dealing 4 [2014] QCAT 24. 5 [2006] QCCTPAMD 42. -- 6 of 8 -- 7 with a person who is experiencing difficulties which affect their ability to comprehend what is happening. [34] This matter proceeded on the basis of an acknowledgement of acting in an unprofessional way, and the first ground, that the respondent is an unsuitable person to hold a licence, was not pursued. Ms Hucker then challenged many of the allegations made by Chief Executive in her arguments in mitigation. This was an unsatisfactory situation. [35] However, on her own admissions, Ms Hucker was prepared to go along with what was suggested by the parties rather than exercising her own professional judgement. This behaviour shows a failure to understand the obligations imposed on a real estate agent by the legislation and the responsibility to act with integrity for the protection of those who might be affected by her behaviour in holding out the transaction is being conducted with her involvement. [36] While the submission was made that the Interview was a long interview and Ms Hucker cooperated in many respects, I am not satisfied that Ms Hucker did cooperate fully with the investigation. She attempted to distance herself from the transaction and minimise her involvement. On occasions she gave contradictory evidence. [37] Ms Hucker demonstrated a willingness to sidestep or ignore legislative requirements by adopting the view, as stated at paragraph 427 of the Record of Interview that she was not ‘doing it as a real estate agent’. Further, she stated, at paragraph 425 that she was not aware of the Queensland Criminal Code Legislation in regards to receiving secret commissions. This is a concerning admission from a real estate agent. [38] I have formed the view a lengthy period of disqualification is appropriate. However I am cognizant of the comments by Member Stilgoe6 A person … should either be given a realistic opportunity to re- enter the profession or be given the courtesy of knowing for certain that he is disqualified permanently. [39] Ms Hucker is 65. Any period of disqualification would prevent her from having a realistic opportunity to re enter the profession. For this reason I have decided Ms Hucker should be disqualified permanently from holding a licence. [40] Ms Hucker has submitted she should be able to continue to work as a certified salesperson. She says this would pose no risk to the public because her husband would properly supervise her. I have considered this option however it appears to me the very behaviour that has resulted in these proceedings means Ms Hucker should not be certified to perform the functions of a salesperson. 6 Chief Executive, Department of Justice and Attorney General v My House is Your House Pty Ltd (under external administration) & Anor [2012] QCAT 326. -- 7 of 8 -- 8 [41] In determining the fine I have considered Ms Hucker’s permanent disqualification, her age, the difficulty she will face finding alternative work and her obligation to care for her husband. I have also considered that no one suffered a financial loss and her previous unblemished history. A fine of $1,500 is appropriate and consistent with other decisions. [42] The orders will be: 1. Cecelia Elizabeth Hucker is reprimanded. 2. Cecelia Elizabeth Hucker is permanently disqualified from holding a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. 3. Cecelia Elizabeth Hucker is disqualified from being an Executive Officer of a corporation that holds a licence or registration 4. Cecelia Elizabeth Hucker shall pay to the Chief Executive Department of Justice and Attorney-General a fine of $1,500 by 15 May 2015. 5. Cecelia Elizabeth Hucker shall pay to the Chief Executive Department of Justice and Attorney-General costs fixed at $1,000 by 15 May 2015. -- 8 of 8 --