Chief Executive Department of Justice and Attorney General v Sands Management Pty Ltd & Anor [2013] QCAT 411

CITATION: Chief Executive Department of Justice and Attorney General v Sands Management Pty Ltd & Anor [2013] QCAT 411 PARTIES: Chief Executive Department of Justice and Attorney General (Applicant) v Sands Management Pty Ltd (First Respondent ) Jane Ann Belcher (Second Respondent ) APPLICATION NUMBER: OCR 407-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 21 June 2013 HEARD AT: Brisbane DECISION OF: Susan Gardiner, Member ORDERS MADE: 1. Sands Management Pty Ltd is disqualified permanently from being the holder of any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000; 2. Sands Management Pty Ltd pay a fine of $9,900.00 to the Chief Executive within 30 days; 3. Sands Management Pty Ltd pay compensation totalling $21,984.08 to the persons named in the schedule marked OFT X in this matter to be paid within 30 days unless Jane Ann Belcher pays the compensation amount; 4. Sands Management Pty Ltd pay costs of $32,721 within 30 days; 5. Jane Ann Belcher is disqualified permanently from being the holder of any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 2000; -- 1 of 5 -- 2 6. Jane Ann Belcher is disqualified permanently from being an executive officer of any corporation that holds a licence under the Property Agents and Motor Dealers Act 2000; 7. Jane Ann Belcher pay a fine of $4,950.00 to the Chief Executive within 30 days; 8. Jane Ann Belcher pay compensation totalling $21,984.08 to the persons named in the schedule marked OFT X in this matter to be paid within 30 days unless Sands Management Pty Ltd pays the compensation amount; 9. Jane Ann Belcher pay costs of $32,721 within 30 days unless Sands Management Pty Ltd has paid the costs. CATCHWORDS: PROPERTY AGENTS – DISCIPLINARY PROCEEDINGS – real estate agent – where letting agent for Resort – where bookings and records changed to divert money from unit holders for benefit of agent or associated entities– where loss of $21,984.08 – where agent and corporation permanently disqualified – appropriate fine as penalty – where compensation and costs awarded Property Agents and Motor Dealers Act 2000 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] The Chief Executive applied to start disciplinary proceedings against Sands Management Ptry Ltd and Jane Ann Belcher under sections 496 and 529 of the Property Agents and Motor Dealers Act 2000. [2] The parties have provided agreed facts to the Tribunal in relation to the actions of Sand Management and Ms Belcher. [3] The parties agree as follows: a) Ms Belcher was a director of Sands Management Pty Ltd trading as the Turtle Beach Resort. Sands Management was a licensed real estate corporation and carried on the business of a resident letting -- 2 of 5 -- 3 agent at the Turtle Beach Resort. Ms Belcher was the principal licensee and person in charge. b) Sands Management provided holiday and rental bookings at the Resort, receiving commissions and accounted to property owners on a monthly basis for rental income from the bookings. There are 297 units in the Resort. c) Ms Belcher and Sands Management through Ms Belcher manipulated the Hirum computerised booking records of the Resort causing monies to be transferred to bank accounts where the account holders were not entitled to receive the monies and the monies were converted to the benefit of Sands Management and another related company. d) Changes were made by Ms Belcher after guests left the Resort to swap bookings from particular units to units owned or controlled by an associated company or to units described as Dummy Units 1, 2 and 3 to the benefit of Sands Management or another related company. e) There were 46 alterations to accounts which amounted to $21,984.08 with payments to the unit owned or controlled by Linn Properties (an associated company of Ms Belcher) and payments to Dummy Units 1, 2 and 31. [4] The Chief Executive and Ms Belcher made joint submissions to the Tribunal saying that the disciplinary grounds in annexure A to the application should be found proven by this Tribunal and in particular: a) Sands Management Pty Ltd is not a suitable person to hold a licence; b) Sands Management Pty Ltd has contravened or breached section 384 the PAMD Act on 46 occasions; c) Ms Belcher is not a suitable person to hold a licence; d) Ms Belcher was a licensee and executive officer of Sands Management Pty Ltd, a corporation guilty of a disciplinary charge under section 529 of the PAMD Act2. [5] Further, the parties jointly propose that if the Tribunal finds the grounds exist to take disciplinary action then the parties propose orders that may include: For Sands Management Pty Ltd 1 The agreed statement of facts sets the total figure misappropriated at $$21,893.00. The Turtle Beach compensation schedule sets the total figure misappropriated at $21,984.08. The parties (through their legal representatives) confirmed by email to the Tribunal on 13 June 2013 that the correct figure is $21,984.08. 2 Property Agents and Motor Dealers Act 2000: ss 496(1)(i); 496(1)(b)(i); 496(1)(g)(vi) -- 3 of 5 -- 4 a) Sands Management Pty Ltd be disqualified permanently from being the holder of any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 20003; b) Sands Management Pty Ltd pay a fine of $10,000 to the Chief Executive within 30 days4; c) Sands Management Pty Ltd pay compensation totalling $21,984.08 to the persons named in the schedule marked OFT X in this matter to be paid within 30 days unless Ms Belcher pays the compensation amount5; d) Sands Management Pty Ltd pay costs of $32,721 within 30 days; For Jane Ann Belcher e) Jane Ann Belcher be disqualified permanently from being the holder of any form of licence or certificate of registration issued under the Property Agents and Motor Dealers Act 20006; f) Jane Ann Belcher be disqualified permanently from being an executive officer of any corporation that holds a licence7; g) Jane Ann Belcher pay a fine of $5,000 to the Chief Executive within 30 days8; h) Jane Ann Belcher pay compensation totalling $21,984.08 to the persons named in the schedule marked OFT X in this matter to be paid within 30 days unless Sands Management Pty Ltd pays the compensation amount9; i) Jane Ann Belcher pay costs of $32,721 within 30 days unless Sands Management Pty Ltd has paid the costs. Discussion [6] After consideration of the facts of this matter, I am satisfied that the orders proposed by the parties are appropriate. The primary object of disciplinary proceedings is protective of both the standards of the profession and members of the public from professional misconduct10. 3 Ibid s 529(1)(d). 4 Ibid s 529(1)(b)(ii). 5 Ibid s 529(1)(d)(ba). 6 Ibid s 529(1)(d)(ii). 7 Ibid s 529(1)(e). 8 Ibid s 529(1)(b)(ii). 9 Ibid s 529(1)(d)(ba). 10 Secretary of Surveyors Board v Hudson Dist Ct 30/8/91 per Morley D.C.J; Chief Executive of Tourism, Sport and Racing v Ross Dummett X006-03 delivered 24 June 2003 at 23. -- 4 of 5 -- 5 [7] Without authority, Ms Belcher transferred funds totalling $21,984.08 from third parties to her advantage. This was not isolated to one occasion and represented a planned scheme11 to defraud the unit owners. Ms Belcher has forfeited any right by her actions to hold any authority under the PAMD Act. [8] Ms Belcher’s actions have also potentially caused a lack of public confidence in the industry and the professional standing of other parties in the industry. Disciplinary proceedings are intended to protect both public and other professional parties and the gravity of these charges can be seen in the substantial nature of the potential penalties imposed, 200 penalty units for an individual, 1000 penalty units for a corporation and potential disqualification from holding a licence either permanently or for a stated period. [9] The seriousness of the offence and the significant breach of trust by Ms Belcher must be considered by this Tribunal when imposing a penalty. I am satisfied that the conduct of Ms Belcher is so serious that she should be reprimanded and permanently disqualified from holding a licence or registration certificate under the PAMD Act, whether personally or as an officer of a corporation. [10] A penalty unit is now worth $110.0012. [11] Balancing all of these matters, I am satisfied a substantial penalty should be imposed on the corporation and on Ms Belcher. On each of the occasions involved, Ms Belcher must have known the illegality of her actions but she continued nevertheless to remove money from unsuspecting unit holders. For the corporation Sands Management Pty Ltd, I am satisfied that a penalty of 90 units should be imposed being an amount of $9,900.00. For Ms Belcher, I am satisfied that the penalty should be 45 penalty units, being an amount of$4,950.00. [12] It is appropriate the Chief Executive’s costs fixed in the amount of $32, 721.00 (an amount agreed by the parties) is paid by the corporation or otherwise by Ms Belcher. 11 See for example The Chief Executive, Department of Tourism, Racing and Fair Trading v Gunther [2004] QCCTPAMD 18. 12 Penalties and Sentences Act 1992 s 5. -- 5 of 5 --