Department of Employment, Economic Development & Innovation v Moore [2011] QCAT 482

CITATION: Department of Employment, Economic Development & Innovation v Moore [2011] QCAT 482 PARTIES: Department of Employment, Economic Development & Innovation v Alexander Terence Moore APPLICATION NUMBER: OCR046-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 11 October 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Mr Moore is reprimanded. 2. Mr Moore’ real estate agent’s licence is cancelled. 3. Mr Moore is disqualified from holding a licence for a period of five years. 4. Mr Moore should pay a penalty of $5,000 (50 penalty units) to the Chief Executive within 21 days of the date of this order. 5. Mr Moore should pay the Chief Executive’s costs fixed at $510. 6. Mr Moore should not be permitted to apply for registration unless and until: a. He has successfully completed a course of study that is currently required for licensees who are new to the industry. b. He has paid the Chief Executive the amounts referred to in paragraphs 4 and 5 above. CATCHWORDS: PAMDA – Real Estate Agent – where agent living overseas – where agent lodged false declaration – penalty -- 1 of 4 -- 2 Property Agents and Motor Dealers Act 2000, ss 81, 132(2 ), 496, 583 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Moore held a real estate agent’s licence from 21 November 2005 to 21 November 2010. During that period, he operated a real estate agency under the name L J Hooker Commercial – Noosa. The business was operated firstly by Mr Moore under a registered business name and then through a company Sunshine Coast Commercial Pty Ltd, of which Mr Moore was the sole director and shareholder. [2] On 25 November 2009, Mr Moore completed applications for the renewal of both his personal licence and the licence for Sunshine Coast Commercial Pty Ltd. Mr Moore listed his home address as an address in Noosaville. [3] In late 2009, it came to the Chief Executive’s attention that Mr Moore was not living in Noosaville but was, in fact, living in India. On 2 December 2009, an officer from the Department had a telephone conversation with Mr Moore. The officer has sworn an affidavit which states that Mr Moore told her: a) He is living in India. He left about two years ago but he flies back and forth to Australia every couple of months. b) It had been eleven and a half months since his last visit to Australia. c) He intended to return to Australia later that month for a short period. [4] Officers of the Chief Executive conducted a formal interview with Mr Moore on 22 December 2009. A transcript of that interview was annexed to a sworn affidavit of one of the officers who conducted the interview. That interview confirmed much of the information provided in the earlier conversation. Mr Moore provided some further information: a) He did not advise the Department of his absence or appoint another licensee to act in his absence. b) He ran his real estate business by email and telephone from India. He received weekly reports of sales and rentals. c) He does not intend to return to Australia. He intends to put his licence in abeyance. [5] Mr Moore did not appoint another licensee to act in his absence until March 2010, after some pressure from the Department. This is despite the fact that he was only in Australia for a short period in December 2009 and he returned to India in January 2010. -- 2 of 4 -- 3 [6] The Chief Executive submits that Mr Moore has breached s 496(1)(g) of the Property Agents and Motor Dealers Act 2000 by contravening the following sections of the Act: a) s 81(1) – a licensee’s obligation to notify the Chief Executive of changes in circumstances. b) s 132(2) – a licensee’s obligation to be in charge of a real estate agent’s business at a place. c) s 583 – by providing false or misleading documents. [7] Mr Moore has not provided any submissions to the tribunal, nor has he appeared at any directions hearings. There is a letter in the Chief Executive’s material that shows an Indian address for Mr Moore and I have no reason to doubt that he has lived in India from January to December 2009. [8] The Chief Executive’s submissions record that Mr Moore has conceded that the applications for renewal of licence have a Noosa address. He says that the applications were pre-prepared by the Chief Executive based on previous information. The form states, at the top of page 3: “Listed below are current licence particulars. Please provide any alterations or additions required…” At page 7, the form requires the licensee to acknowledge that he has: “…checked and completed the current information, made necessary alterations …and state that the details are true and correct in every detail. NOTE: It is an offence to supply incorrect or misleading information.” [9] Mr Moore does not explain why he did not change the pre-printed information. [10] I am satisfied that Mr Moore: a) Did not notify the Department of his change of circumstances in breach of s 81. b) Was not in charge of the agency by being present, as required by s 132(2). c) Provided false and misleading documents in his applications for renewal, in breach of s 583. [11] Mr Moore says he was not aware of the requirements placed on him by the Act. That can be no excuse. He had been a real estate agent for four years; he operated an agency; and he was subject to the onerous requirements of PAMDA at all times. He should have known what the Act required of him. [12] I am satisfied that Mr Moore is not a fit and proper person to hold a real estate agent’s licence. He should be disqualified from holding a licence for a period of five years. Given his professed ignorance of PAMDA, Mr Moore should not be permitted to apply for registration unless and until he has successfully completed a course of study that is currently required for licensees who are new to the industry. -- 3 of 4 -- 4 [13] The Chief Executive has called for the imposition of a fine of 50 penalty units. It is a serious matter that Mr Moore professes he did not know his obligations under PAMDA. It is a serious matter that he signed a false declaration. It is a serious matter that he purported to operate an agency from another country. It is only good luck that has prevented Mr Moore’s lax approach to running an agency resulting in loss to consumers. [14] What is also troubling is Mr Moore’s attitude once his breaches were discovered. He took no action to correct the breaches until March 2010, even though officer from the Department had been in regular communication with him since early December 2009. The record of interview indicates that Mr Moore was not taking the matter seriously. He has not expressed any remorse and has not assisted the Chief Executive in this proceeding. Given the serious nature of the offences, and Mr Moore’s attitude to them, it is appropriate to impose a penalty of $5,000. [15] The Chief Executive has asked for an order that Mr Moore pay its costs fixed at $500. The public purse should not have to bear the cost of disciplinary proceedings, particularly in circumstances where there has been no cooperation from the offender. Mr Moore should consider the modest claim as part of his penalty. Orders [16] The orders should be: a) Mr Moore is reprimanded. b) Mr Moore’ real estate agent’s licence is cancelled. c) Mr Moore is disqualified from holding a licence for a period of five years. d) Mr Moore should pay a penalty of $5,000 (50 penalty units) to the Chief Executive within 21 days of the date of this order. e) Mr Moore should pay the Chief Executive’s costs fixed at $510. f) Mr Moore should not be permitted to apply for registration unless and until: i) He has successfully completed a course of study that is currently required for licensees who are new to the industry. ii) He has paid the Chief Executive the amounts referred to in paragraphs d) and e) above. -- 4 of 4 --