Chief Executive, Department of Justice and Attorney General v Maze [2012] QCAT 510

CITATION: Chief Executive, Department of Justice and Attorney General v Maze [2012] QCAT 510 PARTIES: Chief Executive, Department of Justice and Attorney General v Angela Lillian Maze APPLICATION NUMBER: OCR162-12 MATTER TYPE: Occupational regulation matters HEARING DATE: 12 September 2012 HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 19 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Angela Lillian Maze is reprimanded. 2. Angela Lillian Maze is disqualified permanently from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000. 3. Angela Lillian Maze is disqualified permanently from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. CATCHWORDS: PROPERTY AGENT – where agent failed to bank money to trust – where agent falsified cash book to conceal failure to bank – where money recovered from sale of business – where trust money used for gambling Property Agents and Motor Dealers Act 2000, ss 10, 496, Chapter 12, Part 1 The Chief Executive, Office of Fair Trading v Hopper [2008] QCCTPAMD 24 APPEARANCES and REPRESENTATION (if any): -- 1 of 3 -- 2 APPLICANT: Mr R Vize, in-house counsel RESPONDENT: Ms A Maze REASONS FOR DECISION [1] Ms Maze is the holder of a real estate agent’s licence which expires on 27 July 2013. She operates an agency owned by her son. [2] The Chief Executive referred Ms Maze to the tribunal for disciplinary proceedings under s 496 of the Property Agents and Motor Dealers Act 2000 asserting that she is not a suitable person to hold a licence and/or that she has been carrying on business in an unprofessional way. [3] The particulars of the unprofessional conduct are that, on 31 occasions over a period of four months, Ms Maze banked trust monies late into the trust account and then falsified the cash book records to make it appear as if the money had been banked. The Chief Executive also asserts that Ms Maze did not lodge the final trust account audit. [4] While it is technically true that Ms Maze baked money to trust late, the real facts are not so benign. Ms Maze has admitted to the tribunal that she took $152,335.44 that should have been banked to trust to fund a gambling habit. The only reason the money was restored to the trust account is that Ms Maze sold her business in July 2008 and the purchaser paid part of the purchase price into trust to cover the shortfall. Ms Maze has misappropriated trust money and she falsified records to conceal the misappropriation. [5] I am therefore satisfied that disciplinary proceedings are appropriate. Penalty [6] The Chief Executive seeks the following penalty: a) A reprimand. b) That Ms Maze is permanently disqualified from holding any form of licence, or being an executive officer of a corporation that holds any form of licence. c) A fine. [7] The Chief Executive has referred me to The Chief Executive, Office of Fair Trading v Hopper1 as a comparative case. Ms Hopper misused $150,925.74 in trust money. She did not pay back that money so clients’ losses were paid from the statutory fund. [8] Ms Maze wants to keep her licence until it expires in 2013 because this will give her time to pay off some debts. [9] She says that she went through a hard time when her son tried to commit suicide. She says she is a 68-year old widow with no assets and no other means of earning an income. Her son owns the real estate agency where she works. Ms Maze says that her daughter will obtain her real estate 1 [2008] QCCTPAMD 24. -- 2 of 3 -- 3 agent’s licence some time this year and she will be able to take on the role of principal. Ms Maze says that her son will have to employ a licensee if the tribunal disqualifies Ms Maze before her daughter qualifies. [10] Ms Maze is remorseful. She has cooperated with the Chief Executive. There is no loss to consumers and Ms Maze has not reoffended. [11] As Mr Vize on behalf of the Chief Executive reminded me, the imposition of a penalty is not for the convenience of the individual who is in breach. [12] Trust accounts exist because it is money placed “on trust” with the licensee and is not available to the licensee unless the very strict requirements of PAMDA2 have been satisfied. The protection of trust money is a fundamental principle underlying the protection of consumers and the regulation of the industry. [13] Ms Maze violated the trust placed upon her as licensee and compounded it by falsifying the cash book. She used trust money for gambling. Although she is remorseful, Ms Maze has not provided me with any evidence to suggest that her gambling problem is under control. I am concerned that, as a principal, Ms Maze still has access to trust money, and there is no method of monitoring her dealings with that money, save for the normal audit requirements. [14] I am satisfied that Ms Maze should be disqualified permanently from holding a licence or being the executive officer of a company that holds a licence. [15] Mr Vize submitted that I should also impose a fine because there is no deterrent in a disqualification if Ms Maze does not propose to hold a licence beyond 2013. A fine will do nothing to protect the public, which is the primary purpose of the legislation. It cannot act as a deterrent to Ms Maze, because she will be excluded from the industry. I am not convinced that it will act as an additional deterrent to licensees; if the threat of permanent disqualification is not a sufficient deterrent to licensee, then a fine is unlikely to have any effect. [16] As has been observed3, the tribunal’s function is not to punish erring licensees. I decline to impose a fine on Ms Maze because it will, simply, be punitive. Orders [1] Angela Lillian Maze is reprimanded. [2] Angela Lillian Maze is disqualified permanently from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000. [3] Angela Lillian Maze is disqualified permanently from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000. 2 Chapter 12, Part 1. 3 The Chief Executive, Office of Fair Trading v Hopper supra at [17]. -- 3 of 3 --