Chief Executive Department of Justice and Attorney General v Leach (No 2) [2012] QCAT 427

CITATION: Chief Executive Department of Justice and Attorney General v Leach (No 2) [2012] QCAT 427 PARTIES: Chief Executive Department of Justice and Attorney General v Maree Ruth Leach APPLICATION NUMBER: OCR006-12 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Senior Member DELIVERED ON: 10 September 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Maree Ruth Leach is reprimanded. 2. Maree Ruth Leach is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 until she has provided to the Chief Executive, evidence that she has completed and passed courses of study in: a. establishing and managing trust accounts; b. legal and ethical requirements of property management to complete agency work; c. legal and ethical requirements of property sales to complete agency work; d. interpret legislation to complete agency work. 3. Maree Ruth Leach is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 until she has provided to the -- 1 of 5 -- 2 Chief Executive, evidence that she has completed and passed courses of study in: a. establishing and managing trust accounts; b. legal and ethical requirements of property management to complete agency work; c. legal and ethical requirements of property sales to complete agency work; d. interpret legislation to complete agency work. 4. Maree Ruth Leach shall pay to the Chief Executive Department of Justice and Attorney General a fine of $3,300 by 1 December 2012. CATCHWORDS: REAL ESTATE AGENT – DISCIPLINARY PROCEEDINGS – where agent failed to provide audit reports for trust account – where agent failed to give written notice after opening a trust account – where agent acted as a real estate agent while unlicensed – whether agent failed to declare a beneficial interest – where agent failed to reconcile bank statements to the trust account cash book – where agent failed to provide documents in response to notice to produce – whether agent harassed tenant – whether agent lacked honesty, fairness and professionalism – whether agent failed to verify facts material to sale – whether agent failed to carry out repairs promptly – whether agent failed to give notice of referral to TICA Queensland Civil and Administrative Tribunal Act 2009, ss 21(1), 21(2) Property Agents and Motor Dealers Act 2000, ss 10, 496 Chief Executive, Dept of Tourism, Fair Trading, and Wine Industry Development v Cumerford [2005] QCCTPAMD 14 Chief Executive, Dept of Tourism, Fair Trading, and Wine Industry Development v Byrne [2005] QCCTPAMD 8 APPEARANCES and REPRESENTATION (if any): -- 2 of 5 -- 3 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] On 23 July 2012, I found that proper grounds existed for disciplinary proceedings against Ms Leach. [2] I found that Ms Leach failed to lodge trust account audit reports when required, failed to give written notice after opening a trust account, and failed to reconcile bank statements to trust account cash book balances. I found that Ms Leach acted as a real estate agent while unlicensed for a period of six months. She failed to provide documents in response to a notice to produce. I found that Ms Leach acted in a way that lacked honesty, fairness and professionalism by sending an abusive email and she harassed Mr Cutbush in the course of her work as an agent. [3] I now have to determine what penalty is appropriate. [4] One of the objects of PAMDA is to protect consumers against particular undesirable practices associated with the promotion of residential property.1 This objective is achieved by ensuring that only suitable persons with appropriate qualifications are licensed or registered2. [5] The Chief Executive submits that the objectives of PAMDA will be achieved by a period of disqualification or suspension and a fine. The Chief Executive says that an order from the tribunal will remind Ms Leach that the holding of a licence is a privilege. [6] Ms Leach does not agree with my reasons for decision. She is not prepared to accept disciplinary proceedings. She says that licensees are given no training about their responsibilities under PAMDA. She prides herself on her role as an agent and says that she is an upstanding person in the community. She says that she is not remorseful because she has done nothing wrong. Ms Leach says she has been diagnosed with a heart condition and that she has already suffered a penalty through the stress of the last three years. [7] Ms Leach’s submissions show a troubling lack of insight into the roles and responsibilities of being a licensee. It is apparent that she still does not understand the obligations of a licensee. She does not understand the detailed requirements of keeping a trust account. She does not understand that, while members of the public may behave badly in real estate transactions, she is not entitled to descend to the same level. She does not appear to understand that there must be a separation between her private life and her professional life. [8] It seems to me that the actions which led Ms Leach to this point were a combination of ignorance, failure to attend to detail and an inability to separate her professional life from her private life. 1 Section 10(2) PAMDA. 2 Section 10(3) PAMDA. -- 3 of 5 -- 4 [9] A person cannot obtain a full real estate agent’s licence without completing study in: establishing and managing trust accounts; legal and ethical requirements of property management and sales; and interpreting legislation. Any one of those competencies should have equipped Ms Leach to avoid the problems she encountered. If Ms Leach does not have those competencies, her licence should be suspended until she can demonstrate to the Chief Executive’s satisfaction that she has completed, and passed, the necessary study. [10] I should also impose a fine as a deterrent to both Ms Leach and other licensees. The Chief Executive has noted that the tribunal imposed a fine of $1,500 in circumstances less serious than the present case. In Chief Executive, Dept of Tourism, Fair Trading, and Wine Industry Development v Cumerford3 Mr Cumerford lodged one audit report 10 months late. He was fined 20 penalty units. [11] The Chief Executive has also referred me to Chief Executive, Dept of Tourism, Fair Trading, and Wine Industry Development v Byrne4 although it concedes that Ms Leach’s conduct is not as serious as that of Ms Byrne. Ms Byrne failed to keep proper trust account records. She also improperly dealt with trust money. The tribunal imposed a fine of $7,500. [12] Ms Leach’s conduct was more serious than that of Mr Cumerford and therefore warrants a greater penalty. I am satisfied that a fine of 30 penalty units is appropriate, being a fine of $3,300. [13] The Chief Executive has also asked for an order that Ms Leach lodge audit reports that comply with PAMDA for three trust accounts. Ms Leach says she has lodged all necessary audit reports. I infer from the Chief Executive’s request that the reports that have been lodged are inadequate but I have no detailed submissions either way. I will not make the order but Ms Leach should be aware that there are outstanding issues with her trust account audits which, if not addressed, may cause her more trouble in the future. Orders [1] Maree Ruth Leach is reprimanded. [2] Maree Ruth Leach is disqualified from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000 until she has provided to the Chief Executive, evidence that she has completed and passed courses of study in: a) establishing and managing trust accounts; b) legal and ethical requirements of property management to complete agency work; c) legal and ethical requirements of property sales to complete agency work; d) interpret legislation to complete agency work. 3 [2005] QCCTPAMD 14. 4 [2005] QCCTPAMD 8. -- 4 of 5 -- 5 [3] Maree Ruth Leach is disqualified from being an Executive Officer of a corporation that holds a licence or registration certificate under the Property Agents and Motor Dealers Act 2000 until she has provided to the Chief Executive, evidence that she has completed and passed courses of study in: a) establishing and managing trust accounts; b) legal and ethical requirements of property management to complete agency work; c) legal and ethical requirements of property sales to complete agency work; d) interpret legislation to complete agency work. [4] Maree Ruth Leach shall pay to the Chief Executive Department of Justice and Attorney General a fine of $3,300 by 1 December 2012. -- 5 of 5 --