Chief Executive, Department of Justice and Attorney General v Maze

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):

APPLICANT:

Mr R Vize, in-house counsel

RESPONDENT:

Ms A Maze

REASONS FOR DECISION

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.
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.
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.
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.
I am therefore satisfied that disciplinary proceedings are appropriate.

Penalty

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.
The Chief Executive has referred me to The Chief Executive, Office of Fair Trading v Hopper[1] 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.
[1] [2008] QCCTPAMD 24.
Ms Maze wants to keep her licence until it expires in 2013 because this will give her time to pay off some debts.
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 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.
Ms Maze is remorseful. She has cooperated with the Chief Executive. There is no loss to consumers and Ms Maze has not reoffended.
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.
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 PAMDA[2] have been satisfied. The protection of trust money is a fundamental principle underlying the protection of consumers and the regulation of the industry.
[2] Chapter 12, Part 1.
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.
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.
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.
As has been observed[3], 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.
[3] The Chief Executive, Office of Fair Trading v Hopper supra at [17].

Orders

Angela Lillian Maze is reprimanded.
Angela Lillian Maze is disqualified permanently from holding a licence or registration certification under the Property Agents and Motor Dealers Act 2000.
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.

The Chief Executive of the Department of Justice and Attorney General brought proceedings against Angela Lillian Maze in the Civil and Administrative Tribunal of New South Wales, alleging breaches of the Property Agents and Motor Dealers Act 2000. The central issue was whether Ms Maze, acting as a property agent, had failed to bank trust money received from clients and instead used the funds for personal gambling purposes, as well as falsifying the cash book to conceal these actions. The tribunal was tasked with determining whether Ms Maze had engaged in professional misconduct warranting disciplinary action under the Act.

The tribunal examined the evidence presented, including testimonies from Ms Maze and other witnesses, and the documentation provided. It found that Ms Maze had indeed failed to bank trust money and had used these funds for gambling, as well as altering the cash book to cover up these actions. The tribunal concluded that these actions constituted professional misconduct and a breach of the trust inherent in the role of a property agent. Given the seriousness of the breaches and the potential harm to clients, the tribunal found that Ms Maze's conduct warranted stringent disciplinary measures.

In light of the findings, the tribunal imposed penalties on Ms Maze, including a formal reprimand, permanent disqualification from holding a licence or registration certification under the Act, and permanent disqualification from being an Executive Officer of a corporation holding such a licence or registration certificate. These penalties were deemed necessary to protect the public and uphold the integrity of the property industry. The orders were made to ensure that Ms Maze could not reoffend in a professional capacity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established