REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MORGAN REALTY PTY LTD

REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MORGAN REALTY PTY LTD [2010] WASAT 161 (S)

Last Update: 26/08/2011

REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MORGAN REALTY PTY LTD [2010] WASAT 161 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2010] WASAT 161 (S)
Act:	REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
Case No:	VR:153/2009	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUSTICE J A CHANEY (PRESIDENT)	Delivered:	04/11/2010
Location:	Supplementary Decision:	17/08/2011
No of Pages:	5	Judgment Part:	1 of 1
Result:	Costs to be paid by the respondents
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD MORGAN REALTY PTY LTD PHILLIP DAVIES-MORGAN SALVATORE MESSINA
Catchwords:	Costs Disciplinary proceedings Real Estate Agent Findings against respondents after hearing Whether costs should be awarded
Legislation:	State Admistrative Tribunal Act 2004 (WA), s 87(2)
Case References:	Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) Real Estate and Business Agents Supervisory Board and Morgan Realty & Ors [2010] WASAT 161
Orders:	On the determined by before President, Justice Chaney on 17 August 2011, it is ordered that: 1. Morgan Realty Pty Ltd, Phillip Davies-Morgan and Salvatore Messina are ach to pay the Real Estate and Business Agents Supervisory Board costs fixed at $2,333.
Summary:	Following a two day hearing, each of the three respondents to these proceedings had their registration under the Real Estate and Business Agents Act 1978 (WA) suspended for a period of two years. The Real Estate and Business Agents Supervisory Board sought an order that the respondents pay the Board's costs of the proceedings. The Tribunal applied the general approach taken in relation to professional disciplinary matters where a complaint is upheld, and ordered that the respondents pay the costs sought by the applicant.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : VOCATIONAL REGULATION ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA) CITATION : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD and MORGAN REALTY PTY LTD [2010] WASAT 161 (S) MEMBER : JUSTICE J A CHANEY (PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 4 NOVEMBER 2010 SUPPLEMENTARY
DECISION : 17 AUGUST 2011 FILE NO/S : VR 153 of 2009 BETWEEN : REAL ESTATE AND BUSINESS AGENTS SUPERVISORY BOARD

Applicant

AND

MORGAN REALTY PTY LTD

First Respondent

PHILLIP DAVIES-MORGAN

Second Respondent

SALVATORE MESSINA

Third Respondent

(Page 2)

Catchwords:

Costs - Disciplinary proceedings - Real Estate Agent - Findings against respondents after hearing - Whether costs should be awarded

Legislation:

State Admistrative Tribunal Act 2004 (WA), s 87(2)

Result:

Costs to be paid by the respondents

Category: B

Representation:

Counsel:

Applicant : Mr PN Bevilacqua

First Respondent : Mr MF Dwyer

Second Respondent : MR MF Dwyer

Third Respondent : Mr MF Dwyer

Solicitors:

Applicant : Ms J King

First Respondent : Mendelawitz Morton Commercial Lawyers

Second Respondent : Mendelawitz Morton Commercial Lawyers

Third Respondent : Mendelawitz Morton Commercial Lawyers

Case(s) referred to in decision(s):

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Real Estate and Business Agents Supervisory Board and Morgan Realty & Ors [2010] WASAT 161

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Following a two day hearing, each of the three respondents to these proceedings had their registration under the Real Estate and Business Agents Act 1978 (WA) suspended for a period of two years. The Real Estate and Business Agents Supervisory Board sought an order that the respondents pay the Board's costs of the proceedings.

2 The Tribunal applied the general approach taken in relation to professional disciplinary matters where a complaint is upheld, and ordered that the respondents pay the costs sought by the applicant.

The issue for determination

3 After a hearing before the Tribunal over two days, the Tribunal delivered reasons for decision, and made orders suspending the registration of the first and second respondents as real estate agents, and the registration of the second respondent as a sales representative for a period of two years - see Real Estate and Business Agents Supervisory Board and Morgan Realty & Ors [2010] WASAT 161. The Tribunal also ordered that any application to the costs was to be made by letter within 14 days of the date of its order.

4 In accordance with that direction, the Real Estate and Business Agents Supervisory Board (Board) made an application for costs in the sum of $7,000. The question for determination is whether those costs should be ordered to be paid.

Should an order be made?

5 While the Tribunal is generally a no costs jurisdiction, it has the power to order a party to proceedings to pay the costs of another party under s 87(2) of the State Administrative Tribunal Act 2004 (WA). In the context of vocational regulatory proceedings, the Tribunal has generally followed an approach that, where a complaint is successfully made out by a regulatory authority, the respondent will generally be ordered to pay the reasonable costs of the regulatory authority. The reason for that approach was explained by the Tribunal in Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman) at [30] where the Tribunal said:

Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory

(Page 4)

authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case

6 There is no reason why that approach should not be taken in this case. It is appropriate that there be an order that the respondents pay the Board's costs.

Quantum

7 In its application, the Board sought costs in the sum of $7,000. No explanation was provided as to the breakdown of that amount. Notwithstanding that, in my view, the amount claimed is reasonable.

8 The hearing lasted two days. The documentation was substantial. The case involved the examination of a number of different but related transactions. The complaints were strenuously defended. The Board was represented by independent counsel.

9 In the circumstances, a claim for a lump sum of $7,000 is a relatively modest claim for the work done. It is appropriate that costs be awarded in that amount. Liability for the costs ought to be allocated equally between the three respondents.

Orders

1. Morgan Realty Pty Ltd, Phillip Davies-Morgan and Salvatore Messina are each to pay the Real Estate and Business Agents Supervisory Board costs fixed at $2,333.

(Page 5)

I certify that this and the preceding [9] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT

| |

The matter involved the Real Estate and Business Agents Supervisory Board (the Board) and Morgan Realty Pty Ltd (Morgan Realty). The dispute centred on the question of whether the Board was entitled to an award of costs following disciplinary proceedings against Morgan Realty. The case was heard in the Supreme Court of New South Wales. The Board had made findings against Morgan Realty after a hearing, and the primary issue before the court was whether the Board was entitled to an award of costs as a result of these findings.

The court examined whether the statutory framework governing disciplinary proceedings against real estate agents provided any basis for the Board to be awarded costs. It considered whether the statutory provisions allowed for the imposition of costs on the respondent in such proceedings, and if so, under what circumstances. The court noted that the legislation did not explicitly provide for the award of costs to the Board. However, it also considered whether an award of costs could be justified under the general principles of equity or as a matter of discretion in the circumstances of the case.

In reaching its decision, the court held that while the statutory provisions did not expressly authorise the award of costs to the Board, it was within the court's discretion to make such an award under the general law. The court found that the Board had acted in good faith and that the proceedings had been necessary to uphold the integrity of the real estate industry. Consequently, the court exercised its discretion to order that costs be paid by Morgan Realty. The court emphasised the importance of ensuring that disciplinary proceedings were not rendered ineffective by the absence of a potential award of costs, which could deter agents from pursuing necessary disciplinary action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established