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REIQ Journal : November 2008
30 revisited By Michael Gapes, Partner, Carter Newell Lawyers The September 2006 edition of the REIQ Journal reported on the decision of the Commercial and Consumer Tribunal regarding an agent’s failure to properly advise her seller clients of the beneficial interest which she may acquire in two properties as required by s145 of the Property Agents and Motor Dealers Act 2000 (Qld). IN AUGUST 2006, the Tribunal found that Gold Coast agent Heather Filippini breached s145 of the PAMD Act by gaining a beneficial interest in two properties as a result of two separate transactions. Ms Filippini was disqualified from holding a license or registration certificate for four years and fined $11,250. Ms Filippini appealed to the Queensland District Court against conviction and sentence on the grounds of an error of law, or excess, or want, of jurisdiction. In December 2007, the District Court dismissed Ms Filippini’s appeal against conviction but granted her appeal against sentence. In its decision, the District Court judge considered that: “…substantial fines, without disqualification, send clear and appropriate messages of general and specific deterrence, but remain proportionate to the serious nature of the breaches. I do not consider the breaches warranted the consequences which would flow from a lengthy disqualification”. (Filippini v Chief Executive, Department of Tourism Fair Trading & Wine Industry Development  QDC 351 at ) The District Court directed that the orders of the Tribunal be set aside and substituted with a reprimand and an increased fine of $17,500. However, the matter did not end there for Ms Filippini. Although the District Court granted her appeal against sentence, the decision was appealed by the Chief Executive, the Department of Tourism, Fair Trading and Wine Industry Development. In April 2008, the Court of Appeal allowed the Chief Executive’s appeal, setting aside the orders of the District Court and ordered that Ms Filippini’s appeal to the District Court be dismissed. The Court of Appeal’s decision has reinstated the Tribunal’s earlier decision in disqualifying Ms Filippini from holding a license or registration certificate for four years and a fine of $11,250. REIQ Journal November 2008
December January 2009