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REIQ Journal : October 2008
LEGAL ISSUES 33 Michael Gapes, Partner, Carter Newell Lawyers Mr Brandt’s New South Wales licence was not revived after his period of disqualification came to an end in October 2006. Despite the fact that Mr Brandt only held a conditional salesperson’s certificate, he held himself out to be a fully licensed agent by way of directories, business cards, advertisements and his dealings with customers. In addition, the evidence before the Tribunal indicated that he had numerous dealings with trust accounts, breaching the condition on his certificate. Mr Brandt lodged two further applications for a licence in Queensland; firstly, under the mutual recognition legislation and, when that was refused, by a standard application for a licence. The charge of misleading conduct arose after one of the Chief Executive’s investigators discovered that Mr Brandt’s certificate displayed on his wall did not contain the condition restricting his dealings with trust accounts. Upon a closer inspection, Mr Brandt’s certificate had all the appearances of one issued by the licensing authorities, except for a number of subtle differences. The Chief Executive submitted that the Tribunal should be satisfied that the certificate displayed was not the certificate issued by the licensing authorities. Mr Brandt professed ignorance and denied doctoring the certificate, but offered no explanation as to how the certificate came into existence and more importantly, how he came by it. Mr Brandt also declined the opportunity to cross-examine the investigating officer of the Office of Fair Trading during the course of the hearing. The Tribunal held that all three charges against Mr Brandt had been upheld. In establishing that the misleading conduct charge had been upheld, the Tribunal stated that it was “conscious of the fact that this finding necessarily involves a finding of serious misconduct which probably amounts to some criminal offence”. The Tribunal ordered that Mr Brandt be permanently disqualified from holding any licence or certificate under the PAMD Act and that he be permanently disqualified from being an executive officer of a corporation that holds a licence. Given the Tribunal’s findings, it considered that it was not appropriate or necessary to impose a further monetary fine on Mr Brandt, although he was ordered to pay the Chief Executive’s costs of the application. Conclusion This decision is another example of the Tribunal utilising its disciplinary powers in order to uphold the standards of entry into the real estate industry. Agents should also be aware that the Office of Fair Trading regularly conducts routine audits of agencies and fully investigates all complaints made by the public in relation to the conduct of agents. It is therefore imperative that agents ensure that all information supplied in support of applications for licenses and certificates is completely accurate and that licenses and certificates are kept up to date at all times. THE MARKET HAS CHANGED. How many of your Salespeople have worked in this market before? Do your Sales staff need fresh training, ideas, systems and resources to use now? Do you want your Agency and staff to comply with legislation requirements and avoid fines? Your solution is SALES BOSS. It’s new, innovative, online 24/7 and cost effective. VIEW ON-LINE EASILY – WITH NO OBLIGATION ENQUIRE NOW – you’ll be glad you did Call 1300 734 596 www.realestatedynamics.com.au REIQ Journal October 2008