Occupational Discipline

151 views 8:18 am 0 Comments September 4, 2023

ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COMMISSIONER FOR FAIR TRADING v TEOH (Occupational Discipline)
[2022] ACAT 2
OR 16/2021
Catchwords: OCCUPATIONAL DISCIPLINE – real estate agent – consent
orders – failure of agent to obtain authorising documents for
publishing advertisements for property sales – failure of agent to
obtain documents permitting inspections of property –
misleading and deceptive conduct – breaches of agent rules of
conduct – public reprimand – fine – undertaking to minimise
further contraventions – training courses
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 65, 66
Agents Act 2003 ss 79, 89A
Civil Law (Sale of Residential Property) Act 2003 s 9
Fair Trading (Australian Consumer Law) Act 1992 s 34B,
Dictionary
Subordinate
Legislation cited: Agents Regulation 2003 ss 8.2, 8.4, 8.5, 8.9, 8.11, 8.16
Cases cited: Commissioner for Fair Trading v Yes Real Estate ACT Pty Ltd
[2019] ACAT 103
Nursing and Midwifery Board of Australia v Izzard [2016]
ACAT 68
Tribunal: Presidential Member MT Daniel
Date of Orders: 24 December 2021
Date of Reasons for Decision: 14 January 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 16/2021
BETWEEN:
COMIMISSIONER FOR FAIR TRADING
Applicant
AND:
SERENE RUI LI TEOH
Respondent
TRIBUNAL: Presidential Member MT Daniel
DATE: 24 December 2021
ORDER
CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL
AND ADMINISTRATIVE TRIBUNAL 2008 (ACT)
The parties have reached an agreement as to the terms of a decision of the Tribunal
that is acceptable to them.
The terms of the agreement have been reduced to writing, signed by or on behalf of
the parties and lodged with the Tribunal.
The Tribunal is satisfied that a decision consistent with those terms would be within
the powers of the Tribunal.
By consent, the Tribunal makes orders in the terms of the agreement signed by the
parties and as follows.
1. Noting the Agreed Statement of Facts at Schedule 1 of this agreement, pursuant
to section 66(2)(a) of the ACT Civil and Administrative Tribunal Act 2008
(ACAT Act), the respondent is publicly reprimanded.
2. Pursuant to section 66(2)(h) of the ACAT Act the respondent is to pay to the
Territory the sum of $2,000 within 21 days of the date of this order.
3. Pursuant to section 66(2)(b) of the ACAT Act, the respondent is to give a
written undertaking to the satisfaction of the Commissioner within 21 days of
this order concerning the steps she will take to minimise the likelihood of
further contraventions of the Agents Act 2003, including the provision of
training for, and the giving of written directions to, employees and the adoption
of relevant procedures for the following:

(a) training to employees in respect of the agent’s policies and procedures for
uploading properties advertised for sale to advertising websites; and

 

(b) risk assessment and management policy for uploading properties
advertised for sale to advertising websites.

The respondent must provide the undertaking to the Commissioner via email to
[email protected].
4. Pursuant to section 66(2)(c) of the ACAT Act, within three months of the date
of the Tribunal’s order, the respondent is to complete to the satisfaction of the
Commissioner the following real estate industry training courses, which are not
to count towards her continuing professional development requirement:
(a) CPPDSM4015A-Minimising agency and consumer risk;
(b) CPPDSM4012A-List property for sale;
(c) CPPDSM4014A-Market property for sale; and
(d) CPPDSM4009A-Interpret legislation to complete agency work.
The respondent must provide evidence of satisfactory completion of these
courses to the Commissioner via email to [email protected]
within 14 days of completing each course.
5. The directions hearing listed for 10 January 2022 is vacated.
…………Signed……………..
Presidential Member MT Daniel
1
REASONS FOR DECISION
1. By application dated 10 November 2021, the Commissioner for Fair Trading
(the Commissioner) commenced occupational discipline proceedings against
the respondent, Ms Serene Rui Li Teoh. The Commissioner brought these
proceedings pursuant to section 9 of the ACT Civil and Administrative Tribunal
Act 2008 (ACAT Act) and section 42 of the Agents Act 2003 (Agents Act). The
Commissioner sought orders against Ms Teoh for various breaches of the
Agents Act and Agents Regulation 2003 (Agents Regulation).
2. On 15 December 2021 the Tribunal was advised by email that the parties had
reached an agreement as to the final orders the Tribunal should make in relation
to Ms Teoh.
3. On 24 December 2021, by consent of the parties, I made in chambers orders
giving effect to the orders sought by the Commissioner. Below are my reasons
for the decision.
Facts
4. The parties provided an agreed statement of facts. From this I am satisfied of the
following facts:
5. Ms Teoh is and was, at all material times a licenced real estate agent under part
3 of the Agents Act to conduct the business of a real estate agent, business and
stock and station agent. As a licenced agent, Ms Teoh is subject to the statutory
requirements of the Agents Act, the Agents Regulation, and professional
conduct rules. Ms Teoh owns and operates a real estate business trading as
Trusted Realtors Pty Ltd.
6. Between 1 April 2020 and 25 May 2020, Ms Teoh published a total of 32
properties for sale on realestate.com, all 32 of the properties were in the ACT
suburb of Denman Prospect.
7. Between 14 April 2020 and 21 May 2020, Ms Teoh published a total of seven
properties for sale on zango.com.au, also in the suburb of Denman Prospect.
2
8. In listing these 39 properties, Ms Teoh either knowingly or recklessly, published
statements relating to her real estate business in advertisements which were
false and misleading. This constituted a breach of section 79(1) of the Agents
Act, which states:
79 False or misleading advertisements
(1) An agent commits an offence if—
(a) the agent publishes an advertisement; and
(b) the advertisement contains a statement about the agent’s
business; and
(c) the agent publishes the advertisement knowing that, or being
reckless about whether, the statement––
(i) is false or misleading; or
(ii) omits anything without which the statement is
misleading.
Maximum penalty: 100 penalty units.
9. Between 1 April 2020 and 25 May 2020 the respondent, in offering residential
properties for sale, failed to obtain and provide the required documents1
authorising the agent to list the properties for sale, and for inspections of the
premises by prospective buyers. This contravenes section 89A(1) of the Agents
Act, which provides:
89A Proposed contracts for sale of residential property
(1) An agent commits an offence if—
(a) the agent offers residential property for sale; and
(b) the required documents are not all available at the agent’s
place of business for inspection by a prospective buyer (or an
agent for a prospective buyer) at all reasonable times when an
offer to buy the property may be made to the agent.
Maximum penalty: 50 penalty units.
10. The parties agreed, and I am satisfied, that in the circumstances detailed above
the respondent breached the following professional conduct rules prescribed by
schedule 8 of the Agents Regulation:
8.2 Knowledge of Act and other laws
1 ‘Required documents’ means any of the documents prescribed by the Civil Law (Sale of
Residential Property) Act 2003 section 9, or otherwise prescribed by regulation.
3
An agent must have a knowledge and understanding of the Act, and any
other laws relevant to the kind of licence or certificate of registration held
(including, laws relating to residential tenancy, fair trading, trade
practices, anti-discrimination and privacy) that may be necessary to allow
the agent to lawfully exercise his or her functions as agent.
…
8.4 Honesty, fairness and professionalism
(1) An agent must act honestly, fairly and professionally with all parties
in a transaction.
(2) An agent must not mislead or deceive any parties in negotiations or
a transaction.
8.5 Skill, care and diligence
An agent must exercise reasonable skill, care and diligence.
…
8.9 To act in accordance with client authority
An agent must not act as an agent or represent himself or herself as
acting as an agent on behalf of a person without the written consent of the
person.
…
8.11 Licensee must ensure employees comply with the Act
An agent who is the licensee-in-charge at a place of business of a licensee
must take reasonable steps to ensure other licensees or registered persons
employed in the business conducted there comply with the Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
…
8.16 Soliciting through false or misleading advertisements or
communications
An agent must not solicit clients or customers by advertisement or other
communication that the agent knows or should know are false or
misleading.
Power of the Tribunal to make occupational discipline orders
11. In Nursing and Midwifery Board of Australia v Izzard,2 the tribunal observed
the legal framework for occupational discipline orders made by consent of the
parties, and established the process which is to be followed in such matters. I
adopt the reasoning of this decision, and proceed on the basis that the Tribunal
2
[2016] ACAT 68 at [6]-[11]
4
must be independently satisfied that the proposed orders “are both within
power, and appropriate”.3
12. Under section 41 of the Agents Act the grounds for bringing an occupational
discipline matter to the ACAT include where an agent has, or is, in
contravention of fair trading legislation4 or the professional conduct rules
prescribed by regulation.5
13. The Commissioner is empowered under section 42 to apply to the ACAT for an
occupational discipline order in relation to an agent, where the Commissioner
believes on reasonable grounds that a ground for occupational discipline exists
in relation to the agent.
14. The Tribunal may make the following occupational discipline orders in relation
to real estate agents:
66 Orders for occupational discipline
(1) This section applies if the tribunal may make an order for
occupational discipline in relation to the subject person.

Note Section 65 sets out when the tribunal may make an
order.
(2) The tribunal may make 1 or more of the following orders for
occupational discipline in relation to the subject person:
(a)
(b)
(c) 		reprimand the person;
require the person to give a written undertaking;
require the person to complete a stated course of training to
the satisfaction of the regulatory body or another stated
person;
give the person a direction;
For directions that may be given, see s 67.
cancel or suspend the person’s licence or registration;
(d)
Note
(e)

(f) disqualify the person from applying for a licence, or registration,
of a stated kind for a stated period or until a stated thing
happens;
3 Nursing and Midwifery Board of Australia v Izzard [2016] ACAT 68 at [11]
4
The Agents Act and Agents Regulation are considered both fair trading legislation and
consumer legislation; See Fair Trading (Australian Consumer Law) Act 1992 section 34B,
Dictionary def ‘fair trading legislation’.
5 Agents Regulation, schedule 8
5
(g) if a regulatory body may put conditions on the person’s
licence or registration under an authorising law—direct the
regulatory body to—

(i) put a condition on the person’s licence or registration;
or
remove or amend a condition put on the person’s
licence or registration;
(ii)
(h) require the person to pay to the Territory or someone else a
stated amount (not more than any amount prescribed by
regulation);
if the person gained financial advantage from the action that
(i)

is the ground for occupational discipline—require the person
to pay to the Territory an amount assessed as the amount of
financial advantage gained by the person.
(3) If the ACAT cancels a person’s licence or registration, the ACAT
may disqualify the person from applying for a licence or
registration for a stated period or indefinitely.
(4) This section does not limit the orders the tribunal may make.
(5) In this section:
regulatory body means the entity responsible for issuing licences of
the kind held by the subject person or for registering people in the
occupation or profession in which the subject person is registered.6
15. When making occupational discipline orders under section 66 against a ‘subject
person’7 – in this case a real estate agent, the Tribunal must consider whether
the orders are appropriate in the circumstances, as well as any mitigating factors
of the agent.8 The Tribunal is required to consider the following criteria when
issuing orders for occupational discipline:

(a) Whether the person took reasonable steps to avoid the action (the
contravention) that is the ground for occupational discipline;
Whether the occupational discipline has previously been used
against the person for a similar act;
Whether the person has taken steps to mitigate the effect of the
contravention;
The impact of the contravention on any other person;
The likelihood that the person will act in a way that is a ground for
occupational discipline in the future;
(b)
(c)
(d)
(e)

6 ACAT Act section 66
7 See ACAT Act section 65
8 Commissioner for Fair Trading v Yes Real Estate ACT Pty Ltd [2019] ACAT 103 at [18]
6
(f) Whether the entity bringing the application has applied for
particular occupational discipline to be used and, if so, the kind of
occupational discipline applied for.9 [emphasis in original]
Appropriateness of the proposed consent orders
16. As is the case with other regulated and licenced professions, there is an inherit
principle which underpins the purpose of regulation, being the protection of the
public who entrust agents to act with skill, care and diligence.10 It is an
expectation of the public that where an agent is licenced to provide professional
services, that the agent adheres to the standards prescribed by the Agents Act
and Agents Regulation, and are held responsible for failures to meet this
standard. The orders I have made in this matter are reflective of this principle,
each of which I will address in turn below.
17. In making the occupational discipline orders, I have considered the legislative
scheme and factors set out above against the circumstances of this matter.
18. The respondent has not previously been the subject of disciplinary proceedings,
nor subject to disciplinary orders in relation to her professional practice as a
licenced real estate agent. This is a relevant consideration which is to be applied
to all orders made, but should be weighed against the number of contraventions
of both the Agents Act and Agent Regulation. While a singular contravention of
the kind presented in this matter might constitute a transgression at the lower
end of the scale, the contraventions concerned a total of 39 property listings
over a period of approximately two months, demonstrating a pattern of personal
and business behaviours. The orders I made are reflective of both the
seriousness and quantity of these contraventions.
19. The parties’ early agreement and therefore resolution of the matter demonstrates
Ms Teoh’s wiliness to accept responsibility for the contraventions and
acceptance of the orders made against her. These are meaningful factors which
go to the purpose of regulatory oversight and the public expectations of licenced
professionals.
9 ACAT Act section 65(3)
10 Agents Regulation, section 8.5; See also Commissioner for Fair Trading v Yes Real Estate ACT Pty
Ltd [2019] ACAT 103 at [22]
7
20. It is appropriate that the respondent be publicly reprimanded by way of these
published reasons, which expresses the Tribunal’s disapproval of the agent’s
specific conduct and deters other agents generally.
21. The fine imposed, being $2,000, is appropriate and proportionate to the
contraventions of the respondent, and serves as deterrent for both Ms Teoh and
other agents practising in the Territory.
22. The written undertaking serves to effect procedural changes to the operation of
the respondent’s business and the conduct of employees under her supervision.
23. Finally, Ms Teoh is to complete to the satisfaction of the Commissioner, four
accredited training courses targeted at the respondent’s contraventions, and is to
provide evidence of completing the following courses within 14 days to the
Commissioner:
(a) CPPDSM4015A-Minimising agency and consumer risk;
(b) CPPDSM4012A-List property for sale;
(c) CPPDSM4014A-Market property for sale; and
(d) CPPDSM4009A-Interpret legislation to complete agency work.
24. The courses serve a remedial purpose to correct the respondents conduct and
minimise further contraventions of this kind. The Tribunal is satisfied that the
respondent should complete the above courses within the specified three-month
timeframe and that they are not to count towards her continuing professional
development requirements.
………………………………..
Presidential Member MT Daniel

Date(s) of hearing: In chambers
Solicitors for the Applicant: Mr A Chand, ACT Government Solicitor
Respondent: Ms S Rui Li Teoh

 

Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,