Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Foong v Director-General, Department of Finance and Services NSW Fair Trading [2012] NSWADT 261 Decision date: 10 December 2012 Jurisdiction: General Division Before: S Frost, Judicial Member Decision: Decision under review varied so as to impose a disqualification period of seven years from 19 September 2011 Catchwords: Real estate licensing - fit and proper person - applicant convicted, after initial disqualification, of an offence involving dishonesty - period of disqualification increased Legislation Cited: Property, Stock and Business Agents Act 2002 Category: Principal judgment Parties: Yena Foong (Applicant); Director-General, Department of Finance and Services NSW Fair Trading (Respondent) Representation: Y Foong (Applicant in person) Ms F Campora, Department of Finance & Services (Respondent) File Number(s): 113343 reasons for decision Introduction 1GENERAL DIVISION (S FROST, JUDICIAL MEMBER): The applicant, Ms Yena Foong, has been a real estate agent for about 25 years - since 1999 in New South Wales, and before that in New Zealand. 2In September 2011 a delegate of the respondent determined that Ms Foong should be disqualified from working as a real estate agent for five years. The circumstances that led to that determination, and the events that have occurred since then, will be set out in detail later in these reasons. As things have turned out, the respondent now suggests that Ms Foong's period of disqualification should be increased to seven years. In the circumstances, I agree that seven years is the appropriate period of disqualification. I will vary the decision under review and impose a period of disqualification of seven years. The events giving rise to the initial determination 3In early 2011 an investigation was conducted by the Office of Fair Trading in relation to a complaint made by clients of a real estate agency, B-Gold Realty Pty Ltd. The complaint related to the non-remittance of the balance of a 10% deposit from the sale of a property by the complainants. 4B-Gold was the holder of a corporation licence issued under the Property, Stock and Business Agents Act 2002 (the Act). The nominated licensee in charge of the registered office of B-Gold was Mr Keen Joi Foong, the applicant's son. The applicant herself held a real estate agent's licence and was an employee of the company. 5The complaint centred on the failure to account to the complainants in relation to the sum of $80,000, originally held in B-Gold's trust account. Only the applicant and her son were authorised to operate the trust account. The investigation by the Office of Fair Trading disclosed that the $80,000 had been transferred in April 2010 from the B-Gold trust account to an account in the name of "A Consultant Tradesman", apparently controlled by the applicant's son. 6The delegate eventually determined, on 19 September 2011, to take disciplinary action against the applicant as follows: * in accordance with s 192(1)(h) of the Act, to declare the applicant to be a disqualified person for a period of five years; and * in accordance with s 192(1)(i) of the Act, to disqualify the applicant from being involved in the direction, management or conduct of the business of a licensee for a period of five years. 7For completeness, I note that a similar determination was made in relation to the applicant's son, although in his case the period of disqualification was seven years rather than five. That period of disqualification has since been affirmed by the Tribunal. Subsequent events 8On 28 November 2011 the applicant pleaded guilty to one count of fraud (arising from the transfer of the $80,000 in April 2010) in that she dishonestly obtained a financial advantage (s 192E(1)(b) of the Crimes Act 1900). She was convicted and sentenced to 15 months imprisonment, to be served by way of home detention. 9Her appeal to the District Court against the severity of the sentence was unsuccessful. On 3 September 2012 the District Court confirmed the sentence, imposing a non-parole period of 9 months. The Court also confirmed the other orders of the Magistrate, including an order for compensation in the amount of $80,000, payable to the Property Services Compensation Fund within 28 days. Relevant legislative provisions 10A natural person is eligible to hold a licence under the Act only if, among other things, he or she is a "fit and proper person to hold a licence" and is not a "disqualified person": s 14(1)(b) and (d). 11One of the categories of person who is a "disqualified person" is a person who "has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years": s 16(1)(a). An exception is where the Director-General determines under s 16(2) that the offence should be ignored, but such a determination must be based on "the time that has passed since the offence was committed" or "the triviality of the acts or omissions giving rise to the offence". 12Disciplinary action can be taken against a licensee on any one or more of the grounds set out in s 191 of the Act. Those grounds include, as the respondent submits are relevant to this case, the following: * paragraph (a) - the person has contravened a provision of this Act or any other Act administered by the Minister, or the regulations under any such Act, whether or not the person has been prosecuted or convicted of an offence in respect of the contravention; * paragraph (c) - the person has, in the course of carrying on business or exercising functions under the licence or certificate of registration, acted unlawfully, improperly, unfairly or incompetently; * paragraph (d) - the person is a disqualified person or is otherwise not eligible under section 14 to hold a licence or certificate of registration; * paragraph (e) - the person is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee. The parties' submissions 13The respondent submits that the circumstances outlined in [3]-[9] of these reasons render the applicant not a fit and proper person for the purposes of the Act. 14On the other hand, the applicant submits that she is a fit and proper person. She bases that submission on two broad propositions. 15One of those propositions is that she has worked as a real estate agent for 25 years, in both New Zealand and Australia, and has never done anything wrong in the past. 16She has provided some character references which, she says, support her claim of fitness and propriety, but they really do little to assist her. One is dated March 2009, which of course predates by over a year the circumstances that led to her conviction in the Local Court. Another was written in August 2011, and makes no reference to the charges against her. Only one of the references she has provided acknowledges the events in question. The reference focuses on her being a "very committed and hard-working mother" and praises her "dedication to her family and honesty to her friends". 17The second proposition is that her conviction is somehow flawed. She explained to me during the hearing that she did not transfer the money, and that her son did not go to the bank to carry out the transaction by which the $80,000 was withdrawn as cash (although the bank says otherwise: page 136 of Exhibit R1). Beyond that she provides no explanation of what happened. There is a vague reference to the fact that the agency had some employed staff working for it, although it is not clear what I am meant to make of that. Consideration 18The offence of which the applicant has been convicted is a very serious one; so much was acknowledged by Judge Zahra in his Honour's reasons for upholding the 15 months home detention sentence. The applicant's conviction is sufficient to render her a disqualified person under s 16(1)(a) of the Act, and in the circumstances there is no warrant for ignoring that outcome in reliance on s 16(2). 19Furthermore, the applicant's failure to accept or acknowledge her wrongdoing (despite her guilty plea) or to exhibit any insight into the seriousness of her behaviour renders her not a fit and proper person to be licensed as a real estate agent. 20There exist multiple grounds on which disciplinary action can be taken under Part 12 of the Act. In my view, paragraphs (a), (c), (d) and (e) of s 191 are all enlivened. The questions then become whether disciplinary action should be taken, and if so, what that action should be. 21I am comfortably satisfied that disciplinary action should be taken in this case. 22I am also comfortably satisfied that the appropriate period of disqualification is seven years. Given the applicant's conviction (which occurred after the initial departmental determination in September 2011) and the applicant's continuing state of denial in relation to her wrongdoing, a disqualification period of five years does not provide a sufficient level of protection for the public. 23The decision under review is accordingly varied so as to impose a disqualification period of seven years from 19 September 2011. I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal. Registrar ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 December 2012