1. Allegations 1 to 4 inclusive have been made out.
2. On each allegation:
   • (a) the respondent is reprimanded pursuant to s.28A(2) of the Estate Agents Act 1980 (the Act);
   • (b) I declare that the respondent is ineligible to hold a license or to be an agent's representative until 30 April 2021. This declaration is made pursuant to s.28A(1)(f) of the Act.

**Note: these written reasons consist of an edited transcription of reasons given orally at the conclusion of the hearing.

1. This is an application for an enquiry by the Acting Director of Consumer Affairs in relation to James-Paul Moularas who was an agent's representative in October and November of 2012. He worked as his uncle's estate agency firm in Melbourne. He was originally from Adelaide and he was born on 10 October 1990. He started work with his uncle's company known as Secure Invest Property Group Pty Ltd in September 2010. I note that his uncle is a registered estate agent and Secure Invest Property Group is also a registered estate agent and his uncle was the person in effective control of that company.
2. The respondent had several duties inter alia, including collection of rent monies and bonds from tenants. In the period from 11 October 2012 to 15 November 2012, he misappropriated the sum of $14,753 being both rent monies and bond monies paid in cash to him as a result of him letting residential rental properties to five different people.
3. A number of affidavits have been tendered in this proceeding and in particular there has been an affidavit from Miss and Mr Forucci and Ms Leaf, who were respective tenants of these properties, who said that they paid the money in cash and the money was for either bond money or bond and rent money. The five properties included one in Travancore which was rented to Ms Hand, one in East Brunswick which was rented to Mr Forucci, one in Preston, one in St Kilda East which was rented to Ms Leaf, and one in Brunswick.
4. The respondent confessed his misdeeds to his employer on or about 20 November 2012 and the money has been repaid not by the respondent but by his parents and his uncle.
5. There are four allegations against the respondent and I incorporate the Notice of Allegations into these reasons by reference. However, as I go through each allegation, I will summarise it briefly.
6. Allegation 1 concerns a breach of s.92(b)(1) of the Estate Agents Act 1980 which I will refer to as the Act. That section provides, without affecting the operation of Division 2 of Part 1 of the Crimes Act:

Any agent's representative or employee of an agent at an agency business who be fraudulently omits to account for or deliver or pay any monies received or held by him or her in the course of his or her duties as an agent's representative or an employee.

1. In this particular instance it seems clear that the respondent failed to account for the monies received from Ms Hand, Mr Forucci and Ms Leaf in respect of these properties. The monies were misappropriated as they were not paid into Secure Invest Property Group's trust account, nor were relevant bond payments forwarded to the Residential Tenancy Authority by Mr Moularas. Thus, I find the first allegation is made out pursuant to s.91(2)(b)(1). I am satisfied that as a result of the affidavit evidence which has been filed in this proceeding I do not need to go through that material and I incorporate those affidavits into this decision by reference.
2. The second allegation spans from 11 October 2012 to 15 November 2012 and the allegation is made pursuant to s.59(6) of the Act. It alleged that the respondent failed to pay forthwith to the licensed estate agent for whom he was acting as an agent's representative to a trust account specified by the agent all monies received by him or on behalf of any person agent's representative in any transaction in his capacity as an agent's representative in contravention of s.59(6) of the Act. Section 59(6) of the Act requires every agent's representative to pay forthwith to the licensed estate agent for whom he was acting as an agent's representative to a trust account specified by the agent all monies received from or on behalf of any person by the agent's representative.
3. It is clear especially from the evidence of Mr Magafas and that of Ms Ezzard, the bookkeeper, that in fact the respondent has committed the offences in relation to this allegation. The offences are in relation to the whole five properties which I have referred to. In particular, they are related to Ms Hand, Mr Forucci and Ms Leaf. I find these allegations have been proved and I am satisfied that they have occurred.
4. Allegation three concerns a breach by the respondent of Regulation 19 of the Estate Agent Professional Conduct Regulations 2008 Statutory Rule 46 of 2008 (the Regulations). Regulation 19 requires an agent's representative must at all times act fairly and honestly to the best of his or her knowledge and ability in the performance of his or her functions as an agent's representative. Taking money in cash and appropriating such money to one's own use is clearly not acting fairly and honestly in relation to his duties as an agent. It is alleged that the conduct is misleading and deceptive in that he failed to deposit the money in the safe of the office of the estate agent which he said he was going to do. He told that to Mr Forucci and I find that this conduct is proved.
5. Allegation four relates to conduct between 11 October 2012 and 15 November 2012 as the respondent as an agent's representative. It relates to unprofessional conduct. Unprofessional conduct is conduct that would not be expected by a member of the profession or member of the public. In the matter of Consumer Affairs Victoria v Cullen 2013 VCAT 2146 which matter involved a licensed estate agent, Member French held at paragraph [104]:

The traditional test is that the conduct would be reasonably regarded as disgraceful or dishonourable by the respondent's professional brethren of good repute and competency. It also captures conduct which falls short to a substantial degree of the standard of professional conduct observed or approved by members of the profession of good repute and competency.

I have no doubt in my mind that the agent's representative's conduct, the respondent herein, would come well within that category and I have no difficulty in finding that that allegation is proved.

An agent's representative must not engage in conduct that is unprofessional or detrimental to the reputation or interest of the estate agency industry.

1. I have no doubt in my mind that stealing money does fit squarely into that category. Therefore, I find all allegations proved, that is allegation four.
2. Mr Tziotis, solicitor for the applicant, has addressed me on the question of penalty and the determinations that I may make are contained in s.28A of the Act. The determinations that he wishes me to make are pursuant to s.28A(a) and (f). Section (a) is reprimanding the respondent and section (f) is to declare any person to be ineligible to hold a license or be an agent's representative either permanently or temporarily.
3. Also in oral submissions, solicitor for the applicant asked that I should fine the respondent, however after having discussions with him, Mr Tziotis made it clear that if a declaration was made pursuant to section 28A(a) and (f), he would not be pursuing the question of a fine.
4. The cases are clear that the three matters that I must consider in relation to imposing a determination is to protect the public, protect the integrity of the profession and a deterrent.
5. In relation to the protecting the public and protecting the integrity of the profession, I refer to the decision of Mario Inglesi v Estate Agent's Board which was in the Supreme Court of Victoria before His Honour Justice Murphy, proceeding number M27328/1988 made on 15 August 1989. In that decision, His Honour stated five paragraphs before the order was made:

If an estate agent is to be disqualified, the purpose for which the Tribunal should have in mind is not the punishment of the individual, (though it may appear to be punishment to him), but the importance of protecting the public and the necessity to maintain the standards and conduct of the estate agent's business.

There is no doubt that the Act has these considerations in mind as its primary purpose and the Tribunal imposing a "penalty" for serious breaches (as it has found) or rules professional conduct, must bear in mind the purpose of the Act when determining what penalty is appropriate.

1. In like terms, in Cichello v Estate Agent's Licensing Authority a decision of the Court of Appeal on 19 May 1998, proceeding BC9802038, Justice Buchanan in appeal on the fifth page stated as follows:

In determining whether it is satisfied that it is not contrary to the public interest to give permission under section 31C(3) of the Act, the Tribunal in my opinion was required to take into account the circumstances of the offence. Those circumstances were directly on the question of risk and detriment to which members of the public are affected by the appellant conducting the business of the real estate agent. Other factors may affect the nature and the degree of harm to members of the public posed by the violent offender acting as an estate agent but the starting point must be circumstances constituting the offence.

1. In this particular case, the circumstances constituting the offence are that the respondent set out to steal and appropriate the money for his own use. I must take into account the fact that the respondent confessed this misappropriation to his employer on or about 20 November. Attached to one of the affidavits is a letter from the employer to the applicant which makes it clear that the respondent was on drugs and this is what appears to have caused his problem. Attempts have been made to rehabilitate. I am not sure as to the success or otherwise of those attempts. The respondent is not here and I have been told nothing about his current circumstances. I believe he is living in Adelaide.
2. On the question of deterrence, Judge Ross (as he was then) in Legal Services Commissioner v Brott 2008 VCAT 2399 at paragraph [67] stated:

The concept of general deterrence of others by the punishment of an offender is that an understanding that an offence is followed by substantial adverse consequences will prevent others from committing the offence.

1. In this particular instance, the offence which the respondent has committed is of a very serious nature. Honesty is something that the community is entitled to expect in relation to an estate agent and their representatives. Any person who is less than honest deserves to be treated severely. It is important that the person be treated severely so that others will not follow the bad example that has been set by the respondent. Given these circumstances, I have no doubt that it is appropriate to reprimand the respondent. That is something that has been asked for and I have no problem in that.
2. It has also been asked that I make a declaration that the respondent be ineligible to hold a license or be an agent's representative either permanently or temporarily. I have considered banning the respondent permanently but I believe that as I understand it, this appears to be his first offence. In any event, nothing has been alleged against him. Given that circumstance, I believe that it is appropriate that he suffer a long ban of ineligibility. Given those circumstances, in my view, a ban of seven years is appropriate. Therefore, I will declare that the respondent be ineligible to hold a license under the Act or be an estate agent's representative for a period of seven years. As I have previously said, I do not think it is appropriate given the orders that I have otherwise made that there should be a fine. I will make those orders accordingly.