Real estate and business agent - Duty to act fairly and honestly

Code of Conduct for Agents and Sales Representatives 2011 (WA), s 7(1)

Real Estate and Business Agents Act 1987 (WA), s 103(1), s 103(2)

Agent found to have breached the obligation to act fairly and honestly

An agent claimed to have made an agreement with his principal to vary the terms of the management authority. No such agreement had been reached. Despite this, the agent amended the management authority to increase the rate of the management fee and to extend the term. He then sent an amended copy to his principal as if the alleged agreement had been made. The agent did not draw the amendments to the principal's attention.

The Tribunal found that in so doing, he had not acted fairly and honestly contrary to s 7(1) of the Code of Conduct for Agents and Sales Representatives 2011 (WA).

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Johnson v Sheppard [2005] WASCA 13

Medical Board of Western Australia and Bham [2006] WASAT 190

Medical Board of Western Australia and Wright [2010] WASAT 48

1 On 25 November 2014, the Commissioner for Consumer Protection (the Commissioner) made an application to the Tribunal under s 103(2) of the Real Estate and Business Agents Act 1978 (WA) (the Act) for the Tribunal to determine the following issues:

1.1. is there proper cause for disciplinary action pursuant to s. 103(2)(iii) of the Real Estate and Business Agents Act 1978 (Act) in respect of the First and Second Respondents by reason of the conduct alleged in the Statement of Issues, Facts and Contentions; and

1.2. if yes, what sanction should the Tribunal impose pursuant to section 103(1) of the Act.

There shall be proper cause for disciplinary action against an agent if ­

...

(c) the agent is acting or has acted in breach of -

...

3 The agents code of conduct is the Code of Conduct for Agents and Sales Representatives 2011 (WA) (Code). Section 7(1) of the Code provides that an agent must act fairly and honestly.

If, in a proceeding commenced by an allegation under section 102(1) against an agent, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things -

(a) reprimand or caution the agent;

(b) impose a fine not exceeding $10 000 on him;

(c) suspend or cancel his licence and any triennial certificate in respect thereof and in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from holding a licence or triennial certificate, or both;

(d) where the State Administrative Tribunal is satisfied that the agent is acting or has acted in breach of section 60(3), 61(5) or 64(4) (the subsection) -

(i) order the agent to pay to a person specified by the State Administrative Tribunal the whole or part of any commission, reward or other valuable consideration received or held in contravention of a provision referred to in the subsection;

(ii) order that a demand by the agent in contravention of a provision referred to in the subsection for the whole or part of any commission, reward or other valuable consideration not be made, or if made, be withdrawn or varied in accordance with the order;

(e) where the State Administrative Tribunal is satisfied that the agent is acting or has acted in breach of section 64(1), order the agent to pay to the agent's principal any profit that the agent has made, or is, in the opinion of the State Administrative Tribunal, likely to make from the transaction.

5 In Johnson v Sheppard [2005] WASCA 13, the Full Court considered the meaning of 'fairly and honestly'. Murrary J with whom Templeman and Simmonds JJ agreed, said at [13] ­ [14]:

In Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 the High Court considered the concept of honesty as an element of the offence of conspiracy to defraud. The Court held that dishonesty in the context of that offence involved no special use of the word 'honesty' but merely the need to find whether the conduct in question was dishonest according to the standards of ordinary, decent people. That, in my opinion, is the sense in which the word is used in this context. The question was whether the appellant's conduct breached the duty to act fairly and honestly in the sense in which that word is ordinarily used. The question therefore was whether the appellant's conduct was dishonest according to the standards of ordinary decent people. That made it necessary to identify the quality of the conduct and the knowledge, belief or intention said to render it dishonest: see Peters per Toohey and Gaudron JJ at 504 [18].

There is no reason to suppose that standards of fairness and honesty applicable to real estate agents differ in any way from those applicable in the community at large, in relation to the standards to be observed when a person is acting for another, with a duty to act in the best interests of the principal, but not in such a way as to advance those interests improperly, according to the ordinary standards of reasonable, honest people. In particular, it would be no answer to say that the person concerned, whose honesty was under consideration, did not appreciate that ordinary, decent people would view his or her conduct as dishonest: Harle v Legal Practitioners Liability Committee [2003] VSCA 133 per Chernov JA, with whom Callaway and Buchanan JJA agreed, at [29] ­ [30], relying substantially on Peters and the later decision of the High Court in Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230, in a case concerned with the liability of a professional indemnity insurer for the conduct of a solicitor subject to a clause excluding liability for the dishonest acts or omissions of the assured.

6 The Commissioner alleges that Rick Anthony Bantleman and Centex Australasia Pty Ltd acted unfairly and dishonestly, contrary to s 7(1) of the Code, in that Mr Bantleman, on behalf of Centex, sent Edward Francis Chalwell an exclusive authority to act as managing agent which purported to, but which did not reflect the agreement reached between Mr Bantleman and Mr Chalwell on 6 August 2013.

7 The Commissioner bears the onus of proof. It is to the civil, not criminal standard, but the principles of Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw) apply. That is, while needing to be proved only on the balance of probabilities, the nature and seriousness of the allegations are relevant to the question whether the issues are proved to the reasonable satisfaction of the Tribunal and the process by which reasonable satisfaction is attained.

8 By reason of the nature of the allegations, the Tribunal must feel an actual persuasion of the occurrence or existence of the relevant facts in determining whether or not the case against the respondent is made out: Medical Board of Western Australia and Wright [2010] WASAT 48 at [31]; and see Medical Board of Western Australia and Bham [2006] WASAT 190 at [144].

9 The Tribunal found Mr Chalwell to be an honest and direct witness who answered questions to the best of his ability, even when the answer was against his interests. The Tribunal found Mr Bantleman to be a witness who answered questions in a manner calculated to advance his and Centex's interests. Where the evidence of Mr Chalwell and Mr Bantleman conflicts, we prefer the evidence of Mr Chalwell.

1. was a corporation registered under the Corporations Act 2001 (Cth);
2. held a real estate agent's licence and current triennial certificate first granted on 13 March 2009; and

1. carried on business as a real estate agent under the name 'Century 21 Centex Commercial'.

(Statement of Agreed Facts (SOAF) (Exhibit D) (SOAF 2))

1. held a real estate agent's licence and current triennial certificate first granted on 12 September 2011;
2. was and remains the sole director and secretary of Centex and the person in bona fide control of Centex; and

12 References to conduct by and/or the beliefs of Mr Bantleman in these reasons also refer to Centex.

13 On or about 24 December 2011, Centex entered into an Exclusive Authority to Act as Managing Agent For Commercial/Industrial Premises (Management Authority) with Mr Chalwell for commercial premises at 125 Radium Street, Welshpool (the Premises) (SOAF 4).

14 Mr Bantleman executed the Management Authority for and on behalf of Centex (SOAF 5).

15 Pursuant to clause 2.1 and Item 5 of the Schedule to the Management Authority, the term of the Management Authority was five years, however after two years either party could terminate on 30 days' notice (SOAF 6).

16 Pursuant to clause 6.1 and Item 7 of the Schedule to the Management Authority, Centex was entitled to a management fee of 6% of gross annual collections being the gross amount collected annually from the lessee of the Premises (SOAF 7).

17 Centex's usual management fee was 8% plus GST (SOAF 8).

18 Centex contends that it agreed a management fee of 6% rather than the 8% as a gesture of good will. It contends that the lower fee of 6% plus GST was agreed to on the understanding that after the initial two year period, a new management authority of not less the five years and a management fee of 8% plus GST would be entered into (Centex SIFC 2). Mr Chalwell denies such an understanding existed.

19 If the understanding was as alleged by Centex, it is difficult to explain why it was not reflected in the terms of the Management Authority. There would be no difficulty in incorporating such terms in the Management Authority.

20 The Tribunal does not accept that there was an understanding as alleged by Mr Bantleman.

21 Prior to December 2011, the Premises had been vacant. Mr Bantleman found a tenant for the Premises.

22 On or about 24 December 2011, Mr Chalwell as lessor and BTL Transport Pty Ltd (BTL) as lessee, entered into a lease in respect of the Premises (the First Lease) (SOAF 9). The term of the lease was five years with two five year options.

23 By August 2013, the First Lease between Mr Chalwell and BTL had been terminated (SOAF 10). That is, the occupancy by BTL and the payment of rent had lasted about 18 months of the five year term provided for in the First Lease.

24 Mr Chalwell's view was that the reason the First Lease had been terminated was because of Mr Bantleman's/Centex's handling of the tenant (T: 24 ­ 25).

Meeting between Mr Bantleman and Mr Chalwell concerning a second lease of the Premises on 6 August 2013

25 Following the termination of the First Lease, Mr Bantleman found a new tenant, Premier Metals Pty Ltd (Premier Metals) to lease the Premises. Premier Metals was prepared to pay a higher rent on more favourable terms and for a longer term than BTL (SOAF 11).

26 On 6 August 2013, Mr Bantleman met with Mr Chalwell at Mr Chalwell's home for the purpose of discussing a new lease of the Premises (SOAF 12).

The content of the negotiations at the 6 August 2013 meeting

27 The critical issue for the Tribunal to determine is whether or not the Management Authority was discussed at the meeting of 6 August 2013.

1. Mr Chalwell and Mr Bantleman negotiated a leasing commission of $12,100 payable to Centex (Commissioner SIFC 11); and
2. the parties did not negotiate or otherwise discuss amending any of the terms of the Management Authority; in particular, they did not negotiate or otherwise discuss amending the term of the Management Authority.

1. On 6 August 2013 Rick came to my home. I was pretty hot under the collar about having to pay another commission to Rick and told him that I thought he should take a financial hit as well as me for having to terminate the last tenant due to non-payment of rent and having to re-sign another tenant.

1. I began to get fed up with Rick's visit as he kept reminiscing about what his father had taught him. Rick told me that he wanted between $14,000 ­ $16,000 commission for the second tenant. I told Rick that he needed to cut the amount he was asking for in half and I offered to pay him $10,000.
2. Rick went on to say he wanted to be paid $12,000, I offered $11,000 and Rick agreed to this provided I paid the added GST; bringing Rick's commission to $12,100 which I agreed to pay.
3. As far as I was concerned my management agreement with Rick was based on the original agreement I signed which provided me with the option of terminating Rick after two (2) years of his appointment by giving thirty (30) days.
4. I do not remember whether or not Rick presented me with a leasing authority to sign during the meeting on 6 August 2013 but if I did, I did not receive a copy of the executed document from Rick.

On the afternoon of 6 August 2013 [Mr Bantleman] attended Mr Chalwell's home and provided him with the Leasing Authority. Mr Chalwell requested a discounted leasing fee due to the problems surrounding the termination of the first tenant. [Mr Bantleman] agreed to discount the leasing fee by $7,065.53 plus GST (From $18,065.53 plus GST to $11,000 plus GST) on the basis there was a longer management term for [Centex] from 5 years to 13 years and the management fee reverted back to the standard 8% plus GST rate. Mr Chalwell agreed to this, upon which the Leasing Authority was amended by hand to reflect the discounted leasing fee and initialled by Mr Chalwell.

(Centex SIFC 5.1)

Mr Bantleman's written evidence (Exhibit B) is:

1. On the afternoon of 6 August 2013, I went to Mr Chalwell's home and presented him with the Leasing Authority. Whilst I do not recall exactly what Mr Chalwell said, he said words to the effect that he wanted to be charged a discounted leasing fee due to the problems with the termination of the Initial Tenant.
2. I replied by saying words to the effect that because of the limited time remaining on the Management Authority and the previous reduction given in the management fee, I would only be prepared to discount the leasing fee if Mr Chalwell agreed to extend the management term to say 13 years and the management fee would be the First Respondent's usual 8% plus GST. If he was agreeable to this I could reduce the leasing from $18,065.53 plus GST to $11,000 plus GST.
3. I do not recall his exact words but Mr Chalwell agreed to my proposal.
4. I then amended the Leasing Authority by hand to reflect the discounted leasing fee which was then initialled by Mr Chalwell See document 3 in the RBD at page 26.

31 Mr Bantleman had prepared, and brought to the meeting, an offer to lease document signed by Premier Metals to present to Mr Chalwell (SOAF 13). Mr Chalwell signed the offer to lease at the meeting (the Second Lease).

32 At the meeting, Mr Bantleman negotiated with Mr Chalwell the amount of the leasing commission payable to Centex (SOAF 14).

33 Mr Bantleman prepared an Authority to Lease form (Leasing Authority) for Mr Chalwell to sign. Although not required to have Mr Chalwell sign the Leasing Authority, as the Management Authority already authorised Centex to lease the Premises, Centex elected to do so as a matter of good practice (Centex SIFC 4.2).

34 Mr Chalwell signed the Leasing Authority on 6 August 2013 (Exhibit B pages 26 ­ 39).

35 The Tribunal now turns to the Management Authority.

36 The alleged amendments to the Management Authority reflected a one third increase in the amount of the fee and an increase of eight years in the term of the Management Authority. They were not minor amendments.

37 Mr Bantleman expressed the view that the increase in the amount of the fee under the Management Authority was largely irrelevant because, although Mr Chalwell bore the fee, he was effectively reimbursed by the tenant. The Tribunal does not accept that an increase in the fee is irrelevant. An increase in the fee results in a benefit to an agent.

38 Mr Chalwell gave evidence that he originally sought a term of two years in the Management Authority because he did not know Mr Bantleman. Mr Chalwell's evidence was that he felt that having paid the leasing commission on five years for the First Lease when it was terminated after 14 or 16 months, Mr Bantleman was not entitled to receive a completely new commission on a new lease (T: 23). At the time the second offer to lease was brought to Mr Chalwell by Mr Bantleman, Mr Chalwell was unhappy with Mr Bantleman's services in relation to the First Lease (T: 9 ­ 10). It is inherently unlikely in these circumstances that Mr Chalwell would agree to a term of 13 years for the Management Authority, given that he was unhappy with Mr Bantleman's services under the Management Authority to 6 August 2013.

39 Mr Bantleman accepted that he did not make a written note of the agreement to amend the terms of the Management Authority. His explanation was that it was because the Leasing Authority was not the right document to note such an amendment (T: 58).

40 Mr Bantleman explained why the Leasing Authority was not amended. However, it provides no answer as to why a note could not have been made in another document or in a new document at the 6 August 2013 meeting.

41 Given the nature of the amendments, there is no reason why a note could not have been made of the meeting. The failure to do so weighs against an agreement having been made, as alleged by Mr Bantleman, between him and Mr Chalwell.

42 The Tribunal accepts Mr Chalwell's evidence that there was no discussion of the terms of the Management Authority.

43 The Tribunal does not accept that there was any scope for Mr Bantleman to misunderstand the terms that had been amended. This is because there simply was no discussion. It follows that Mr Bantleman knew that there had been no discussion of the terms of the Management Authority and no agreement to amend the terms. Mr Bantleman did not allege in his SIFC that the terms of the Management Authority had been amended.

44 Following the meeting of 6 August 2013, Mr Bantleman:

1. amended by hand the Management Authority by amending the term to 13 years and amending the management fee to 8%;
2. prepared a Tenant Annual Budget and Security Deposit & First Bond & Rent Calculator sheet for the Premises on the basis of a management fee of 8% plus GST; and

1. amended the leasing fee calculator to reflect a discount in the leasing fee of $7,065.53 plus GST (from $18,065.53 plus GST to $11,000 plus GST).

45 The Tribunal notes that Mr Bantleman prepared a new Leasing Authority although he was not required to do so. It is odd therefore that he did not prepare a new Management Authority rather than amending the existing Management Authority. Had he done so, it is likely that the amendments would have been more obvious.

46 Mr Bantleman amended the Management Authority by using white liquid paper to:

1. delete '6'% and to replace it with '8'%; and
2. delete '5 yrs, However after 2 years 30 Days Notice' and to replace it with '13 yrs'.

47 It strikes the Tribunal as out of the ordinary, if not extraordinary, that Mr Bantleman whited out the figures rather than preparing a new Management Authority or initialling the amendments himself and seeking to have Mr Chalwell initial them.

48 Mr Bantleman gave evidence that he was not aware that the ordinary manner in which a contract is amended is for the original text to be struck through and initialled (T: 64). The Tribunal does not accept Mr Bantleman's evidence.

49 The use of white liquid paper was not calculated to draw Mr Chalwell's attention to the amendments. Although in fact, Mr Chalwell did notice the change to the term he did not notice the change to the percentage rate (T: 18).

50 At 8:10 pm on 6 August 2013, Mr Bantleman emailed Premier Metals (Exhibit B page 26 onwards):

1. a copy of the signed offer to lease (Exhibit B page 26 onwards); and
2. the First Bond & Rent Calculator sheet and advised that $54,003.03 was payable as the first rent and bond. (Exhibit B pages 54 ­ 55)

51 The calculation of first rent and bond included the budgeted outgoings for management fees at 8% plus GST. This email was also copied into the email address of Mr Chalwell of nat_chalwell@hotmail.com (SOAF 16).

52 Mr Bantleman states that he 'emailed every person, including Mr Chalwell about this change. We also sent him the document by mail' (T: 59).

53 In fact, there is no express statement in the email or the attachments of 6 August 2013 that the rate and term have been amended.

54 If the amount of the rent had not changed, then an increase in the percentage of the management fee might have been more apparent by a simple comparison of the amount of the rent previously paid. The amount of the rent had changed with the new tenant. This meant that a change in the management fee was not apparent.

55 The fact that the percentage of management fee had increased was apparent only if Mr Chalwell had worked out the calculation himself by reference to the new rent. The percentage increase was not otherwise stated or apparent in the documents sent to Mr Chalwell on 6 August 2013.

56 Mr Bantleman prepared the amended Management Authority on 6 August 2013 (T: 69). Mr Bantleman advanced no reason as to why he did not, or could not have included, at least the amended page of the Management Authority in his email of 6 August 2013. Mr Bantleman's failure to attach the amended Management Authority to the email of 6 August 2013, when it had been prepared on that date, or to send it later on 6 August 2013, if it was prepared after 8:10 pm, tells against any agreement to amend the Management Authority as alleged by Mr Bantleman as having been reached. It is the first document listed in SOAF 15.

57 Mr Chalwell denied seeing the email of 6 August 2013.

58 When Mr Chalwell was cross­examined about receipt of the email of 6 August 2013, he willingly accepted that it would have been of interest to him to have seen it (T: 31). He did not try to underplay its importance as an explanation as to why he did not receive it.

59 Mr Chalwell was cross­examined about the Tenant Annual Budget and Actuals (Exhibit B page 53). That document states that the management fee is 8.8% (that is, 8% plus GST). However, that is only discernible on a colour copy, not a black and white copy. In fact, in the course of the hearing, a colour copy was substituted for the black and white copy in Exhibit B. That document was not sent as an attachment to the email of 6 August 2013 (T: 33). In any event, even if it had been sent, (unless it was printed out on a colour printer) it would not have been apparent to a person reading it. During the course of the hearing, it became apparent that this document was not sent as an attachment to the email of 6 August 2013, so there was no reason for Mr Chalwell to have seen it.

60 It is difficult to understand why Mr Bantleman did not send the Tenant Annual Budget and Actuals with a request that it be printed in colour which would have expressly shown the increase in the percentage.

61 The Tribunal notes that to perhaps the last month or two of 2013, Centex charged a management fee of 6% (T: 82). If Mr Chalwell had checked the amount of commission that was charged by reference to the monthly statements received by him from Centex, it would have shown that a commission of 6% was being charged, not 8%.

62 It would have been simple to include an express statement that the percentage of the management fee had increased and that the term had been extended. Yet, Mr Bantleman did nothing to expressly draw the alleged amended terms to Mr Chalwell's attention.

1. the amended Management Authority was sent to Mr Chalwell on 8 August 2013 by ordinary post with sign here stickers indicating for him to initial the amendments agreed; and
2. on 8 August 2013, the new tenant paid the first bond and rent amount of $54,003.03 into Centex's trust account acknowledging and accepting the management fees at 8% plus GST.

64 There is evidence that the amended Management Authority was posted on 8 August 2013, but that is only evidence of its dispatch, not of its receipt (Exhibit B page 39). Mr Chalwell denies that he received the amended Management Authority (T: 11; T: 16).

65 Centex's and Mr Bantleman's case, as stated by their counsel in the course of her opening, was that Mr Bantleman had:

... whited out the change [to the Management Authority] and then sent it to Mr Chalwell to initial it. That was the purpose for which it was sent to Mr Chalwell and that ­ so he made the change, annexed the Sign Here sticker next to each of those two changes, and then waited, in fact, to receive back the initialled copy of the document from Mr Chalwell.

(T: 5).

66 Mr Bantleman did not check to see if the amended Management Authority was returned (T: 80). Mr Bantleman's evidence was that it was only when Mr Chalwell terminated the Management Authority that he became aware that an amended Management Authority had not been returned (T: 89).

67 Given that the purpose of sending the amended Management Authority to Mr Chalwell was allegedly to have him initial it and return it to reflect the alleged agreement of 6 August 2013, the failure by Mr Bantleman to check that it was returned tells against the existence of the alleged agreement.

68 The Tribunal does not accept that Mr Bantleman placed 'sign here' stickers on the amended Management Authority of 8 August 2013.

69 On or about 16 August 2013, Mr Bantleman, sent Mr Chalwell an amended Exclusive Authority to Act as Managing Agent For Commercial/Industrial Premises (Exhibit A page 27) under cover of a letter which stated, among other things, 'For your records we attach a copy of "Exclusive Authority to Act as Managing Agent For Commercial/Industrial Premises"' (SOAF 17). On Mr Bantleman's evidence, a second copy of the amended Management Authority was sent. No real reason was advanced as to why a second copy was sent.

70 The letter of 16 August 2013 was a standard letter sent by Centex's property management team at the commencement of a lease (SOAF 18).

71 The amended Management Authority was in the same terms as the Management Authority other than:

1. the term of the Amended Management Authority was stated to be 13 years; and
2. Centex was stated to be entitled to a management fee of 8% plus GST of gross collections per annum.

72 The copy of the amended Management Authority sent to Mr Chalwell was a poor copy (Exhibit A page 27).

73 When Mr Chalwell received the amended Management Authority of 16 August 2013, he noticed the change to the term but not to the percentage management fee.

74 Mr Chalwell gave evidence that the amended Management Authority he received was sent without a covering letter. He did not understand that he had to initial it and return it (T: 47).

75 Despite the fact that the amended Management Authority did not reflect any agreement between he and Mr Bantleman, Mr Chalwell did nothing about it. Mr Bantleman and Centex argued that this was because the amended Management Authority reflected the agreement made between Mr Bantleman and Mr Chalwell.

76 Mr Chalwell had already decided on 6 August 2013, when Mr Bantleman came to his home for the meeting, that he was not going to continue with it beyond two years (T: 50).

77 Mr Chalwell's explanation for not doing anything about it at that time was because the period of two years referred to in the Management Authority expired on 24 December 2013. He would then be entitled to terminate the Management Authority on 30 days' notice. The amendments made by Mr Bantleman without Mr Chalwell's agreement, therefore gave Mr Chalwell a further reason to terminate the Management Authority at the expiry of the two years (T: 22). The amended Management Agreement gave him 'more ammunition' (T: 50).

78 The Tribunal accepts Mr Chalwell's explanation. Accordingly, it does not draw any adverse inference against Mr Chalwell from his failure to do anything about the fact that the amendments did not reflect any agreement between him and Mr Bantleman.

The amended Management Authority of 8 August 2013 and 16 August 2013

79 The Commissioner alleges Mr Bantleman, and therefore Centex contravened s 7(1) of the Code by sending to Mr Chalwell the amended Management Authority containing the amended terms, which terms did not reflect the agreement between the parties.

80 The Commissioner alleges that this constituted dishonest and/or unfair conduct in that sending the amended Management Authority constituted, in the circumstances, a false representation that the document reflected terms agreed between Mr Bantleman and Centex and Mr Chalwell.

81 In either case, that is, if Mr Chalwell received both versions of the Management Authority or he received only the later version, there was an assertion by sending the amended Management Authority to Mr Chalwell, that he had agreed to the amended terms on 6 August 2013.

82 This is the case because the 'first' amended Management Authority, which is asserted to have been sent by Mr Bantleman, contained, on his evidence, a 'with compliments' slip instructing Mr Chalwell how to execute the amendments and with 'sign here' stickers indicating the amendments. These are all assertions that the parties had agreed to the amended terms.

83 The 'second' amended Management Authority was sent under the cover of a letter which simply asserted that it was a copy of the agreement between Mr Bantleman and Mr Chalwell. There was nothing to draw Mr Chalwell's attention to either of the amended terms and, indeed, he confirmed in cross­examination that he did not notice that the management fee had been increased.

84 In either case, the document or documents sent to Mr Chalwell in the form of the amended Management Authority asserted that the amended terms had been agreed.

85 It cannot be accepted, as suggested by the Respondents' counsel in cross-examination of Mr Chalwell, that the first amended Management Authority constituted something in the nature of an 'offer' to Mr Chalwell. There is no basis in the evidence of Mr Bantleman to suggest that he was merely making a further offer or counter-offer or, in essence, continuing in some way the negotiations which allegedly occurred on 6 August 2013.

86 The Tribunal accepts Mr Chalwell's evidence as to what was agreed at the relevant meeting, that is, only the leasing fee for the second lease. The subsequent sending to Mr Chalwell of the 'amended' Management Authority was, in the circumstances, dishonest, or at the least unfair, because 'ordinary, decent people' would consider it so. That is, the sending to a client of an allegedly amended agreement in circumstances which represent to that client that the terms reflect a concluded agreement between the agent and the client is conduct which ordinary, decent people would consider to be dishonest and unfair.

1. the term of the Management Authority and the management fee were not discussed at the meeting on 6 August 2013; and
2. Mr Bantleman amended the term of the Management Authority and increased the management fee knowing Mr Chalwell had not agreed to these amendments and sent an amended copy to Mr Chalwell.

88 The Tribunal accepts that two people can have differing recollections about an event and the fact that the Tribunal prefers one witness's recollection over another does not mean that the other must be lying.

89 Mr Bantleman's conduct does not reflect a simple incorrect recollection of what was discussed at the meeting of 6 August 2013. His evidence needs to be considered in the context of what he did at the meeting and what he did thereafter. The Tribunal finds that Mr Bantleman knew that the agreement as alleged had not been made. For that reason he took no steps to draw the alleged amendments to Mr Chalwell. Mr Bantlemen's subjective intention was not to bring the alleged amendments to Mr Chalwell's attention because no such agreement to amend had been made.

90 Mr Bantleman's and therefore Centex's conduct was dishonest and unfair under s 7(1) of the Code.

1. The Tribunal finds that Centex Australasia Pty Ltd and Rick Anthony Bantleman breached s 7(1) of the Code of Conduct for Agents and Sales Representatives 2011 (WA) by not acting fairly and honestly in that:

(a) the term of the Management Authority and the management fee were not discussed at the meeting on 6 August 2013; and

(b) Mr Bantleman amended the term of the Management Authority and increased the management fee knowing Mr Chalwell had not agreed to these amendments and sent an amended copy to Mr Chalwell.

1. The Commissioner for Consumer Protection is to file and send its submissions as to penalty by 30 November 2015.
2. The respondents are to file and send their submissions as to penalty by 14 December 2015.
3. If the parties wish to make oral submissions, they are invited to contact the President's Associate by 21 December 2015 to fix a hearing date.

I certify that this and the preceding [90] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)

CITATION : COMMISSIONER FOR CONSUMER PROTECTION and CENTEX AUSTRALASIA PTY LTD [2015] WASAT 129 (S)

Real estate and business agent - Duty to act fairly and honestly - Breach of Code of Conduct - Penalty

Code of Conduct for Agents and Sales Representatives 2011 (WA), s 7(1)

Real Estate and Business Agents Act 1987 (WA), s 101(1)(a), s 103(1), s 103(2)(c)(iii)

Settlement Agents Act 1981 (WA), s 82, s 83, s 84(1), s 84(2)(c)(iii)

Respondents' licences and triennial certificates suspended for four months

Respondents to pay Commissioner of Consumer Protection's costs of $12,782

The agents were found to have breached the requirements of s 7(1) of the Code of Conduct for Agents and Sales Representatives 2011 (WA), under the Real Estate and Business Agents Act 1987 (WA), to act fairly and honestly. Whilst recognising that unfair and dishonest conduct is always serious, the conduct was at the lower end of seriousness.

The Tribunal reprimanded the agents, imposed a suspension of four months and ordered the agents to pay the Commissioner for Consumer Protection's costs.

A Solicitor v Council of the Law Society of NSW [2004] HCA l; [2004] HCA 1; (2004) 216 CLR 253

Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438

Barwick v Council of the Law Society of NSW [2004] NSWCA 32

Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54

Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129

Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62

Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545

Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992)

Law Society of New South Wales v Foreman (1994) 34 NSWLR

Law Society of New South Wales v Walsh [1997] NSWCA 185

Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)

Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)

Legal Profession Complaints Committee and Leask [2010] WASAT 133

Legal Profession Complaints Committee and Wells [2014] WASAT 112

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Legal Profession Complaints Committee v Detata [2012] WASCA 2014

Legal Profession Complaints Committee v Lashansky [2007] WASC 211

Legal Profession Complaints Committee v Love [2014] WASC 389

Legal Profession Complaints Committee v Masten [2011] WASC 71

Legal Profession Complaints Committee v O'Halloran [2013] WASC 430

Legal Profession Complaints Committee v Segler [2014] WASC 159

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

New South Wales Bar Association v Maddocks [1988] NSWCA 102

NSW Bar Association v Hamman [1999] NSWCA 404

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97

Quinn v Law Institute of Victoria [2007] VSCA 122

Re A Practitioner (1984) 36 SASR 590

Re H (a Barrister) [1981] 1 WLR 1257

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308

Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159

1 On 23 November 2015, following a hearing over two days, the Tribunal found that Centex Australasia Pty Ltd (Centex) and Rick Anthony Bantleman, who held real estate agents' licences, to have not acted fairly and honestly contrary to s 7(1) of the Code of Conduct for Agents and Sales Representatives _201_1 (WA) (Code of Conduct) (see Commissioner for Consumer Protection and Centex Australasia Pty Ltd [2015] WASAT 129 (Centex Decision)).

2 The Tribunal found that Centex and Mr Bantleman breached s 7(1) of the Code of Conduct by not acting honestly and fairly in that:

1. the term of the Management Authority and the management fee were not discussed at a meeting on 6 August 2013 between Mr Bantleman and the principal, Mr Chalwell; and
2. Mr Bantleman amended the term of the Management Authority and increased the management fee knowing Mr Chalwell had not agreed to these amendments and sent an amended copy to Mr Chalwell.

3 The Tribunal is empowered to impose penalties pursuant to s 103(1) of the Real Estate and Business Agents Act 1987 (WA) (the Real Estate Agents Act).

4 In its submissions filed 30 November 2015, the Commissioner for Consumer Protection (Commissioner) sought the following orders:

1. a suspension of each agent's licence and triennial certificate for 12 months;
2. the suspension to commence 14 days after the making of the order;
3. the agents be reprimanded; and
4. the agents pay the Commissioner's costs of $12,782.

5 In their submissions filed on 14 December 2015, Centex and Mr Bantleman sought orders that a fine be imposed.

The Real Estate Agents Act and the Settlement Agents Act 1981 (WA)

6 Section 101(1)(a) of the Real Estate Agents Act provides:

The Commissioner may from time to time prescribe, and publish in the manner prescribed by the regulations a code of conduct for agents[.]

7 Section 82 of the Settlement Agents Act 1981 (WA) (Settlement Agents Act) provides:

The Commissioner may, with the approval of the Minister, make rules prescribing a code of conduct for settlement agents.

8 Section 103(2)(c)(iii) of the Real Estate Agents Act provides:

There shall be proper cause for disciplinary action against an agent if the agent is acting or has acted in breach of the agents code of conduct;

9 Section 84(2)(c)(iii) of the Settlement Agents Act provides:

There shall be proper cause for disciplinary action if the settlement agent is acting or has acted in breach of the settlement agents' code of conduct[.]

10 Section 103(1) of the Real Estate Agents Act relevantly provides:

(1) If, in a proceeding commenced by an allegation under section 102(1) against an agent, the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things ­

(c) suspend or cancel his licence and any triennial certificate in respect thereof and in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal, from holding a licence or triennial certificate, or both;

11 Section 84(1) of the Settlement Agents provides:

If, in a proceeding commenced by an allegation under section 83 the State Administrative Tribunal is satisfied that proper cause exists for disciplinary action, the State Administrative Tribunal may do any one or more of the following things ­

(a) reprimand or caution the settlement agent;

(b) impose a fine not exceeding $10 000 on him;

(c) suspend or cancel his licence and any triennial certificate in respect thereof and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the State Administrative Tribunal or until the further order of the State Administrative Tribunal, from holding a licence or triennial certificate, or both.

12 The appropriate penalty is to be considered at the time of imposing the penalty and not at the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA l; [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [16]).

13 In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 (Paridis), the Court of Appeal set out the principles relevant to a breach of the Code of Conduct under the Settlement Agents Act. Those principles apply equally to a breach of the Code of Conduct under the Real Estate Agents Act. In Paridis at [25], Buss JA stated:

The character and purpose of disciplinary proceedings against a member of a profession have been examined on numerous occasions. The object of those proceedings is the protection of the public and the maintenance of proper professional standards. The maintenance of proper professional standards is conducive to the protection of the public. Disciplinary proceedings are not designed to punish the person who is disciplined. See, for example, Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 286; Clyne v New South Wales Bar Association [1960] HCA 40; (1961) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183-184; Re a Barrister and Solicitor; Ex parte Attorney-General for the Commonwealth (1972) 20 FLR 234 at 244; Re a Barrister and Solicitor (1979) 40 FLR 1 at 24­25; Re a Practitioner; Ex parte The Legal Practitioners Disciplinary Tribunal [2001] WASCA 204 at [6]-[7]. As Crawford J noted, in Law Society of Tasmania v Turner [2001] TASSC 129; (2001) 11 Tas R 1, at 24 [61], in the context of disciplinary proceedings against a legal practitioner:

The powers of the Court are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the profession which will continue its good reputation, and so protect, not only the future of the profession, but also its clients from harm. The Court's task is to uphold the dignity and standards of the profession and to enable it to do so, it has many powers, including the power to impose a fine not exceeding $20,000, to order payment of costs, to suspend and to strike off. Such orders are, of course, of a punitive nature but their imposition should not be regarded as sentences as for crimes and offences. The order the Court makes should be one 'which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct'. Dickens v Law Society [42/1981] at 16.

14 In Paridis at [30], Buss JA set out the relevant factors in assessing a penalty under s 83 of the Settlement Agents Act:

1. the conduct giving rise to the allegations and its seriousness;
2. the agent's explanation for the conduct;
3. the necessity to maintain proper standards among settlement agents and maintain public confidence in relation to the professional and ethical behaviour of agents;
4. the necessity for general deterrence; and
5. personal matters, of a mitigatory nature, including the agent's professional behaviour before and after the incidents in question, and the extent of the agent's rehabilitation.

In Legal Profession Complaints Committee and Wells [2014] WASAT 112 (Wells) the Tribunal set out a list of 12 factors to be considered. The matters set out in Wells are illustrative of the matters set out by the Court of Appeal in Paridis.

The matters set out below are interrelated and are not mutually exclusive. The list of matters is not exhaustive and it is not a code. The twelve factors are:

1. any need to protect the public against further misconduct by the agent (Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 (Craig) at [47]; Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Law Society of New South Wales v Foreman (1994) 34 NSWLR (Foreman at 440C; NSW Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [77]);
2. the need to protect the public through general deterrence of other agents from similar conduct (Jemielita v Medical Board of Western Australia (unreported, WASC Library No 920584, 13 November 1992); Veterinary Practitioners Board of New South Wales v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]); Paridis at [30(4)]);
3. the need to protect the public and maintain public confidence in the profession by reinforcing high professional standard and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter an agent from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig at [64]; Johnson at [103]); Paridis at [30(3)]);
4. in the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow agents can place reliance on the word and conduct of the agent (Johnson at [109]; Foreman at 445B-445G);
5. whether the agent has breached any:

1. Guidelines or Code of Conduct, issued by the relevant professional body; and

1. whether the practitioner has done so knowingly;
2. whether the agent's conduct demonstrated incompetence, and if so, to what level;
3. whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E-442G; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54 at 62 and 63);
4. the agent's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]);
5. whether or not the agent understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the agent, since an agent who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 at [31]- [52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]);

The agent's conduct of the defence and the veracity and candour of his testimony will often be the best evidence as to whether any mitigating circumstances, including remorse, reform, character change and subsequent good deeds, are to be accepted (A Legal Practitioner (S) at [24]; Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108]­[109]; New South Wales Bar Association v Maddocks [1988] NSWCA 102).

Lack of remorse should not, in the absence of aggravating factors, be the predominate factor leading to a heavy sanction if otherwise a lighter sanction would be applied; Re H (a Barrister) [1981] 1 WLR 1257.

1. the desirability of making available to the public any special skills possessed by the agent;
2. the agent's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis at [30(5)]); and
3. the Tribunal may consider any other matters relevant to the agent's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).

15 All of the above matters are to be considered in the context of the Tribunal's findings as to liability, that is, how serious was the conduct and the agents' explanation for the conduct (Paridis at [30(1)]­[30(2)]).

16 Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).

17 The dominant purpose of the disciplinary provisions of the Real Estate Agents Act is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 (Detata) at [47] and Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).

18 It is the agent's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 267-268 and 271-272; A Solicitor [2004] NSW).

19 As the Tribunal explained in A Legal Practitioner (S) at [24]:

... [I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267-268 and 271-272[.]

Centex's and Mr Bantleman's conduct was essentially one incident, although the conduct took place over a number of days.

The jurisdiction of the Tribunal to cancel an agent's registration is exercised not for the purpose of punishing the agent concerned, but for the protection of the public and the reputation and standards of the profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].

Where an order for cancellation of an agent's registration is contemplated, the ultimate question is whether the material demonstrates that the agent is not a fit and proper person to remain an agent: A Solicitor [2004] NSW at [15].

An agent is not a fit and proper person to be a registered agent and should be removed from the register where the conduct is so serious that the agent is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 (Darveniza) at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]­[20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]­[28]); Love at [17]­[18]).

Suspension is a less serious result and differs from cancellation of an agent's registration because suspension is for a specified limited period.

The proper use of suspension is in cases where the agent has fallen below the high standards to be expected of such an agent, but not in such a way as to indicate that the agent lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of an agent (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the agent will be fit to resume practice (A Legal Practitioner (S) at [27]).

Factor 1 Is there a need to protect the public against further misconduct by Centex and by Mr Bantleman?

20 The duty to act fairly and honestly is central to an agent's obligation to their principles. Any breach of that obligation raises the risk of further misconduct because it reflects a breach of such a fundamental obligation. However, the risk of further misconduct is to be considered in the context of an agent's disciplinary history.

Factor 2 Is there a need to protect the public through general deterrence of other agents?

21 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public through general deterrence of other agents.

Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?

22 Given the fundamental obligation of agents to act fairly and honestly, there is a need to protect the public by reinforcing high professional standards and denouncing transgressions.

23 Centex's and Mr Bantleman's conduct was dishonest for the reasons set out in the Centex Decision.

24 The conduct was deliberate in the sense that Mr Bantleman knew that there had been no discussion of or agreement to the amended terms (Centex Decision at [43]). Therefore, the conduct went beyond a mere 'failure' to meet a standard or norm of conduct and was dishonest and unfair (Centex Decision at [86]). This is a serious example of a contravention of s 7 of the Code of Conduct.

25 The conduct was calculated to be of benefit to Centex and Mr Bantleman (Centex Decision at [37]).

Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct

26 Centex's and Mr Bantleman's conduct involved a serious breach of the Code of Conduct.

27 Centex's and Mr Bantleman's breach was isolated. Centex and Mr Bantleman had held a licence and triennial certificate for six years and seven years respectively. Mr Bantleman had worked as a chartered accountant for 20 years without a disciplinary complaint.

Factor 8 Centex's and Mr Bantleman's disciplinary history

28 Neither Centex nor Mr Bantleman has any disciplinary history.

Factor 9 Whether or not Centex and Mr Bantleman understands the error of their ways, including an assessment of any remorse and insight (or a lack thereof) shown by them

29 The Tribunal infers that Centex and Mr Bantelman understood the error of their ways in that they agreed to terminate the management authority upon Mr Chalwell requesting them to do so.

Factor 10 Are there any special skills possessed by Centex and Mr Bantleman?

Centex and Mr Bantleman do not possess any special skills.

Factor 11 Mr Bantleman's personal circumstances

30 Centex's and Mr Bantleman's submissions referred to the reduced income due to the downturn in the real estate industry. The Tribunal is not persuaded that this is a mitigating factor. An agent is obliged to comply with the Code of Conduct in good times and in bad.

31 Mr Bantleman's son has a medical condition which means that his wife cannot work. The Tribunal accepts that this may have an effect on the agent's quality of life. However, this cannot overcome the Tribunal's duty to protect the public.

Factor 12 Are there any other matters related to Centex's and Mr Bantleman's fitness to practise?

32 The amount of commission that Centex and Mr Bantleman might have obtained was relatively small. In terms of the management fee, the increase in the management fee was from 6% to 8%.

33 An increased management fee was only charged for two months, although that appears to have been as a result of an administrative error, rather than a conscious decision on Centex's and Mr Bantleman's part.

34 However, there was a significant increase in the terms of the agreement from five years to 13 years.

35 The financial risk the principal faced is to be contrasted with the amounts of money that are often involved in trust account breaches.

36 In terms of the seriousness of breaches relating to dishonesty, Centex's and Mr Bantelman's conduct falls at the lower end of the scale. However, it must be recognised that any breach relating to dishonesty is serious.

37 In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) at [30] (Roberman S), the Tribunal held that where a regulator successfully brings a complaint which justifies disciplinary action, there will usually be a strong case for the awarding of costs to that regulator.

38 Although the decision in Roberman S does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Commissioner to prosecute agents who breach the Code of Conduct is an important factor to be considered.

39 Having considered the circumstances, the Tribunal is satisfied that Centex and Mr Bantleman should pay the Commissioner's costs.

40 The Tribunal has considered the Commissioner's schedule of costs and is satisfied that they are reasonable.

41 The Tribunal finds that the risk to the public of further misconduct by Centex and Mr Bantleman is low.

42 However, the breach of an agent's duty to act fairly and honestly in the circumstances of this case was serious. Whilst the Tribunal finds that the breach is at the lower range of seriousness, the circumstances are such that the penalty must be an effective general deterrent and ensure that principals can have confidence that their agents will act fairly and honestly.

43 A period of suspension of four months is appropriate. The Tribunal is satisfied that after a period of suspension, Centex and Mr Bantleman will be fit to resume practice.

44 As Centex's conduct is effectively Mr Bantleman's, the penalty imposed on Mr Bantleman should also be imposed on Centex.

45 The Tribunal has allowed a period before the suspension takes effect so that arrangements may be made to transfer the business of Centex to another agent.

1. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman be reprimanded.
2. Centex Australasia Pty Ltd's and Mr Rick Anthony Bantleman's licences and triennial certificates be suspended for four months from 11 April 2016.
3. Centex Australasia Pty Ltd and Mr Rick Anthony Bantleman pay the Commissioner for Consumer Protection's costs of $12,782.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________