The applicant has filed two applications for an enquiry pursuant to s.33 of the (the ). The notices are against the respondent, Pamela Redford and her Company, Ambiance Property Group Pty Ltd (the ), of which Ms Redford is the sole Director and Secretary. The Company has been in existence since 2007 when Ms Redford commenced her conveyancing business operated through the Company. It should be noted that the Act came into operation in July 2008.
Ms Redford is a very experienced conveyancer. She has worked in a solicitors' office as a conveyancing clerk for some time. She had a conveyancing company in the 1980s; however, proceedings were taken against her by the Law Institute and her organisation was shut down.
The Conveyancers Act2006 has a number of requirements and the important requirements in that Act, relevant to this proceeding, are:
that if a Trust Account is kept it must be audited and be reconciled (see s.84 of the Act and Regulation 21Conveyancing (ProfessionalConduct and Trust Account and General) Regulations 2008);
[3]
It is also important that the person in charge of the conveyancing company allows the inspectors of the regulatory authority into the premises and makes available all the necessary documents for the inspectors to conduct their inspection to ensure the accounts of the company are in order. There must be co-operation between the company and the regulatory authority to facilitate the inspection.
The circumstances of this matter are fully set out in the three witness statements with which I have been provided. That is, an affidavit from a Mr King, tendered into evidence; Mr King did not attend for cross-examination. There is a witness statement by Mr Hin Uy Dan, who did attend and gave evidence which supported his statement. There is also an affidavit from Ms Emma Louise Bruton, who swore an affidavit which was tendered into evidence.
[4]
The Notices of Enquiry in both proceedings mirror each other entirely and I incorporate those notices by reference in this decision. In summary, those notices allege that a number of matters which I will deal with in turn. They allege that on 9 February 2012, Mr King and Mr Dan attended the offices of the respondents to monitor compliance with the Act and Trust Account records. There had been no approved audit of those records for the years 30 June 2010, 30 June 2011. Warnings were issued after that time. In spite of that matter, there was still no audit up until the time of the inspection. I note that there has been no audit up until this time. Further, I note that the only documents that have been produced in relation to the Trust Account are relevant bank statements. During the visit on 9 February 2012, a small deficiency in the Trust Account was found of some $402.80. That deficiency was made good straight away. There were follow up matters in relation to Consumer Affairs Victoria in that, on 9 February 2012, the respondent, Ms Redford, advised the inspectors that Trust Account auditors had been appointed and there would be reconciliations done within two weeks. That was not done. A notice to produce documents pursuant to s.154 of the Conveyancers Act2006 was given on the respondent Company (Ambience) requiring production of the documents. None of those documents were provided apart from the bank statements.
On numerous occasions, inspectors attempted to attend the premises where Ambience through its Director, Ms Redford, was operating; each time they were unsuccessful in gaining admittance. Those dates were 20 November 2012 and 4 April 2013. There were also many attempts by telephone calls and emails to contact Ms. Redford. It became evident that Ms Redford was unco-operative. As a result in September 2013, Notices were issued against Ms Redford and the Company pursuant to s.120 of the Australian Consumer Law and FairTrading Act 2012. Those Notices suspended the respondents from being able to work as conveyancers. Ultimately that suspension was stayed by Senior Member Proctor.
We have here a litany of unco-operation and failure to abide by the Act and by the Regulations: in particular, Regulation 21 of the Conveyancers(Professional Conduct Act and General) Regulations 2008.
The reason given by the respondent for her failure is that during this time she did not understand how to operate a Trust Account, or any account, or keep proper documentation. Dr Katz, a Clinical Psychiatrist, gave evidence before me today. He described how the respondent was suffering from depression and anxiety but was well on her way to improvement following some three years of treatment. He attributed the non co-operation demonstrated by the respondent and other matters complained of by the applicant to the former's psychiatric illness.
The respondent stated that all her documents have been in storage and she has been unable to access them. She also says she has been in contact with professional account and audit managers and, if permitted to continue work, would engage them because she has no other means of earning a living. There is a letter from an account, Mr Smith, who did not attend for cross-examination , which states that in 2012 he was approached to do Trust Account work by Ms Redford and met with her to discuss progress and methods. Little or no work has been done in this regard.
The matters which Mrs Redford and her Company have alleged to have breached are s. 84(1) of the Act in that the Company has failed to have Trust Accounts audited by the Approved Auditor. They are for the year ending 30 June 2010 to 2013 inclusive. Pursuant to s.78 and 79 of the Act there has been a deficiency in the Trust Account in early 2012 which contravened s.78 and pursuant to s.79 Ambiance failed to provide written notification of the deficiency .to the applicant. Pursuant to s.172 of the Act it is alleged that the respondents failed to give proper assistance to the inspectors as required by that section. Pursuant to s.38 of the Act the respondents failed to provide the applicant within fourteen days of a change of address which they were operating on. It became difficult to find the respondent and it seemed she was avoiding service. Pursuant to s.153 of the Act, it is alleged the respondents failed at all reasonable times to keep documents relating to the business available for inspection in a form that they could be readily inspected. Pursuant to s.172 of the Australian Consumer Law Act 2012, which is applied into the Act by s.183 of the Act, the respondents have hindered inspectors who were exercising power under part 8 of the Act in that the inspectors were refused entry when they arrived at premises in Glen Waverly on 20 November 2012 and the respondents failure to produce documents pursuant to s.154 of the Act. There has been a breach of the Trust Account Regulation 21 already referred to. All those matters are admitted by the respondents. They are all serious matters.
[5]
There are very clear guidelines: that I must bear in mind that the public must be protected, I have to protect the standards in the profession and I have to make a determination that will be a deterrent to others not to act in an unlawful manner. These matters were described by Justice Murphy in Mario Inglese v The Estate Agents Board at VSC 8900572 which is an unreported decision of the Supreme Court of Victoria [15 August 1989]. In that decision His Honour stated: "If an estate agent is to be disqualified the purpose for which the Tribunal should have in mind is not punishment of the individual though it may appear to be punishment to him but the importance of protecting the public is necessary to maintain standards in the conduct of the estate agent's business. There is no doubt that the Act has these considerations in mind as its primary purpose... when determining the penalty that is appropriate." In this particular case, s.1 of the Act states the purpose as follows: "To protect the interests of consumers in conveyancing services by regulating carrying out of conveyancing work by persons other than Australian Legal Practitioners."
In the matter of Chinchello v The Estate Agents Board, the Supreme Court of Victoria Court of Appeal on 19 May 1997 stated as follows, per Buchanan AJ: In determining whether it was satisfied that it was not contrary to the public interest stated : "The Tribunal in my opinion was required to take into account the circumstances of the offence. These circumstances bore directly on the question of risk and detriment to which members of the public were exposed by the appellant."
The offences in these proceedings when taken collectively are extremely serious offences indeed and constitute a course of conduct by the respondents. They show a total disregard by the respondents for the law and the regulations by which they must work. It is most unfortunate that Ms Redford has a depressive and anxiety illness and to some extent I sympathise with her. However, with that depressive illness it should have been very clear to her after warnings were given that she needed to make sure that everything was done according to law but she failed to do that and continues to fail to have her accounts audited or put into any proper state where they could be audited. This is a continuing matter.
In considering the various determinations that I may make under s.34 of the Act, the applicant has submitted that the licences of the respondents should be suspended for not less than twelve months. In fact, s.34(1)(d) of the act does not allow me to suspend the licence for any more than twelve months. I am able to make a condition on a suspension and one of those conditions would be that the respondents satisfy the applicant that they are either able to comply with the Regulations or that they have put in place a system that would allow them to comply with the Regulations. If they fail to do that, then they would not be able to conduct their business.
Further, I would not allow her to maintain a Trust Account until such time as she can demonstrate that she is properly able to look after a Trust Account either by herself or with the supervision of others. I do not think a fine is appropriate in this matter because the applicant tells me that she has little money and if a suspension is imposed that will become even more difficult for her. I do believe a reprimand is appropriate. That will be on the respondent's record and a reprimand in itself is very serious. Therefore I intend to suspend the respondent's licence for twelve months commencing on 1 May 2014 and I will impose certain conditions upon with which she will need to comply prior to being able to work again and I will issue a reprimand. I do not believe that any lesser determination would satisfy the public interest, protect the integrity of the conveyancing profession and act as a deterrent to others.
I am concerned that the respondents' Trust Account records still have not been reconciled and audited. I do not believe it is appropriate for the respondents to be allowed to practice in the future until these records have been reconciled and audited. Therefore, I intend to impose a condition the respondents must comply with the requirements to have all previous Trust Account records for the years ending 30 June 2010 to 2013 inclusive to be audited, reconciled and lodged by 30 October 2014. In order for this condition to be enforceable I will grant the applicant liberty to apply to hve the respondents' licences cancelled.
Proceeding Z15/2014 was commenced by Ms Redford to obtain a stay on the suspension of the licences. As the substantive proceedings have now been concluded the stay given by Senior Member Proctor shall be vacated and the proceeding Z15/2014 is dismissed.
I will draft the order accordingly.
Parties
Applicant/Plaintiff:
Director of Consumer Affairs Victoria
Respondent/Defendant:
Redford
Legislation Cited (1)
Consumer Law and Fair Trading Act 2012
Cases Cited (1)
Director of Consumer Affairs Victoria v Redford (Review and Regulation) [2014] VCAT 405 (8 April 2014)