1. (2) An estate agent must not engage in conduct that is unprofessional or detrimental to the reputation or interests of the estate agency industry.

Section 94 makes it an offence to contravene or fail to comply with any provision of the Act or Regulations.

1. The Director's request for inquiry into the conduct of Mr Rounds specified six grounds for taking action. The six allegations relate to the following conduct:
   1. On 4 April 2011, Mr Rounds fraudulently converted for his own use, $53,040, which was part of the sales deposit for a property at 7 Cornfield Grove Box Hill South - in contravention of s 91(1)(a)(i) of the Act.
   2. On 18 November 2011, and for three weeks after that Mr Rounds failed to pass on to a vendor client $46,900 he had received, and held in trust on her behalf, relating to the sale of a property at 3/112 Through Road Camberwell - in contravention of s 91(1)(b)(i) of the Act.
   3. In December 2011, having a deficiency of at least $46,000 in his trust account - in contravention of s 90(1) of the Act.
   4. In December 2011, Mr Rounds fraudulently converted to his own use $46,000 which was received by him on trust on behalf of a vendor of property at 3/35 Clyde Street Box Hill - in contravention of s 91(1)(a)(i) of the Act.
   5. Between April and December 2011, Mr Rounds failed to act fairly and honestly and to the best of his ability, in that he continuously and deliberately engaged in conduct and made representations to his clients that were unprofessional. He engaged in ongoing unauthorised use of clients' monies to service either personal debt or debts of Colin Rounds Real Estate Pty Ltd (the Company) - in contravention of regulation 11 and s 94 of the Act.
   6. Between April and December 2011, Mr Rounds engaged in conduct that was unprofessional and detrimental to the reputation or interests of the real estate industry in that he deliberately misled his clients and misappropriated trust monies, to service either personal debts or debts of the Company - in contravention of regulations 13(2) and 13(4)[1] and s 94 of the Act.
2. This application for an inquiry into the conduct of Mr Rounds himself comprises matter B145/2012.
3. Matter B146/2012 is the Director's application for the holding of an inquiry under s 25 of the Act against the Company. The grounds for that application comprise allegations equivalent to the first four grounds against Mr Rounds himself, as set out in paragraph 7 above.
4. Both applications seek a determination as to whether the licensee in each case has contravened or failed to comply with the Act and with the Regulations. The application against Mr Rounds personally also seeks that the inquiry determine the issue as to whether or not he is of good character or is otherwise a fit and proper person to hold a licence.

1. Mr Rounds accepted the breaches of the Act and Regulations alleged against him and the Company, and the matter proceeded with the parties placing before me a Statement of Facts Agreed, as follows:
   1. Mr Colin Frederick Rounds ('Rounds') was issued estate agents licence number 71597 by the Business Licensing Authority ('the Authority') on 25 March 2010. On the same day, the Authority issued Colin Rounds Real Estate Pty Ltd ('CRE') estate agents licence number 71601.
   2. At all the relevant times, Rounds was the sole director, company secretary and Officer in Effective Control ('OIEC') of CRE.
   3. CRE and Rounds operated the estate agents business under the trading name 'Rounds Real Estate' from business premises located at 1421 Toorak Road, Camberwell.
   4. 'Rounds Real Estate' operated and continued to operate a property management and sales business.
   5. CRE operated at the relevant time two Trust Accounts at the ANZ Bank namely:

(a) Statutory Trust Account number 1841-77555, in the name of Colin Rounds Real Estate P/L 'Rental-Statutory Trust Account'; and

(b) Statutory Trust Account number 9038-28634, in the name of 'Colin Rounds Real Estate Pty Ltd, T/As Rounds Real Estate'.

1. In November 2011, Consumer Affairs Victoria ('CAV') received correspondence from Rounds on behalf of CRE advising of a deficiency of $53,040.00 in the Sales Trust Account. Rounds stated in correspondence that this money had been used 'to return money I owed to various people'. Rounds advised that 'the $53,000 has been paid back'.
2. On or about 12 September 2011, Ms Lauren Shaw engaged the services of CRE, through its OICE, Rounds, and signed an Exclusive Sales Authority.
3. On 20 October 2011, Ms Shaw accepted an offer of $580,000 for her property and signed the contract of sale for said property, prepared by Rounds on behalf of CRE. The contract stipulated that a deposit of $58,500 be paid by the purchaser, of which $500 was paid on 17 October 2011.
4. The Shaw property settled on 18 November 2011, at which time Rounds and CRE was instructed to pay the deposit, less commission and advertising costs, to Ms Shaw immediately in her capacity as the vendor. Despite these instructions and subsequent requests from Ms Shaw, CRE and Rounds failed to deliver the outstanding deposit amount to Ms Shaw, until a complaint was lodged with Consumer Affairs Victoria.
5. On 30 November 2011, a property listed for sale with CRE, namely, 3/35 Clyde Street Box Hill, sold for a purchase price of $460,000, with a deposit of $46,000 paid in to the 'Sales Trust Account' on or about 1 December 1011.
6. On 6 and 9 December 2011, respectively, Ms Shaw received the payment of monies held by CRE. The licensee finally delivered the remaining sales deposit, in the amount of $46,900.
7. On 29 December 2011, Consumer Affairs Victoria ('CAV') Inspectors attended the business premises of CRE, after CAV received a complaint from Ms Shaw together with highly qualified auditors' report.
8. During this inspection, Inspectors Watson, Dan and Barlow attended the premises to complete an inspection of the trust accounts and associated records maintained by CRE and Rounds. Watson observed after reviewing the available banking records a deficiency of $53,040 in the months of August to October 2011 (inclusive).
9. Watson observed during this inspection that at the end of November 2011 the trust account had a deficiency of $46,900.
10. The Respondent repaid to the trust account $36,800 by 12 January 2012 and the balance by 16 May 2012.
11. A Trust Account Audit has since been conducted and the Independent Assurance Report for the year ending June 2012 maintains that for the 'Period of the Audit' the licensee complied with the requirements of section 63 and 64 of the Estate Agents Act 1980 and relevant Regulations.
12. The subject matter giving rise to the proceedings before the Tribunal is the only matter, relating to the Respondents, under investigation by the Applicant.
13. Mr Rounds also filed an affidavit and gave oral evidence as to the detail of the conduct, and the circumstances in which it occurred, and was cross-examined by Ms Bannon, for the Director.
14. Mr Rounds said that prior to becoming an estate agent he had a number of jobs, none of which he found satisfying. In May 2007 his father died. Thereafter, he became the primary carer for his mother up to the time of her death in 2009. He was greatly affected by the loss of both his parents. He studied real estate part-time in the evenings whilst working during the day. He qualified, and worked as a sales consultant at Barry Plant Real Estate in Glen Waverley. He enjoyed real estate and decided to start his own business. He commenced operating his new business in about March 2010 in Warragul Road Ashwood. He started the business from scratch. He had few clients to start with. He was living above the Warrigal Road premises. In March 2011, he moved to new premises at 1421 Toorak Road Camberwell. He incurred expenses in renovating those new premises.
15. At the same time, he was required to pay the balance of the purchase price of an apartment in Tooronga Road Glen Iris which he had bought off the plan from Stockland. He had paid a $50,000 deposit in about 2008. He said that the finance he had previously arranged for payment of the balance (approximately $385,000) fell through, due to the fact that he was no longer an employee, but rather, was now self-employed. Despite all his efforts to raise the funds, he could not do so and he lost the $50,000 deposit. He felt he had been treated unfairly in a number of ways in relation to this transaction.
16. Mr Rounds said he incurred the usual expenses connected with the commencement of a new business. It became apparent to him that the $23,000 he had was insufficient capital for the business. He was stressed and under pressure, as he was refused loans by banks, family and friends. In early 2011, he borrowed $20,000 from a client, but he realised he actually needed capital of approximately $100,000.
17. It was in this context that he made the decision to take trust monies to pay his outstanding debts. Mr Rounds admitted that he commenced to take monies from his trust account on 4 April 2011. He stated that he intended repaying the money quickly. But he then he said there was a downturn in the property market, leading to less money being received in commissions.
18. Mr Rounds wrote a letter dated 4 November 2011 to Anne Cousins, General Manager, Trader Conduct Branch, Consumer Affairs Victoria (CAV) advising that he had used trust account funds to return money he owed to various people. He said he sent this letter because he was feeling genuinely worried and remorseful about his actions and wanted to state his honest intention to repay the trust account.
19. Mr Rounds said he was helpful and co-operative at all times with the CAV inspectors. He said that on 29 December 2011 he wrote a letter to CAV noting that there was a deficiency in the business trust account in the sum of $37,700 and listed a number of dates that he expected to receive commissions which would rectify the deficiency.
20. On 11 January 2012, he sent a letter to Dr Claire Noone, Director of CAV, advising that he had misused trust account funds and the circumstances which led to the conduct. He said the purpose of this letter was to state his honest intentions to rectify the trust account deficiency and convey his genuine remorse.

1. It is clear from Mr Rounds' statements above and acceptance of the allegations put in the Grounds relied upon by the Director, that Mr Rounds has breached his duty under the Act and Regulations in the ways alleged.
2. The main issue for determination is what sanctions should be applied under s 28A, and the related question of whether Mr Rounds is now a fit and proper person to be a real estate agent. The paramount consideration is the protection of the public and of the reputation of the industry in the eyes of the community.

1. On behalf of the Director it was contended that Mr Rounds' conduct showed that he was not a fit and proper person to hold a licence as a real estate agent (and that because he controlled the Company, it was not fit and proper either).
2. Further, the seriousness of his conduct warranted the cancellation of his licence for at least 12 months, or failing that, suspension for a significant period up to one year. The Director submitted that Mr Rounds should also be reprimanded. Her written submissions also said that a fine of up to $5,000 under s 28A(2) is also appropriate.
3. Mr Ashley, for Mr Rounds, submitted that there were a number of mitigating factors, including the loss of a $50,000 deposit on his proposed personal property purchase at Tooronga, his depressive illness, his conduct in rectifying the deficiency in his sales trust account, his undertaking of additional training, and complying with all statutory requirements in the conduct of his business since the time of the impugned conduct in 2011/12. He also pointed to the fact that he has suffered adverse effects through delay, the fact that he has two full-time employees, that he had made positive contributions to the community and demonstrated remorse.
4. Also, with reference to Hannebery v Legal Ombudsman[2] the emphasis should be on public protection rather than punishment and, while deterrence was acknowledged as a legitimate consideration for the Tribunal, the consequences of Mr Rounds' misconduct, including these proceedings, might be regarded as sufficient general deterrence in themselves.[3]
5. Mr Ashley submitted that Mr Rounds should be reprimanded, and perhaps fined. But if his licence to practice was to be interfered with, this should be a maximum of a three month suspension. At the conclusion of his oral submissions, Mr Ashley also suggested that the Tribunal had power to impose a 'suspended sentence' akin to that formerly available under the Sentencing Act 1991 in relation to criminal findings, and that any suspension or cancellation should itself be suspended.
6. I now turn to a consideration of the issues relevant to determination.

1. Mr Rounds' letter of 4 November 2011 to CAV contained the statement that the deficiency of $53,000 identified by the auditor had been paid back. Clearly, this was untrue. Mr Rounds said in his evidence that this statement was a 'mistake'.
2. At the meeting at CAV on 9 January 2011, Mr Rounds was given notification of CAV's proposal to suspend his licence. He responded by letter dated 11 January 2012 which stated that he had 'successfully brought the trust account back in order'. In actual fact, as Mr Rounds admitted in the hearing, there remained a deficiency in the trust account, which was not cleared until the payment of $13,000, or an amount in that vicinity, into it on 12 May 2012.

1. Questions were put to Mr Rounds by Ms Bannon to suggest that he only notified CAV of the deficiency in his trust account once he knew that his auditor's notification of the deficiency either had been received, or would shortly be received by CAV. The report by the auditor, Mr Trevor Golding, was dated 11 October 2011. This audit identified a deficiency of $53,040.
2. On page 1 of the audit report was a statement that under the Act, as soon as it was completed, the auditor was required to deliver it to the licensed real estate agent. And within 10 business days the licensed real estate agent was to send a copy of it to CAV. Mr Golding notified CAV of the deficiency by letter dated 3 November 2011. Whilst initially, Mr Rounds maintained in his evidence that his report to CAV of 4 November 2011 was done on his own initiative, later, he appeared to accept that it was in fact prompted by him becoming aware that Mr Golding's audit report would be revealed to CAV. In response to questioning from the Tribunal, Mr Rounds said that Mr Golding had attended his business about three weeks prior to 11 October to review his accounts. Mr Golding and Mr Rounds had discussed the deficiency at that time. (Mr Golding's affidavit stated that Mr Rounds was 'very upfront and honest about explaining how the deficiency occurred'.)
3. The overall effect of Mr Rounds' evidence on the question of whether the 4 November 2011 letter was prompted or not was ambiguous: he at times appeared to accept that it was prompted. Yet he also maintained that it was sent on his own initiative.
4. I find, contrary to the contentions made on behalf of Mr Rounds, and his own evidence (in part) that the notification to CAV dated 4 November 2011 was prompted by his awareness that a non-compliant audit was to be provided to CAV, rather than purely on his own initiative.
5. This is reinforced by the delay in receipt by CAV of the 4 November 2011 letter of notification from Mr Rounds. CAV's receipt date stamp showed this as having been received on 22 November 2011. Mr Rounds suggested that he had in fact posted it on or shortly after 4 November. There must have been a problem with the post.
6. In this context, in giving his evidence about whether the sending of his letter of 4 November 2011 to CAV was a result of prompting or not, Mr Rounds referred to his depression. He said it has huge ramifications on your thinking process.

1. Mr Rounds said he had suffered depression going back about 15 years. But he only commenced treatment in 2007. He said that from 2009 to late 2011, his depression was exacerbated by the side effects of an anti-hair loss drug he was taking, Proscar.[4]
2. Mr Rounds said that his decision making during 2010 was adversely affected by his depression.
3. Dr Les Jenshel was Mr Rounds' GP during the relevant period. He prepared a report dated 23 August 2013 at the request of Mr Rounds' solicitors. He then met with Mr Rounds on 3 September 2013 for the purpose of preparing a second report, which was prepared on 11 September 2013.
4. Dr Jenshel's report of 23 August 2013 confirmed that he treated Mr Rounds for depression. He said

My own impression of him was that he had multiple diagnoses with mixed features of anxiety and major depression, and appeared to have a dependent personality.

Dr Jenshel prescribed anti-depressant medication. He confirmed that his experience with the hair loss medication is that it can lower the mood of patients, and it is possible this worsened the severity or complicated the management of Mr Rounds' depression. Dr Jenshel's report went on to describe the numerous personal financial and work related difficulties which Mr Rounds had experienced. Dr Jenshel then commented on the circumstances of Mr Rounds' taking money from his trust account in this context. The report stated

I liken his actions to someone battling hunger in a war zone where survival had become the only option. When that person steals a loaf of bread to survive, it is a sign of the desperate situation they are in, and may not be proof of a criminal disposition.

He said that from his consultations with Mr Rounds, he never had the impression he was a dishonest person. He said Mr Rounds was very remorseful.

1. Dr Jenshel's further report of 11 September 2013 stated that Mr Rounds' mental health concerns seemed to be stable and adequately controlled with medication despite the challenge he is confronting.
2. This is consistent with a letter from his current GP Dr Wendy Pakes dated 11 July 2013 which stated that Mr Rounds' depression was continuing to be treated, and that he has been making significant progress.
3. Submissions were made on behalf of Mr Rounds in reference to the statement in the decision in Legal Services Commissioner v Moore[5] that the practitioner's gambling and drinking problem constituted a 'mental impairment'. It was said Mr Rounds' conduct during 2011 should be seen in that light. It was said his mental health is now stable, and so if presented with the same set of circumstances again, he would not react in the same way.
4. Mr Rounds' depression is a mitigating factor of some significance which I take into account. Mental illness can reduce culpability for offending and/or reduce the need for specific deterrence and/or make a respondent an inappropriate vehicle for general deterrence.[6] However, I have concluded that Mr Rounds' case put too much reliance on this factor. The existence of a depressive illness does not necessarily mean that general deterrence has no role at all to play. It depends on the circumstances. Dr Jenshel did not explicitly or exclusively attribute Mr Rounds' conduct to his depression. In reference to Mr Rounds taking money from the trust fund, he said that when he 'ran out of options and ran out of money, he eventually arrived at his last resort (which for a less stressed and desperate person would not have been an option).' To the extent this does constitute some degree of causal link, the expert medical evidence did not go as far as Mr Rounds did in ascribing causal effect for his conduct, over the period for which it continued, to his mental illness. Dr Jenshel said he was not aware of how long Mr Rounds held on to the trust account funds he had taken.
5. Also, Mr Rounds' suggestion in cross examination that his depression was in some way connected with the question of whether his notification to CAV dated 4 November 2011 was on his own initiative or not (see paragraph [35] above) was unconvincing.

1. Mr Rounds gave evidence in relation to his understanding now of the significance of his conduct in 2011-12. He said he now understood his conduct was wrong - he would not engage in that conduct today. He said he felt remorse 'one hundred percent'. He said his judgment at that time was clouded by his depression.
2. On the other hand, Mr Rounds said during his oral evidence that closing down his business in April 2011 was 'not an option': his trading and business creditors would not have been paid back, whereas as things have turned out, they have been. Mr Rounds needs to understand that trust accounts are sacrosanct: using funds held by clients in trust is 'not an option'.
3. I was also concerned that Mr Rounds stated in his evidence that he really didn't know why he was called in to CAV in early January 2012. This suggests a lack of recognition of the seriousness of the situation, where there was a deficiency in his trust account, and CAV were considering whether the public interest required that his licence be suspended.

1. A character reference was provided by Mr David Taylor dated 22 August 2013. Mr Taylor was Mr Rounds' employer at Barry Plant Real Estate in Glen Waverley. It stated Mr Taylor's view that Mr Rounds' misuse of trust money was surprising as he had always known him to be a man of the highest integrity, morality and ethics.
2. Ms Maryanne Grimshaw in her reference said she had known Mr Rounds personally and through business for 15 years. She said he was kind, trustworthy, hardworking and deeply regretful for his inappropriate use of trust account monies. She believed this conduct would never occur again.
3. Dr Jenshel's reports also contained material in the nature of character evidence. They described in detail the severe privations Mr Rounds had suffered in practical terms, and expressed admiration for his determination in the face of these, especially in view of his mental health difficulties.
4. Similarly, the affidavit of Mr Rounds' accountant and auditor, Mr Trevor Golding, stated that since late 2011, he has seen Mr Rounds develop both personally and professionally, which is reflected in the growth and profitability of his business. He said Mr Rounds now implements sound business and accounting practices including hiring a bookkeeper. Mr Golding said he was confident that with his current experience, knowledge and the financial viability of his business, he will not resort to the actions which caused the trust deficiency in 2011. He also stated he has come to know Mr Rounds personally and believes him to be of good character and that the actions leading to the trust account deficiencies in 2011 were a 'genuine mistake and the result of the culmination of his unfortunate life circumstances'.

1. It was submitted that the delay before this matter came to the Tribunal constitutes 'a powerful mitigating factor'.[7] First, it was said in the period since the incidents occurred Mr Rounds had taken other steps to rectify loss caused by his conduct and to rehabilitate himself. The submission referred to:
   • The retainer of Trevor Golding and Associates as auditors since the commencement of the business.
   • The completion on 22 May 2013 by Mr Rounds of a two day course in trust accounting with the Australian College of Professionals, which was the body through which Mr Rounds had obtained his original qualification. The course included units such as 'Establish and manage agency trust accounts', 'Manage agency and consumer risk' and 'Identify legal and ethical requirements of property sales to complete agency work'.
   • Positive action taken by Mr Rounds to recover from his depressive illness.
2. Secondly, it was said that during the period pending the conduct of this inquiry by VCAT, Mr Rounds had suffered considerable stress caused by the anticipation of the negative consequences of an adverse decision. He has had this proceeding 'hanging over his head' for 15 months (since the VCAT proceeding was commenced) and 23 months (since his conduct was reported to CAV).
3. Also, communication between CAV inspectors and his clients had had a significant adverse affect on the business. For example, a major client had ceased to refer work to him.
4. These matters are mitigating factors here. The steps taken to manage Mr Rounds' depressive illness are beneficial and significant. But again, these factors are not as significant as was contended by Mr Rounds. The retaining of an auditor is no more than the legislation requires. The completion of the two day course is of some benefit, although the Director suggested it might have been better to engage a compliance assistance professional and to seek advice from the Real Estate Institute of Victoria.

1. It was further put that Mr Rounds' business was now operating profitably after having lost money in its first two years. In the financial year ending 2013, a net profit of $53,968 had been made. The business employs two persons full time, who would loose their jobs if the respondents' licenses were cancelled. Cancellation would cause financial ruin for Mr Rounds. He has no other professional qualifications or particular ability to engage in any other line of work.
2. Mr Rounds' accountant and auditor Mr Golding, provided an affidavit stating that he had done Independent Assurance Reports for the years ending 30 June 2011, 2012 and 2013. There was a deficiency of $53,040 in 2011. There were no further deficiencies in the two later years.

1. I also take into account other mitigating factors which run in Mr Rounds' favour. These are:
   • Mr Rounds' acceptance of the breaches of the Act and Regulations alleged against him and the Company, thus saving the time and expense of these matters having to be proved against him.
   • The fact that nothing has been raised against him since 2011/12.
   • The loss of community benefits provided by the business in the form of donations he has been making to various sporting clubs, churches and charities (although the magnitude of these was not quantified by Mr Rounds).

1. What Mr Rounds has done is, in effect, to use trust monies for 13 months as a line of credit to support the development of his new real estate business. He said he took trust monies as a last resort. But the fact is that he took a risk financially, and when it did not come off for him, he utilised the trust monies.
2. It is important that real estate agents, and the public generally, understand that it is completely unacceptable for a real estate agent who has experienced financial, personal and professional hardships, even if they are not of his or her own making, to utilise trust funds to tide the business over, even for a short period. Here, Mr Rounds' trust account was deficient for a long period- 13 months. Also, as he acknowledged, he had gone into his new business with too little capital. In other words, he had been too eager to commence his own commercial operation.
3. One client was directly affected by Mr Rounds' conduct. That was Ms Shaw, who was deprived of payment of $46,900 due to her for approximately three weeks. This caused anxiety and inconvenience for her. Also, the funds of numerous clients were placed at risk during the period of the deficiency. The scheme of the Act is that these monies should be absolutely safe.
4. I am not satisfied that Mr Rounds fully understands that trust account monies are sacrosanct. On the one hand, Mr Rounds submitted that given his medical condition is now under control, he would not engage in the same conduct again. On the other hand, he said that he had 'no option' but to act as he did. The effect of his evidence was that closing down his business was not something he would countenance. I was left unconvinced that if the same circumstances arose again Mr Rounds would not respond in the same way. An underlying theme of Mr Rounds' evidence was the sense that given all the hardships he had been through, he was justified in utilising the monies held by him on behalf of clients in his sales trust account to tide him over, while he built up his business, and overcame the setbacks which fate had so unfairly meted out to him.
5. It is certainly apparent that Mr Rounds has suffered a string of very unfortunate setbacks. However, they were partly caused by his own conduct. He over-stretched himself financially. Dr Jenshel's wartime survival analogy over-states the position. Mr Rounds' depression is a relevant factor, although not of such significance as Mr Rounds contended.
6. Additionally, Mr Rounds was clearly not fully frank with CAV during the course of the investigation. His statements that the deficiencies in the trust account had been repaid, made in his letters of 4 November 2011, and 11 January 2012, were untrue. I did not accept his evidence about the cause and timing of his notification of the deficiency to CAV by his letter dated 4 November 2011. In relation to the letter of 29 December 2011 suggesting that the deficiency in the trust account would be rectified by 2 February 2012, it is accepted that it was not in fact rectified until 12 May 2012.
7. It was submitted that Mr Rounds is of good character and now a fit and proper person to hold an estate agent's licence. It was said that in accordance with the words of Moffit P in Jones v Law Society of New South Wales[8] 'past approved unfitness has been changed to fitness' in the light of Mr Rounds' recent good conduct, and the other matters. He had learned from his mistakes.
8. Mr Rounds' conduct was that of a person who was not fit and proper to practise. The same conclusion applies to the Company.
9. Further, following the hearing, I have concluded this remains the case as at the date of the hearing. Mr Rounds' good behaviour since the commencement of the inquiry is not sufficient to render him (or the Company) a fit and proper person now, in light of the seriousness of his breach of the fundamental requirement not to take trust monies, the length of time for which the deficiency existed and the other concerns about his conduct and his evidence described above (including that he did not demonstrate a full understanding of the seriousness of his actions).
10. That being so, and taking all the above factors into account, I have concluded that cancellation, rather than suspension of the licences is appropriate. I determine that Mr Rounds and the Company not be eligible to hold an estate agents licence for a period of 12 months. This will clearly have significant ramifications for Mr Rounds, as well as his two employees. In the light of my findings, however, no lesser determination will be sufficient to protect the public and the integrity of the industry. In recognition of the disruption this order will have on Mr Rounds' existing clients, who will be will lose their estate agent mid-transaction, whilst sales campaigns are underway, I will order that this order not come into effect for two weeks from the date of this decision.
11. Mr Rounds should be reprimanded. This conveys a message of denunciation of his conduct.
12. In light of the mitigating matters referred to above, it is appropriate that Mr Rounds be given the opportunity to apply to practise as an agent's representative prior to the expiry of the prohibition on him again applying to practise as the principal of a business.
13. A fine is not appropriate in the circumstances of this case.
14. For the reasons articulated above, it is necessary for an actual cancellation to be imposed in this case, rather than a 'suspended' cancellation, which Mr Ashley suggested at the end of his submissions the Tribunal had power to impose. The Tribunal is not explicitly given the power to impose suspended sentences which was formerly given to the courts by the Sentencing Act 1991. On the other hand, the conditions which may be imposed under s 28A(1)(e) are broad. The Tribunal is empowered to 'impose any condition or limitation on the licence held by the person'.
15. The matter was not argued in any detail, and in any event, I find that such a disposition would not be appropriate here. There is no more serious breach of an estate agent's professional duties than taking monies held on behalf of clients on trust, and using them for his or her own purposes.

[1] The reference to regulation 13(4) appears to be an error and so I have taken no account of it in dealing with this application.

[2] [1998] VSCA 142 at [22].

[3] Citing Legal Services Commission v Turner [2012] VCAT 373 at [14].

[4] In his affidavit of 20 September 2003 Mr Rounds said that he stopped taking Proscar in late 2012, however the other evidence, suggests he went off Proscar in late 2011. Nothing turns on this for the purposes of this decision, however.

[6] Quinn v Law Institute of Victoria [2007] VSCA 122 at [36].

[7] Quoting Legal Services Commissioner v Sterling (Legal Practice) [2012] VCAT 347

[8] [1982] 2 NSWLR 1, 9-10.