Professions - Settlement agents - Disciplinary proceedings - Withdrawal of funds from trust account - Payments to interest bearing account pending remittance to Commissioner for Strata Revenue - Whether permitted by Settlement Agents Act 1981

Settlement Agents Act 1981, s 49

Mark Stephen Holdings Pty Ltd v Commissioner of State Taxation WA) unreported WA Supreme Court, library number 6549

REASONS FOR DECISION

JUDGE CHANEY, MR R LEDGER (SENIOR SESSIONAL MEMBER), MS C WINSOR (SESSIONAL MEMBER):

1 The Settlement Agents Supervisory Board alleges that proper cause for disciplinary action exists against the respondent by reason of alleged breaches of the Settlement Agents Act 1981 ("the Act").

2 Four allegations are made. The first relates to the period 3 October 1997 to 31 July 2001, and is an allegation that the respondent withdrew moneys totalling $5,796,729.06 from its trust account other than in accordance, with or as authorised by, s 49(4) of the Act. The second allegation is an alternative to the first. It is that the respondent paid moneys received by it for or on behalf of any other person in respect of settlements totalling $5,796,729.06 into an account other that an trust account designated as such in accordance with s 49(1) of the Act. The third and fourth allegations relate to the period 3 August 2001 to 31 July 2003. The third allegation is that the respondent withdrew moneys totalling $6,011,768.65 from its trust account other than in accordance with, or as authorised by, s 49(4) of the Act. The fourth allegation is an alternative to the third allegation, and is that in that period, the respondent paid moneys received by it for or on behalf of any other person in respect of settlements totalling $6,011,768.65 into an account other than a trust account designated as such in accordance with s 49(1) of the Act.

3 At the hearing, there was no dispute as to the facts which had been agreed and helpfully set out in a statement of agreed facts.

4 Since April 1988 the respondent has been the holder of a real estate settlement agents licence. It trades under the name Gibson Raison Settlements.

5 At all the relevant times, the respondent maintained a trust account within the meaning of s 49(1) of the Act ("the Trust Account") which it held with BankWest.

6 On 13 August 1997, the respondent was granted permission by the State Revenue Department to stamp certain documents and to account for the stamp duty payable on those documents by a monthly return. The permission was granted under s 112V of the Stamp Act 1921 on conditions set out in a letter dated 13 August 1997 and also in two enclosures to that letter entitled "Information Notice" and "Guidelines for Conveyance Return Stamping". The letter of 13 August 1997 advises that the returns would be forwarded to the respondent 10 days prior to the close of the month to which they relate, and that they must be returned along with any payment within 15 days of the close of the month. The Guidelines for Conveyance Return Stamping repeated the requirement for the lodgement of the return and payment within 15 days of the end of the month and specified that "the cheque in payment of the stamp duty, must be drawn on the TRUST ACCOUNT of the approved person or by a recognised Bank or Building Society on an account of the Bank or Building Society" (original emphasis).

7 During the period 3 October 1997 to 31 July 2003, in the course of its business as a real estate settlement agent, the respondent received from clients liable to pay duty on conveyances the moneys necessary to meet that liability. Upon receipt of those moneys from clients, the respondent deposited them into the Trust Account.

8 The conveyances the subject to the stamp duty liability typically comprised a Contract for the Sale of Land or Strata Title by Offer and Acceptance in the form approved by the Real Estate Institute of WA and incorporated the "Joint Form of General Conditions for the Sale of Land" of the Law Society of Western Australia (Inc) and the Real Estate Institute of Western Australia (Inc) ("the General Conditions"), and a transfer of land in one of the forms prescribed under the Transfer of Land Act 1893. The respondent would calculate the amount of stamp duty payable by the clients on the conveyances and when the moneys had been received from the clients, and banked into the Trust Account, the conveyances would be endorsed with duty in accordance with the permission given to the respondent.

9 On or about the dates upon which the conveyances were endorsed as having stamp duty paid, the money which had been received from the clients in respect of that duty was then transferred from the Trust Account to, in the period 3 October 1997 to 31 July 2001, a Business Plus Account entitled "State Revenue - GRS Trust Account" maintained by the respondent with BankWest ("the Business Plus Account"). The Business Plus Account was not a trust account designated as such within s 49(1) of the Act. Moneys thus transferred remain within the Business Plus Account until such time as they were remitted to the Commissioner of State Revenue in accordance with the stipulation in the letter of 13 August 1997 and the Guidelines for Conveyance Return Stamping.

10 During the period 3 October 1997 to 31 July 2001, the total amount transferred from the Trust Account to the Business Plus Account amounted to $5,796,729.06.

11 The Business Plus Account earned interest on the credit balance in that account. In the period 3 October 1997 to 31 July 2001, interest, after deduction of bank charges, in the total amount of $15,787.01 was credited to the Business Plus Account. That interest was then redirected monthly to a BankWest business cheque account, the parties to which were Peter Anthony Gibson, Maxine Merl Gibson, Mervyn Cyril Raison and Glenda Joyce Raison. The signatories to that account were Peter Anthony Gibson and Mervyn Cyril Raison. A historical company extract of the respondent shows that Mr Raison and Mr Gibson are directors and the only shareholders of the respondent.

12 In summary, the practice adopted by the respondent was, initially to pay into trust funds received to meet purchasers' stamp duty liability, and upon the relevant documents being stamped, to transfer those funds from the Trust Account into an interest bearing account pending payment to the Commissioner of State Revenue on the 15th day of the following month. The practical effect of the arrangement was that the respondent would receive the interest earned on the funds in the period between applying the stamp to the document and the 15th day of the following month. Had the money remained in the Trust Account, interest earned on it would have been payable to the Board Interest Account established under s 103(1) of the Act as required by s 49B. The funds would have remained subject to the audit requirements of the Act (s 51 - 72) and susceptible to the regulation and supervision powers in relation to trust accounts (s 73 - 78) and the Board Registrar's powers under s 81A.

13 From the period of 3 August 2001 to 31 July 2003, the respondent continued the same practice except that the account to which the funds were transferred was no longer the Business Plus Account with BankWest, but rather a Cash Management Account with State West Credit Society ("the Cash Management Account"). The Cash Management Account was not a trust account within s 49(1) of the Act. During the period 3 August 2001 to 31 July 2003, interest totalling $16,175.22 was credited to the Cash Management Account. Of that, $1,202.45 was transferred in the October 2001 interest of $1,202.45 was transferred in October 2001 (in lieu of "$1,202.45 was transferred in September 2001") to a Premium Saver Account with State West Credit Society, the signatories to which were P A Gibson and M C Raison. From 1 December 2001 to 31 July 2003, seven interest payments totalling $14,972.77 were made by cheque from the Cash Management Account to Gibson Raison Settlements.

14 The essential issue in these proceedings is whether, on the proper construction of s 49 of the Act, the respondent was entitled to transfer the stamp duty funds from its Trust Account pending payment to the Commissioner, or whether the respondent was required to hold the funds in its Trust Account until the funds were remitted to the Commissioner. The Board contends for the latter proposition and asserts that the withdrawal of the funds from the Trust Account was contrary to s 49(4) of the Act. Alternatively, the Board contends that the payment into the Business Plus Account and the Cash Management Account respectively is contrary to s 49(1) of the Act.

15 The resolution of that issue turns upon the proper construction of s 49.

Section 49 of the Act

16 Section 49 reads as follows:

(1) Every licensee who holds a current triennial certificate shall maintain one or more trust accounts, designated or evidenced as such in the prescribed manner and maintained exclusively for the purposes of this Act, with an authorised financial institution and shall, as soon as practicable, pay to the credit of that account or those accounts all moneys received by him for or on behalf of any other person in respect of settlements to be arranged or effected, or arranged or effected, by the settlement agent.

(2) Moneys so paid into any such trust account shall not be available for the payment of the debt of any other creditor of the settlement agent, or be liable to be attached or taken in execution under the order or process of any court at the instance of any such creditors.

(3) A settlement agent may pay out of a trust account such of the proper charges relating to settlements as are payable by the persons on whose behalf the moneys are received but may do so only when those charges lawfully fall due.

(4) Settlement moneys received by a settlement agent in the course of arranging or effecting a settlement shall not be withdrawn from a trust account except for the purpose of completing the settlement, or in accordance with the contract entered into between the parties to the transaction, or as otherwise authorized by this Act, or by the prior written consent of all parties to the transaction involved.

(5) A settlement agent shall pay moneys withdrawn from a trust account to the person or persons lawfully entitled or authorized to receive them.

(a) keep full and accurate accounts of all money received or held by him on account of any other person and of all payments made by him of that money;

(b) before the end of the next business day after the day on which the money is received or paid, enter in the accounts particulars of the amount so received or paid and the person from whom it was so received or to whom it was so paid;

(c) keep the accounts in such manner that they can be conveniently and properly audited; and

(d) correctly balance the accounts at the end of each month and certify in records that this has been done."

The alleged breach of section 49(4)

17 Section 49(4) prohibits the withdrawal of "settlement moneys" from a trust account except for four designated purposes. The Board contends that the moneys received for the purpose of meeting stamp duty liability are "settlement moneys", and that the withdrawal of the funds for the purpose of placement in an interest bearing account pending remittance to the Commissioner is not within any of the four designated purposes. The respondent contends that the funds received to pay stamp duty are not "settlement moneys" within the meaning of that expression in subsection 49(4), and accordingly that subsection has no application to the payment the subject of the allegations. Alternatively, the respondent contends that if the funds are "settlement moneys" then their payment comes within each of the four permitted circumstances for withdrawal.

18 Section 49 uses different expressions to refer to the funds which it regulates. In subsection 1, there is reference to "all moneys received ... in respect of settlements". Subsection 3 refers to "proper charges relating to settlements", and subsection 4 uses the expression "settlement moneys". The respondent submits, and we agree, that the expression in subsection 1 includes both the balance of the purchase price and proper charges relating to settlements, including relevantly, money paid for the purpose of meeting stamp duty liability on the transactions. The respondent then contends that the expressions "proper charges relating to settlements" and "settlement moneys" are mutually exclusive.

19 "Settlement moneys" is not a defined term. "Settlement" is defined as "the completion of a real-estate transaction ... by payment of the balance of purchase price in respect of such real-estate transaction". The respondent argues that the narrowness of the definition of "settlement" means that "settlement moneys" should be equally confined to moneys being paid to complete the transaction, being only the balance of the purchase price, and does not include stamp duty or other charges relating to settlement. Thus, it is argued, the payment out of the Trust Account in this case of money relating to stamp duty is not regulated by subsection 49(4), and accordingly the complaints of breaches of that subsection cannot be made out.

20 The expression "settlement moneys" should not be so confined. "Settlement moneys" should be interpreted as a reference to the moneys referred to in subsection 1. The breadth of the circumstances in respect of which settlement moneys can be withdrawn from a trust account suggests that the expression refers to more than simply the balance of the purchase price. For instance payments "in accordance with the contract entered into between the parties to the transaction" may conceivably encompass payments of other than just the balance of the purchase price. Subsection 4 is the operative prohibition against the withdrawal of money from the trust account other than for specific purposes. Subsection 3 is a permissive provision designed to regulate the payment of charges relating to settlement and specifying the time at which those payments can be made. The payment of proper charges relating to settlements is a payment from the trust account "otherwise authorised by this Act" and thus a permissible withdrawal under subsection 4, provided the payment is made out when the charges lawfully fall due. It is not the case, as the respondent argues, that subsection 3 would not be necessary if "settlement moneys" included charges relating to settlements. In the absence of subsection 3, there would be no prescription as to when proper charges relating to settlements could be paid. In this case, the money received from purchasers for the purposes of payment of stamp duty is "settlement moneys" within the meaning of that expression in subsection 49(4).

21 That being the case, the question arises as to whether the payments made to the Business Plus Account and the Cash Management Account in this case are payments within the exceptions specified in subsection 4. The respondent contends that the withdrawals can be brought within any or all of the four exceptions.

22 It is, as the respondent argues, an essential precondition to completion of settlement that the documents are stamped. That requirement arises from the provisions of the conditions of contract which are typically incorporated in the transactions with which the respondent is concerned. It is not correct to say, however, that the withdrawal of funds from the trust account for payment into an interest bearing account is a withdrawal "for the purpose of completing the settlement". The settlement occurs quite independently of the withdrawal. The withdrawal is for the "purpose" of placement into an account other than the Trust Account. The first exception does not apply.

23 The respondent argues that the withdrawal is "in accordance with the contract entered into between the parties to the transaction" because the contract for sale, incorporating the General Conditions, requires stamping of the contract and transfer prior to settlement. Neither the offer and acceptance nor the General Conditions, however, require, or even deal with, the withdrawal of money from a trust account into an interest bearing account pending remittance to the Commissioner. Just as the withdrawal from the Trust Account is independent of the completion of the settlement, so it is independent of the contract between the parties.

24 The respondent also contends that the withdrawals from the Trust Account were "otherwise authorised by this Act" because they were payments made under s 49(3) of proper charges relating to settlements, namely stamp duty. Whether, as the respondent contended, the stamp duty charges lawfully fall due upon execution of the agreement (see Mark Stephen Holdings Pty Ltd v Commissioner of State Taxation WA) unreported WA Supreme Court, library number 6549 per pigeon JH5 and from 1 July 2003, Stamp Act s 17A), or the latest upon the fixing of the stamp on the dutiable document, it is clear that the stamp duty was lawfully due to be paid by the party liable to pay it prior to the withdrawal of the funds from the Trust Account by the respondent. In our view, however, withdrawals with which we are concerned cannot be said to be payments of the "proper charges relating to settlements". What is contemplated by subsection 3 is payment of charges to the person or body to whom they are payable. Payments contemplated must be payments which, when made, will discharge the liability of "the person on whose behalf the moneys are received".

25 Finally, the respondent contends that because the contract of sale, incorporating the General Conditions, requires stamping of the contract and transfer prior to settlement, the withdrawal of moneys to stamp the contract and transfer is "by prior written consent of all parties to the transaction involved". Thus it is said the fourth exception to the prohibition in subsection 49(4) is said to apply. That argument fails for the same reason as the argument in relation to the first two exceptions. The argument assumes the withdrawal to be a payment of stamp duty. It is not. It is simply a payment to a holding account pending the ultimate payment of stamp duty as the 15th of the following month.

26 It follows that the allegations that the respondent withdrew monies from its Trust Accounts other than in accordance with or as authorised by s 49(4) of the Act are made out. Having reached that conclusion, the allegations numbered 2 and 4 do not fall for determination because they were brought as alternatives to allegations 1 and 3 respectively. The allegations were described by Counsel for the applicant as the "other side of the coin". That was an apt description, and the defence to the allegations in relation to payment into the interest bearing accounts ultimately turns upon the contention that the withdrawals were lawfully paid out from the Trust Account. That is a proposition that we have rejected.

27 It follows that there is proper cause for disciplinary action against the respondent by reason of its withdrawal of funds totalling $5,796,729.06 from its Trust Account other than in accordance with s 49(4) of the Act between 3 October 1997 and 31 July 2001 and its withdrawal of moneys totalling $6,011,768.65 from its Trust Account other than in accordance with or authorised by s 49(4) of the Act between 3 August 2001 and 31 July 2003.

28 I certify that this and the preceding 10 pages comprise the reasons for decision of the State Administrative Tribunal.

_______________________

Judge J Chaney

ACT : SETTLEMENT AGENTS ACT 1981 (WA)

CITATION : SETTLEMENT AGENTS SUPERVISORY BOARD and KOLARAN HOLDINGS PTY LTD [2005] WASAT 109 (S)

Professional ­ Disciplinary proceedings ­ Penalty ­ Settlement agent ­ Breach of trust account requirements ­ Serious offence

Settlement Agents Act 1981 (WA), s 84(1)(c), s 103(1)

State Administrative Tribunal Rules 2004 (WA), Rule 43

Respondent reprimanded, fined $10 000 and ordered to pay costs fixed at $6000

Medical Board v Roberman [2005] WASAT 81(S)

Settlement Agents Supervisory Board v Koloran Holdings Pty Ltd [2005] WASAT 109

1 On 24 May 2005, the Tribunal handed down its reasons for the finding that there existed a proper cause for disciplinary action against the respondent (see Settlement Agents Supervisory Board v Koloran Holdings Pty Ltd [2005] WASAT 109). The parties were subsequently directed to, and did, make submissions in writing as to the appropriate penalty.

2 The Board submitted that the present case is a serious one that requires a substantial penalty. It submitted that a period of suspension and disqualification under s 84(1)(c) of the Settlement Agents Act 1981 (WA) was appropriate. Alternatively that there should be a fine at the highest end of the available range.

3 The respondents submitted that a period of suspension or disqualification is not warranted but rather a reprimand or at most a fine at the lower end of the range was appropriate.

4 The Tribunal has concluded that any irregular treatment of trust funds is serious, but in this case did not warrant suspension. Rather the Tribunal considered that there should be a reprimand and a substantial fine imposed, and that the respondent should be ordered to pay the applicant's costs.

5 It is not necessary to set out in detail the facts giving rise to the offence. They are fully set out in our earlier reasons. In summary, the respondent transferred money, which it had collected to pay stamp duty, from its trust account into an interest bearing account for a short period. The monies were transferred at the point at which the relevant documents were stamped, and held in the interest bearing account until they fell due for the monthly remittance of all duty payable on documents stamped in the previous month. The interest earned on those short term deposits was then paid to the respondent or its nominees from time to time.

6 The Tribunal agrees with the Board that the misuse of trust funds in any way is a serious matter. It is true that, in this case, the funds were never intermingled with the respondent's own funds, and the interest bearing accounts were never in debit. The respondent apparently maintained accurate financial records so that the funds were always readily traceable and identifiable. The manner in which the scheme was administered reduced the likelihood of any loss being incurred by either the party who had paid the stamp duty or the Commissioner for State Revenue. This makes this case less serious than a case where a misuse of trust funds occurs in circumstances involving significant risk of loss to the person beneficially entitled to the funds.

7 That said, any failure on the part of a settlement agent to strictly observe the statutory requirements in relation to trust accounts is a serious matter. There can be little doubt that the funds were transferred with the object of obtaining a personal benefit for the respondent. In the period to which the allegations in these proceedings relate, $31962.23 in interest was transferred to the benefit of either the respondent, its directors or their wives. The scheme had the effect of depriving the Board Interest Account established under s 103(1) of the Act, of the interest it would have received if the funds were held in the statutory trust account. As we observed in the principal decision, the funds, once transferred, were no longer subject to the audit requirements of the Act nor to the other regulatory and supervisory powers relating to trust accounts under the Act.

8 In our view, the penalty should recognise the seriousness with which breaches of the statutory requirements related to trust accounts are treated. It should also provide a deterrent, not only to the respondent, but also to settlement agents generally, from any departure from the regulatory requirements relating to trust accounts.

9 In relation to penalty, Mr Gibson, a principal of the respondent, provided an affidavit setting out, amongst other things, the circumstances by which the holding account was established. He said that, in 1997, when approval was given to the respondent to remit stamp duty by return, he was told by an officer of the Office of State Revenue (OSR) that, upon stamping the instruments, the stamp duty monies belonged to the OSR and should be paid into a trust account for it. He said that he took that advice as requiring a separate trust account to be established as an OSR trust account. He considered it was reasonable for the OSR to so direct him because the money belonged to it. He added that the OSR did not at anytime make any claim for payment of the interest accruing on the funds held prior to remittance.

10 Accepting Mr Gibson's evidence as to the advice given to him by the OSR, there is no explanation as to how Mr Gibson, or anyone else associated with the respondent, considered that anyone other than the "owner" of the funds was entitled to the interest earned by those funds. Implicit in Mr Gibson's affidavit is the proposition that, because the OSR made no claim for payment of the interest, the respondent was entitled simply to take the interest. That proposition seriously misconceives the obligations and entitlements of a trustee.

11 Nor is there any apparent basis for construing the "direction" of the officer of OSR as a direction to pay the money into a trust account other than a statutory trust account maintained under the Act. All that was required to comply with the direction was the transfer from the client's ledger in the trust account to an OSR ledger in that account. The fact that no claim for the interest was ever made by the OSR is understandable because, properly held in the statutory trust account, no interest would be payable to the OSR. It is reasonable to assume that the OSR believed that to be the situation.

12 Mr Gibson has held a settlement agents licence from 1984, and the respondent has had its licence since April 1988. The respondent apparently employees seven people fulltime and completes approximately 150 settlements per month. The respondent, and its principal Mr Gibson, are experienced settlement agents. It is reasonable to infer that the arrangements for dealing with stamp duty funds pending remission to the OSR were put in place for the specific purpose of enabling the respondent to receive the interest earned on those funds.

13 It is of concern that, as the respondent points out in its submissions, the trust account was audited annually throughout the period that stamp duty monies were dealt with in the way we have found to be irregular. Apparently the matter was brought to the Board's attention when, in the 2003 financial year, the auditor sought the opinion of the Board as to whether the practice was a breach of the Act. The fact that earlier auditors failed to detect the irregularity does not alter the conclusion that the arrangement was one that an experienced settlement agent should have recognised as a breach of the Act.

14 When the respondent received a letter from the applicant on 4 March 2004 stating that there may be a breach of the Act, Mr Gibson immediately ceased withdrawing interest from the interest bearing account. The interest accrued since 1 January 2004 remains in the account. Mr Gibson deposed, and we accept, that upon the Tribunal's decision being handed down he immediately ceased the practice of paying stamp duty monies to the credit of the interest bearing account and has held stamp duty monies in the statutory trust account until remitted to OSR.

15 In his affidavit, Mr Gibson has undertaken to the Tribunal to pay the Board or to OSR, as the Board directs, the whole of the interest accrued and accruing on the interest bearing accounts after the deduction of fees, FID and BAD incurred in respect of those accounts. His undertaking is to pay the interest accrued since 1 January 2004 immediately, and as to the balance within 30 days after receipt of the Board's direction. That is an important undertaking in the context of the determination of the appropriate penalty in this case. Given the amount of the interest, in the absence of a requirement for the repayment of the interest, the imposition of a fine, even of the maximum amount, would have seen the respondent or its associates profit from the arrangements.

16 The period with which the allegations dealt in these proceedings extends from 3 October 1997 to 31 July 2003. As earlier indicated, interest totalling $31962.23 was transferred to the respondent and its associates within that period. Mr Gibson has indicated that the interest accrued since 1 January 2004 remains in an account. It is not clear what has happened in relation to the interest earned between 31 July 2003 and 31 December 2003. The Tribunal construes Mr Gibson's reference to "the balance" as a reference to all interest earned prior to 31 December 2004, and not merely the $31962.23 identified in the course of these proceedings. It is upon that basis that the undertaking is accepted. The interest should be paid to the Board and, in our view, should then be placed in the Board Interest Account which would have received the interest if the funds were properly dealt with at the relevant time.

17 It is a mitigating factor that, as soon as the Board raised with the respondent the issue as to the treatment of stamp duty funds, the respondent ceased to withdraw interest until the issue was resolved. It is clear that the respondent cooperated with the Board, and a hearing of the matter was greatly facilitated by the respondent's cooperation in agreeing facts and disclosing documents.

18 As earlier indicated, the Tribunal views this matter as serious. The misapplication of trust funds calls for a significant penalty. In the absence of the undertaking to repay all of the interest, the Tribunal would have had no hesitation in imposing a significant period of suspension on the respondent's licence. In determining the appropriate penalty, we take into account the fact that the undertaking has been given and accepted, the fact that the funds were not intermingled with the respondent's funds, the fact that there was little if any practical risk of loss of the funds, the significant impact of suspension on the livelihoods of employees of the business innocent of any wrongdoing, and the respondent's cooperative approach to these proceedings. We have determined that the necessary deterrent objective, the protection of the public and the demonstration of the seriousness with which transgression of trust account rules are viewed, can be satisfied by the imposition of a fine of the maximum amount, namely $10000.00, coupled with a reprimand to the respondent.

19 In the decision Medical Board v Roberman [2005] WASAT 81(S) at [30] the Tribunal said:

"S87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, or course, a matter of discretion to be exercised in the circumstances of each case."

20 The respondent resists the making of an award of costs against it on the basis that weight should be given to the extent to which the respondent cooperated to enable the matter to be dealt with expeditiously. In the Tribunal's view, however, the reasoning referred to in the Roberman decision applies in this case. The cooperation extended by the respondent had the result of reducing the costs to both parties that might otherwise have been incurred. The respondent benefits from that cooperation in that its own costs, and the Board's costs potentially recoverable against it, are reduced.

21 The applicant submitted that "in the circumstances a reasonable award of costs is $10000.00". Absolutely no detail was provided as to how that sum was arrived at. The respondent observed that the submission as to quantum was unsubstantiated and submitted that the amount is "at odds with the time required for the hearing, the fact that no oral evidence was required and that the issue was solely determined on the interpretation of one section of the relevant Act".

22 Rule 43 of the State Administrative Tribunal Rules 2004 (WA) provides that if the Tribunal does not fix the amount of costs, the amount is to be assessed or settled by the executive officer or a member of the Tribunal nominated by the president. It is highly desirable that the Tribunal fix costs where reasonably possible so as to avoid the incurring of additional costs on both sides in relation to a process of assessment. Neither party has suggested that costs should be assessed by the executive officer or a nominee of the president. In the circumstances, we consider it appropriate to fix an amount of costs notwithstanding the lack of information as to the precise work undertaken by the respondent. We have, however, had regard to the nature of the issues in dispute, the likely work associated with settling and compiling the substantial book of documents, the necessity to brief counsel, the preparation of the matter for hearing and the length of hearing, and have assessed an appropriate amount of costs to be payable by the respondent to the applicant as $6000.00.

23 For the foregoing reasons, the Tribunal orders:

3. the respondent pay the applicant's costs of the proceedings fixed at $6000.00.

I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT