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WA Tribunal Decision: Commissioner vs SANZ Property Solutions

[2024] WASAT 114 (S)
Page 1
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
CITATION : COMMISSIONER FOR CONSUMER PROTECTION and SANZ PROPERTY SOLUTIONS PTY LTD [2024] WASAT 114 (S)
MEMBER : DR M EVANS-BONNER, SENIOR MEMBER
MR M BENTER, MEMBER
MR B POUND, SESSIONAL MEMBER
HEARD : 18 FEBRUARY 2025
DELIVERED : 19 MAY 2025
FILE NO/S : VR 93 of 2023
BETWEEN : COMMISSIONER FOR CONSUMER PROTECTION
Applicant
AND
SANZ PROPERTY SOLUTIONS PTY LTD
First Respondent
PHILLIP ANDREW SHANKS
Second Respondent
Catchwords:
Vocational regulation – Real estate agent – Breaches of Real Estate and Business Agents Act 1978 (WA) and Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (WA) in connection with management of a residential property – Determination of appropriate penalty – First and Second
[2024] WASAT 114 (S)
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Respondent reprimanded – First and Second Respondent disqualified from holding a real estate agent’s licence and triennial certificate for a period of two years – Second Respondent fined $4,000 and ordered to pay the Applicant’s costs in the sum of $6,000
Legislation:
Consumer Protection Legislation Amendment Act 2019 (WA), s 2(b), s 53
Fair Trading Act 2010 (WA), s 69
Real Estate and Business Agents Act 1978 (WA), s 26, s 27, s 27(1)(b), s 29, s 29(a), s 31, s 68, s 68(4), s 68(5), s 102, s 102(1), s 102(1)(a), s 102(7), s 103(1), s 103(1)(a), s 103(1)(b), s 103(1)(c), s 103(2), s 103(2)(c), s 103(2)(d),
Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (WA), r 6, r 10
Residential Tenancies Act 1987 (WA), s 29(4)(b)
Settlement Agents Act 1981 (SA), s 83, s 84(1), s 84(1)(c)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2), s 87(3)
Result:
First and Second Respondents reprimanded and disqualified from holding a real estate agent’s licence and a triennial certificate for a period of two years
Second Respondent to pay a fine of $4,000 and the Commissioner’s legal costs in the amount of $6,000
Category: B
Representation:
Counsel:
Applicant
:
Mr JLC Rivalland & Ms K Posthumus
First Respondent
:
In person
Second Respondent
:
In person
Solicitors:
Applicant
:
Consumer Protection Legal Unit
First Respondent
:
N/A
Second Respondent
:
N/A
[2024] WASAT 114 (S)
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Case(s) referred to in decision(s):
Banning v Wakka [2007] WADC 17
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336
Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S)
Commissioner for Consumer Protection and Sanz Property Solutions Pty Ltd and Phillip Andrew Shanks [2024] WASAT 114
Commissioner for Consumer Protection and Sunrun Nominees Pty Ltd [2017] WASAT 31
Commissioner for Consumer Protection v Del Valle [2024] WASAT 36
Grljusich v Andrews [2003] WASCA 206
Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)
Legal Profession Complaints Committee v Wells [2014] WASAT 112 (S)
Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179
Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97
Quinn v Law Institute of Victoria [2007] VSCA 122
Real Estate and Business Agents Supervisory Board and Carmello Charles Parrella T/A Charles Parrella & Associates [2008] WASAT 115
Real Estate and Business Agents Supervisory Board and Kamil [2008] WASAT 189
Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35
[2024] WASAT 114 (S)
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REASONS FOR DECISION OF THE TRIBUNAL:
Background
1
This is the Tribunal’s decision and reasons in respect of penalties and costs arising from the substantive decision in this matter published on 8 October 2024 (Original Decision).1
2
In the Original Decision the Tribunal determined that there is proper cause for disciplinary action against the First Respondent, Sanz Property Solutions Pty Ltd (Sanz Property), and the Second Respondent, Mr Phillip Shanks, pursuant to s 103(2)(c) and (d) of the Real Estate and Business Agents Act 1978 (WA) (REBA Act).
3
The allegations were initially brought before the Tribunal by an application made on 30 August 2023 by the Commissioner for Consumer Protection (Commissioner, also referred to as the Applicant) pursuant to s 102(1)(a) of the REBA Act.
4
The allegations concerned conduct of the Respondents in connection with the management of a residential investment property (the Property) owned by Ms J, between November 2016 and April 2022, which Sanz Property through Mr Shanks managed pursuant to a management agreement.
5
For the reasons set out below, we have decided to reprimand the Respondents and disqualify them from holding a real estate agent’s licence and a triennial certificate for a period of two years. We have also decided that Mr Shanks should pay a fine of $4,000 and the Commissioner’s legal costs in the amount of $6,000.
The Original Decision
6
Following a hearing on 18 July 2024, the Tribunal found that the Respondents had breached:
(a) s 68(4) of the REBA Act when Mr Shanks transferred the bond monies from the business trust account of Sanz Property into his personal bank account at the end of the tenancy;
(b) r 10 of the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (WA) (the Code) by failing to respond to Ms J within a reasonable time and failing to
1 Commissioner for Consumer Protection and Sanz Property Solutions Pty Ltd and Phillip Andrew Shanks [2024] WASAT 114.
[2024] WASAT 114 (S)
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follow her instructions. This conduct included failing to follow Ms J’s instructions concerning the use of the bond monies, and failing to provide Ms J with tenancy documentation she requested, including the property condition report and final inspection report;
(c) r 6 of the Code by failing, amongst other things, to properly undertake a final inspection of the Property; and
(d) s 29(4)(b) of the Residential Tenancies Act 1987 (WA) (RT Act) by failing to lodge the bond monies with the Bond Administrator in the 14-day statutory time limit.
7
At the time the Original Decision was delivered, the following orders were made by the Tribunal:
The Tribunal orders:

  1. There is proper cause for disciplinary action against the First Respondent, Sanz Property Solutions Pty Ltd, and the Second Respondent, Mr Shanks, as mentioned in s 103(2)(c) and (d) of the Real Estate and Business Agents Act 1978 (WA).
  2. By 5 November 2024 the Commissioner for Consumer Protection is to file with the Tribunal and serve on the First and Second Respondent submissions on penalties and costs.
  3. By 3 December 2024 the First and Second Respondent are to file with the Tribunal and serve on the Commissioner for Consumer Protection submissions on penalties and costs.
  4. Subject to any further order, the determination of penalties and costs will be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA).
    Procedural overview
    8
    In accordance with those orders, on 5 November 2024, the Commissioner lodged the following documents with the Tribunal:2
    (a) Applicant’s Submissions on Penalty and Costs;
    (b) Annexure A to the Applicant’s submissions (being a summary of authorities relating to the question of disqualification); and
    2 Applicant’s Submissions on Penalty and Costs dated 31 October 2024, filed on 5 November 2024 (Submissions on Penalty and Costs).
    [2024] WASAT 114 (S)
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    (c) Annexure B to the Applicant’s submissions (being a Schedule of legal costs incurred by the Applicant).
    9
    On 6 November 2024, the Respondents lodged a document titled ‘Appeal of SAT Decision’. While this document, on its face, lists several matters in the Original Decision with which the Respondents apparently take issue, it does not constitute any form of submissions as to penalties and costs. With no further context having been provided by the Respondents, the purpose of this document being lodged with the Tribunal was unclear.
    10
    On 13 November 2024, an email was sent by staff of the Tribunal, at the direction of the Tribunal, which stated relevantly:
    

    The Tribunal has received the Applicant’s submissions on penalty and costs, which were filed on 5 November 2024.
    On 6 November 2024, the Tribunal received a document from the Respondents, filed on 6 November 2024, titled, ‘Appeal of SAT Decision: Grounds for Appeal’.
    The Tribunal does not hear appeals from itself in these types of matters and so filing this document does not institute an appeal of the Tribunal’s decision. The Respondents may wish to seek legal advice about this.
    Can the Respondents please confirm if they intended this document to be their submissions on penalties and costs, due on 3 December 2024? Otherwise, the Tribunal anticipates receiving the Respondents’ submissions on penalty and costs by 3 December 2024.
    11
    It appears from the Tribunal’s records that the 13 November 2024 email may have been sent to a previous email address for the Second Respondent. Accordingly, the email was forwarded on 19 November 2024 to what was understood from the Tribunal’s records to be the current email address used by the Second Respondent.
    12
    Notwithstanding the 8 October 2024 orders and the email correspondence referred to above, no submissions were lodged with the Tribunal by either the First or Second Respondent in respect of penalties and costs.
    13
    Noting that the Respondents are self-represented, the Tribunal considered that they ought to be given further opportunity to seek to address the Tribunal as to the issue of penalties and costs and to respond to any matters they may wish to in respect of the Commissioner’s detailed written Submissions on Penalty and Costs.
    [2024] WASAT 114 (S)
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    14
    Accordingly, on 6 December 2024, the Tribunal made orders, in effect requiring the parties to provide their unavailable dates for a hearing on penalties and costs, to be listed by the Tribunal for a duration of three hours. Following the lodgement of available dates by all parties, the Tribunal listed the hearing for 18 February 2025.
    15
    The 6 December 2024 orders also granted leave to the Respondents to file and serve, by 20 December 2024, any submissions on penalties and costs.
    16
    The 6 December 2024 orders were sent to the parties with an email from the Tribunal that stated:
    Dear parties
    We refer to the Tribunal’s orders of 8 October 2024, and our email to the parties sent on 13 November 2024.
    The Tribunal notes that:
  1. Disciplinary action by SAT, alleging cause for
    (1) The Commissioner may allege to the State Administrative Tribunal that —
    [2024] WASAT 114 (S)
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    (a) there is proper cause for disciplinary action, as mentioned in section 103(2), against an agent; 

    

    (7) Despite the surrender by a person of a licence or triennial certificate or a licensee ceasing to be licensed or to hold a triennial certificate —
    (a) an allegation under subsection (1)(a) in respect of an agent may be made to the State Administrative Tribunal not later than 12 months after the day on which the licence or certificate was surrendered or the licensee ceased to be licensed or ceased holding the certificate; and
    (b) the State Administrative Tribunal may exercise the powers conferred by section 103, other than the power to suspend or cancel the agent’s licence or certificate.
    25
    Section 103(2) of the REBA Act further defines when there will be proper cause for disciplinary action against an agent:
    (2) There shall be proper cause for disciplinary action against an agent if —
    (a) the agent improperly obtained a licence or triennial certificate; or
    (b) the agent, or any person acting with the authority or upon the instructions of the agent has in the course of any dealings with a party, or a prospective party, to a transaction, been guilty of conduct that constitutes a breach of any law other than this Act and that prejudices or may prejudice any rights or interests of the party, or prospective party to the transaction; or
    (c) the agent is acting or has acted in breach of —
    (i) a special condition of his licence or triennial certificate; or
    (ii) the requirements of this Act; or
    (iii) the code of conduct for agents;
    or
    [2024] WASAT 114 (S)
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    (d) any other cause exists that, in the opinion of the State Administrative Tribunal, renders the agent unfit to hold a licence.
    Penalties
    26
    Section 103(1) of the REBA Act sets out the penalties that the Tribunal may impose following a finding that there is proper cause for disciplinary action against an agent. It provides:
  2. Disciplinary action, SAT’s powers as to
    (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 —
    (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; 

    Costs
    27
    With respect to whether costs can be awarded to the successful party, the starting point is that parties pay their own costs. Subsection 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
  3. Costs of parties and others
    (1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
    28
    However, s 87(2) of the SAT Act provides that the Tribunal has the discretion to order a party to pay another party’s costs:
    Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
    [2024] WASAT 114 (S)
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    29
    In vocational disciplinary matters, it is common for the regulator to be awarded costs if they are successful in a Tribunal proceeding. In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman), at [30], the Tribunal explained:
    Section 87(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, of course, a matter of discretion to be exercised in the circumstances of each case.
    30
    Further, there is provision in s 87(3) of the SAT Act for a party to pay the other party compensation in specified circumstances. That subsection provides:
    The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
    Penalties and costs sought by the Commissioner
    31
    With his initial 30 August 2023 application to the Tribunal, the Commissioner sought orders that the Respondents be fined pursuant to s 103(1)(b) of the REBA Act; reprimanded pursuant to s 103(1)(a) of the REBA Act; and that they pay the Commissioner’s costs of the proceeding pursuant to s 87(2) of the SAT Act. There was no indication of the amount of the fine or costs that the Commissioner was seeking.
    32
    Following the Original Decision, in the Commissioner’s Submissions on Penalty and Costs, the Commissioner sought the following orders:
    
 that each Respondent should:
    a. Be reprimanded;
    [2024] WASAT 114 (S)
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    b. Be fined in the upper to near maximum penalty for each allegation separately;
    c. Be disqualified from holding a licence or triennial certificate, either permanently or until further order of the Tribunal;
    d. Pay the Applicant’s costs of the application pursuant to sections 87(2) and 88(2) of the State Administrative Tribunal Act 2004 (SAT Act); and
    e. Pay compensation to Ms J for the expenses resulting from the proceeding pursuant to s 87(3) of the SAT Act.
    33
    As can be seen from these orders, they are more extensive than those initially sought and include the possibility of permanent disqualification. The Commissioner’s Submissions on Penalty and Costs submit that disqualification is appropriate on the basis that the Respondents are not fit and proper persons to hold a real estate agent’s licence or a triennial certificate.
    34
    The orders seek disqualification permanently or until further order of the Tribunal. Unlike s 84(1)(c) of the Settlement Agents Act 1981 (WA) (SA Act), which contemplates that the Tribunal could order disqualification ‘until further order of the Tribunal’, s 103(1)(c) of the REBA Act does not. We are therefore satisfied that we can permanently or temporarily disqualify the Respondents’ from applying for a licence or triennial certificate for a specified period, or until any condition is satisfied, but not until further order of the Tribunal.
    35
    The substantial difference between the penalties initially sought by the Commissioner and those sought on 31 October 2024, was (as the Tribunal indicated in the above email to the parties that was sent with the 6 December 2024 orders) one of the reasons why we considered that the parties should have the opportunity of an in-person hearing on penalty and costs, rather than those issues being determined on the documents. Unfortunately, we could not proceed to hear submissions about that point at the hearing due to Mr Shanks’ disruptive behaviour.
    36
    The Commissioner’s costs were stated in a ‘Schedule of Costs’ in Annexure B. That Schedule stated an amount of $7,772.00, but in the Commissioner’s Submissions on Penalty and Costs, the Commissioner sought a fixed amount of $6,000.00.3
    3 Paragraph [122].
    [2024] WASAT 114 (S)
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    37
    The Commissioner has also sought compensation in the sum of $502.00 for Ms J, pursuant to s 87(3) of the SAT Act. The Commissioner cited the decision in Bowman and Local Government Standards Panel [2024] WASAT 22 (S) (Bowman) at [14] as authority in support of this submission. However, Bowman does not provide any authority for that submission. Indeed, at the relevant paragraph cited from Bowman the Tribunal refused to award costs to a party which the party sought for his own time, and for what the Tribunal regarded as a claim by the party for common law damages.
    38
    In our view, an order to compensate a non-party cannot be made under s 87(3) of the SAT Act which refers to the Tribunal being able to make an order to ‘compensate the other party’. Ms J was not a party. Further, although 87(2) of the SAT Act contemplates that the Tribunal may make an order for the payment of costs of a person required to produce a document or other material on the application of a party under s 35, the costs sought on behalf of Ms J do not fall into that category.
    39
    Understandably, the change in the Commissioner’s position with respect to Penalties and Costs was certainly influenced by Mr Shanks’ evidence and conduct at the hearing of the substantive application on 18 July 2024 and the Tribunal’s findings in the Original Decision.
    40
    In the Commissioner’s Submissions on Penalty and Costs, the Commissioner outlined his ‘ultimate submissions’ on those issues with reference to several of the Tribunal’s findings and observations in the Original Decision. The Commissioner’s submissions in this regard are to the effect that:
    (a) The Tribunal found that the Respondents had contravened two rules of the Code, one provision of the REBA Act, and one provision of the RT Act;
    (b) The Tribunal noting the following at para [218] of the Original Decision, which the Commissioner strongly agreed with: ‘the most serious breaches concerned Mr Shanks transferring the bond monies from the business trust account into his personal bank account. That alone would justify a finding that there is proper cause for disciplinary action against Sanz Property and Mr Shanks’.
    (c) The penalty for contraventions of s 68(4) offences has increased, which reflects the community’s view of the seriousness of this type of offending. The specific submission was: ‘
there has
    [2024] WASAT 114 (S)
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    been a significant increase in penalties with regard to s 68(4) offences between the dates of the offences themselves and the commencement of these proceedings in the SAT, having risen from a fine only offence (maximum of $25,000), to now being inclusive of immediate imprisonment terms, up to 2 years maximum (s 84(1)(a))’.
    (d) That the penalties and costs sought by the Commissioner have regard to the entirety of the conduct, as was noted by the Tribunal at para [13] that: ‘
 Mr Shanks misunderstood his legal and ethical obligations as a real estate agent and that he lacked insight into his conduct’.
    41
    The submission in para [40(c)] above refers to ‘offences’, but we note that there was only one contravention of s 68(4) of the REBA Act by the Respondents when Mr Shanks, on approximately 10 March 2022, transferred the bond monies from the business trust account into his personal account. Further, the maximum penalties applicable to s 68(4) were amended by s 53 of the Consumer Protection Legislation Amendment Act 2019 (WA) (Amendment Act) which, among other things, amended s 84(1)(a) to include a fine of $25,000 or 2-years imprisonment for an offence against s 68(4) and (5) of the REBA Act. That amendment commenced on 1 January 2020.4 Consequently, those penalties were already applicable to s 68(4) of the REBA Act at the time of the conduct on 10 March 2022, and at the time the proceeding was commenced in the Tribunal by the Commissioner on 30 August 2023. Therefore, the submission in para [40(c)] above, to the effect that the penalties had subsequently increased between the date of the conduct and the date of the commencement of this proceeding, is not correct and must be rejected.
    42
    In any event, the proceedings in the Tribunal are not in respect of the prosecution of alleged ‘offences’ under the REBA Act, but are concerned with the Commissioner’s application in respect of disciplinary action pursuant to s 102(1), with the applicable penalties being those set out in s 103(1) of the REBA Act.
    4 Amendment Act, s 2(b) and Gazette 24 December 2019, page 4415.
    [2024] WASAT 114 (S)
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    General principles relevant to penalty
    Protection of the public
    43
    In Commissioner for Consumer Protection and Sunrun Nominees Pty Ltd [2017] WASAT 31 (Sunrun), the Tribunal observed, at [71], ‘[t]he dominant purpose of the disciplinary provisions of the REBA Act is the protection of the public by the maintenance of proper standards within the profession’.
    44
    Sunrun concerned the appropriate penalty to be imposed on a real estate sales representative who had breached the REBA Act and the Code of Conduct for Agents and Sales Representatives 2011 (WA).
    45
    Similarly, in Mavaddat v Real Estate & Business Agents Supervisory Board [2009] WASCA 179 (Mavaddat), an appeal from a decision of the Tribunal to permanently disqualify an agent from holding a real estate agent’s licence or a triennial certificate, the Court of Appeal observed, at [95]:
    
 it is important to bear in mind the purpose of disciplinary proceedings. They are the protection of the public and the maintenance of proper professional standards[.]
    46
    In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 (Paradis), Buss JA, with whom Wheeler JA and Pullin JA agreed, observed, at [25]:
    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[.]
    47
    In Sunrun, the Tribunal also observed, citing Quinn v Law Institute of Victoria [2007] VSCA 122 at [31], that ‘[w]here there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public’.
    Reprimands, fines, and disqualifications
    48
    In Commissioner for Consumer Protection v Del Valle [2024] WASAT 36 (Dell Valle), at [102] – [103], the Tribunal, citing Chiropractic Board of Australia and Ebtash [2020] WASAT 86 (S) at [126], explained the concept of a fine. The Tribunal explained:
    [2024] WASAT 114 (S)
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    102 A caution or reprimand involves ‘a public censure for conduct’ or ‘a formal and stern warning or rebuke’ to a person subject to disciplinary action which ‘signals the need for them to refrain from such conduct in the future’.
    103 A reprimand is a means of informing the public, clients of settlement agents and other settlement agents that the standards expected of a settlement agent have not been met and that the settlement agent has been censured for their conduct. (Footnote omitted.)
    49
    In Dell Valle, the Tribunal also observed, at [125], that ‘[a] fine operates as a pecuniary penalty’.
    50
    It is often the case that if the Tribunal considers that a licence cancellation, disqualification or suspension is appropriate to maintain professional standards and protect the public, it will not impose a fine because to do so would be punitive: see Real Estate and Business Agents Supervisory Board and Carmello Charles Parrella T/A Charles Parrella & Associates [2008] WASAT 115 at [40] and [44] cited in Dell Valle at [128].
    51
    Similarly to Dell Valle, in this proceeding the Respondents did not renew their real estate and business agents licences and triennial certificates after 21 July 2023 and have not held those licences since that time. Consequently, suspension or cancellation is not an available remedy (see s 102(7) REBA Act), however the other remedies in s 103 are available, relevantly the ability to disqualify the Respondents from holding a licence for a specific period, until the fulfilment of a condition, or permanently.
    52
    A period of disqualification may be appropriate to maintain professional standards and to protect the public in circumstances including where the agent is found to be unfit to practise. In Paradis, the Court of Appeal explained, at [80]:
    Ordinarily, where a settlement agent has been found unfit to practise, the appropriate order will be cancellation of his or her licence and disqualification (either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the Tribunal or until the further order of the Tribunal) from holding a licence or triennial certificate or both. Also, ordinarily, where a finding is not made that a settlement agent is unfit to practise, but there is, nevertheless, proper cause for disciplinary action, some lesser penalty will be warranted. Plainly, however, each case must depend on its particular facts and circumstances[.]
    (References omitted.)
    [2024] WASAT 114 (S)
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    53
    A breach of public trust may, depending on the circumstances of the case, indicate that an agent is incapable of re-establishing themselves as a person who is fit and proper in the future. In Mavaddat, the Court of Appeal observed, at [95]:
    
 While the question of whether or not an agent is capable of reestablishing himself or herself in the future is a relevant matter for consideration on the question of penalty, it is not the only matter. Where the Tribunal considers that a penalty should be imposed under s 103(1)(c) of the Act it must consider the whole of the relevant circumstances to determine what penalty will most properly give effect to the objects of the Act.
    54
    Pursuant to s 26 of the REBA Act, a person cannot carry on business as a real estate agent unless they are licensed and hold a current triennial certificate in respect of the licence.
    55
    Section 27 of the REBA Act concerns the licensing of individuals. It provides:
    (1) Subject to this Act, an individual who applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that the individual —
    (a) is of or over the age of 18 years; and
    (b) is a person of good character and repute and a fit and proper person to hold a licence; and
    (c) has sufficient material and financial resources available to enable them to comply with the requirements of this Act; and
    (d) understands fully the duties and obligations imposed by this Act on agents.
    (2) In subsection (1)(b) fit and proper includes being qualified in accordance with Schedule 1 but subject to the savings and exceptions provided in this Act.
    (Our emphasis in s 27(1)(b).)
    56
    With respect to the licensing of a body corporate, s 29 of the REBA Act provides:
    Subject to this Act, a body corporate which applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the
    [2024] WASAT 114 (S)
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    licence shall be granted and may hold a licence if the Commissioner is satisfied that —
    (a) all of the directors of the body corporate, and all of the persons concerned in the management or conduct of the body corporate, are persons of good character and repute and are persons fit to be concerned as directors of, or in the management and control of, an agent’s business; and
    (b) it has sufficient material and financial resources available to it to comply with the requirements of this Act; and
    (c) unless for good cause shown by the applicant the Commissioner otherwise determines, where there are not more than 3 directors of the body corporate at least one of them is licensed or where there are more than 3 directors of the body corporate at least 2 of them are licensed; and
    (d) the person in bona fide control of the business operated under the licence is licensed.
    (Our emphasis.)
    57
    Pursuant to s 31 of the REBA Act, which concerns the grant and renewal of a triennial certificate, the Commissioner must be satisfied of the matters in s 27(1)(b) for an individual, and s 29(a) for a body corporate, namely that they are a fit and proper person to hold a licence and fit to be a director of or in the management and control of an agent’s business.
    58
    We make several observations concerning these provisions. If there is a fit and proper requirement for the grant or renewal of a licence and triennial certificate under the REBA Act, whether a person is fit and proper because of their conduct which is the subject of a disciplinary proceeding will be relevant when considering the appropriate penalty.
    59
    In Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 (LJW), the Tribunal considered the meaning of the expression ‘fit and proper’. The Tribunal observed, at [26]:
    The expression ‘fit and proper’ takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities 
 When used in connection with an office or vocation it normally comprises the three characteristics of honesty, knowledge and ability in the conduct of that office or vocation 

    (References omitted.)
    [2024] WASAT 114 (S)
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    60
    In LJW, the Court continued, at [27], to explain what is meant by the expression ‘fit and proper person’:
    In Real Estate and Business Agents Supervisory Board v Barnett, Kennedy J (5), in considering the meaning of ‘fit and proper’ in s 47(1)(b) of the Act, referred to what was said by Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 as follows:
    The issue whether an appellant has shown himself to be ‘a fit and proper person’, within the meaning of s 16(1) of the [Commercial and Private Agents] Act, is not capable of being stated with any degree of precision. But for the purposes of the case under appeal, I think all I need to say is that, in my opinion, what is meant by that expression is that an applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of the particular licence under the Act, but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails (cf Ex parte Meagher (1919) 19 SR (NSW) 433, at 442) (76)
    61
    In summary, a fit and proper agent is a person who can be trusted by members of the public to carry out the duties and responsibilities of an agent with honesty and integrity, and who has the requisite knowledge, skills and abilities to do so.
    Timing of the sanction
    62
    We are required to impose a penalty as at the date of our decision, and not by reference to a past date or dates when the conduct took place.
    63
    In Legal Profession Complaints Committee v Wells [2014] WASAT 112 (S) (Wells), the Tribunal observed, at [17] that ‘[t]he appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts’.
    Global penalty
    64
    Relevant to the Commissioner asking for separate fines for each allegation, and for each Respondent, in Wells at [23], the Tribunal observed:
    There are circumstances in which a ‘global’ approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72] – [75]).
    [2024] WASAT 114 (S)
    Page 23
    65
    In Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S), the Tribunal decided in the circumstances that it was appropriate to impose a global penalty. The Tribunal reasoned, at [19]:
    
 the practitioner’s professional misconduct formed part of a course of conduct over several months such that it is convenient to impose a global penalty in respect of the separate findings of professional misconduct, rather than seeking to impose separate penalties for each charge[.]
    Factors to be considered
    66
    In Paradis the Court of Appeal, at [30], outlined the considerations which the Tribunal must evaluate and weigh when determining which disciplinary orders are appropriate under the SA Act:
    
 It was necessary for the Tribunal, in determining the appropriate order or orders to be made under s 84(1) of the Settlement Agents Act, to evaluate and give weight to a variety of considerations, including:
    (1) the conduct giving rise to the allegations and its seriousness;
    (2) Ms Paridis’ explanation for her 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, relating to Ms Paridis and her business including her professional behaviour before and after the incidents in question, and the extent of her rehabilitation.
    The considerations which I have mentioned are not, of course, exhaustive. Rather, they are illustrative of the matters which the Tribunal was obliged to, and did, take into account and weigh for the purpose of determining the disciplinary orders which were appropriate, in the circumstances, to protect the public and maintain proper professional standards.
    67
    We observe that the relevant provisions of the SA Act are equivalent to those in the REBA Act. For example, by s 83 and s 84(1) of the SA Act, the Settlement Agents Supervisory Board may allege to the Tribunal that there is proper cause for disciplinary action against a settlement agent. Section 83 provides that if the Tribunal is so satisfied, it may do one of more of the things then set out in the section, which are the same as those in s 103(1)(a), (b) and (c) of the REBA Act.
    [2024] WASAT 114 (S)
    Page 24
    68
    We are therefore satisfied that the considerations set out by the Court of Appeal in Paradis are relevant to consider in this proceeding under the REBA Act.
    69
    The Commissioner’s Submissions on Penalty and Costs referred to the Tribunal’s decision in Wells. That was a penalty and costs decision concerning a legal practitioner, Mr Wells, who the Tribunal found had engaged in professional misconduct within the meaning of the Legal Profession Act 2008 (WA). In Wells, the Tribunal set out a list of 12 non-exhaustive factors that should be considered in determining an appropriate disciplinary sanction, at [20].
    70
    Relevantly, Paradis and Wells were considered in Sunrun. As we mentioned above, Sunrun concerned a disciplinary proceeding under the REBA Act. Based on Paradis and Wells, the Tribunal set out, at [68] – [69], the following 12 non-exhaustive factors as being applicable to a real estate agent:5
    1) any need to protect the public against further misconduct by the agent;
    2) the need to protect the public through general deterrence of other agents from similar conduct;
    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 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;
    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;
    5) whether the agent has breached any:
    a) Act;
    b) Regulations;
    c) Guidelines or Code of Conduct, issued by the relevant professional body; and
    d) whether the practitioner has done so knowingly;
    5 References omitted.
    [2024] WASAT 114 (S)
    Page 25
    6) whether the agent’s conduct demonstrated incompetence, and if so, to what level;
    7) whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future;
    8) the agent’s disciplinary history;
    9) 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;
    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;
    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;
    10) the desirability of making available to the public any special skills possessed by the agent;
    11) 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;
    (12) 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. 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.
    69 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 

    [2024] WASAT 114 (S)
    Page 26
    71
    In our view, the above 12 factors set out in Sunrun, are applicable to this proceeding because they are the REBA Act equivalent to the factors for legal practitioners set out in Wells.
    72
    The factors set out in Sunrun were recently applied by the Tribunal in Dell Valle, at [49], which concerned the appropriate penalty for a settlement agent following the Tribunal’s finding that there was a proper cause for disciplinary action against her.
    73
    We will now consider and evaluate the factors from Paradis and Sunrun to the extent they are relevant to the circumstances of the Respondents in this case.
    74
    As we explained in the Original Decision, there was no evidence that anyone other than Mr Shanks was working for Sanz Property and as the director of that company, the actions of Mr Shanks were undertaken on behalf of Sanz Property and were for most purposes interchangeable. We have therefore dealt with the Respondents together.
    Relevant factors
    The protection of the public
    75
    Of critical importance is the protection of the public.
    76
    Mr Shanks was engaged by Ms J to manage her property because she was not able to do so herself due to her work and travel commitments. At the end of the Respondents’ management of the property, it was left in a damaged and rundown state by the tenants. Ms J was entitled to trust that the Respondents would properly manage her property in her absence, as they were being paid to do pursuant to the Management Agreement. She was also entitled to expect that the Respondents would follow her reasonable instructions, abide by the terms of the Management Agreement, including providing copies of documents reasonably requested and assisting Ms J with her insurance claim. Of concern is that Mr Shanks has no insight whatsoever into his conduct, despite our finding that it breached the REBA Act, the RT Act and the Code.
    77
    There is, in our view, a need to protect the public from similar conduct by the Respondents in the future and for any penalty we impose to have a deterrent effect to protect the public from further conduct of this kind.
    [2024] WASAT 114 (S)
    Page 27
    The necessity for general deterrence and reinforcing proper professional standards and maintaining public confidence in relation to the professional and ethical behaviour of agents
    78
    We have dealt with the considerations of general deterrence and reinforcing professional standards together because they are related.
    79
    The professional standards that agents are expected to abide by are set out in legislation including the REBA Act and the RT Act, and in the Code with respect to ethical standards. The purpose is to regulate the industry, and to thereby protect the public and to maintain standards within the profession. For example, there are strict rules for agents about monies held in agents’ trust accounts to ensure monies are protected and accounted for. The role of an agent also has the potential to affect property rights including ownership and security of tenure. The very nature of an agency relationship is that the agent must follow the principal’s reasonable and lawful instructions. Agents are in trusted positions and members of the public, including landlords and tenants, are entitled to expect that agents will discharge their contractual, statutory and ethical duties diligently and competently. It is therefore essential that agents act with due care and skill, including keeping accurate records, such as property condition and inspection reports. In our view, general deterrence informs the penalty to be imposed in this case so that other members of the real estate profession understand that the types of breaches committed by the Respondents are unacceptable and are deterred from similar conduct. This will assist to ensure the protection of the public and the maintenance of the high standards expected of agents in the real estate profession.
    Whether the public and fellow agents can place reliance on the word and conduct of the agent
    80
    This factor applies when there is conduct such as misleading conduct, including dishonesty.
    81
    In his submissions on Penalty and Costs, the Commissioner submitted that ‘the Respondents conduct was of a significant dishonest nature’. The Commissioner asserted that this conduct included withholding information and lying to Ms J about the status of the property and provision of inspection reports, making baseless accusations against Ms J, claiming to have cleaned the Property to a sufficient standard, and Sanz Property producing a final invoice for the exact amount of the bond with a GST component with no evidentiary support.
    [2024] WASAT 114 (S)
    Page 28
    82
    However, when one looks at the nature of the conduct which we found to give cause to disciplinary action against the Respondents, we did not make any specific findings that the conduct was misleading or dishonest. For example, we found that Mr Shanks refused to provide Ms J with a property condition report, final inspection report, and any inspection reports, but we did not find that he lied about them. We found that it was likely that no inspections were undertaken after the COVID-19 pandemic, and that there was probably nothing or very little to provide Ms J with, which could have in part been due to inadequate record keeping by the Respondents. It was also unclear to us whether Mr Shanks failed to conduct a final inspection of the Property despite saying that he did, or whether he did so but did not recognise the difference between fair wear and tear and the Property being in a damaged and untenantable state. Rather than being dishonest conduct, we found that this was a failure to exercise due care, diligence, and skill. With respect to the trust monies, we found that if we accepted the amounts that Mr Shanks said he spent on the Property from the bond monies held on trust, the total sum was still $942.99 short. That is, that sum was unaccounted for. However, there was no allegation by the Commissioner, and we did not make any findings, that he dishonestly retained those funds for himself.
    83
    However, given the conduct and Mr Shanks’ lack of insight, we do not think that the public and other members of the real estate profession could have confidence in the Respondents’ ability to properly manage a residential property, manage bond monies and to follow the instructions of the client.
    The nature of the conduct, whether there was a breach of any Act, Regulations, Guidelines or Codes of Conduct, and whether that breach was done knowingly
    84
    The Respondents have breached the REBA Act, RT Act and the Code on the basis set out in the Original Decision.
    85
    Specifically, as we set out above, the conduct of the Respondents breached s 68 of the REBA Act when Mr Shanks transferred the bond monies from the business trust account into his personal account; r 10 of the Code by failing to respond to Ms J within a reasonable time and failing to follow her instructions; r 6 of the Code by failing, amongst other things, to properly undertake a final inspection of the Property; and s 29(4)(b) of the RT Act by failing to lodge the bond monies with the Bond Administrator in the 14-day statutory time limit.
    [2024] WASAT 114 (S)
    Page 29
    86
    We are uncertain as to whether the breaches of the RT Act in failing to lodge the bond monies on time were done knowingly because Mr Shanks gave no explanation of the reason for the delay. We are satisfied that the remaining conduct which formed the basis for our findings in the Original Decision was deliberate and done knowingly. For example, Mr Shanks admitted to transferring the bond monies into his personal account but could not see anything wrong with doing so. He admitted to using the bond monies for cleaning and rubbish removal, despite Ms J’s express instructions that he should not do so, because he was of the view that the tenant was his client. He admitted to not following Ms J’s instructions to provide her with the Property condition and inspection report she requested because he said she was not entitled to them because she was not his client.
    Incompetence, and if so, to what level
    87
    Mr Shanks’ conduct demonstrated incompetence in several respects.
    88
    In our Original Decision we found that he did not understand who his client was, and thought he was acting for the tenant and not Ms J. It is fundamental for an agent to understand who their client is, particularly given the fundamental obligation of an agent to act in the interests of their client.
    89
    We also observed that Mr Shanks did not understand the provisions of his own Management Agreement (under which he should have provided Ms J with the documents she requested and assisted her with her insurance claim to repair the damage and neglect caused by the tenants at the end of the tenancy).
    90
    After he had managed the Property, it was in a state of damage and disrepair, with Ms J having to expend approximately $8,000 of her own money to restore the Property to a tenantable condition. She was able to claim back $6,000 on her insurance but had substantial difficulties making the insurance claim because Mr Shanks would not provide her with the property condition report showing the condition of the Property at the commencement of the tenancy, and the final inspection report. One of the purposes of a member of the public engaging an agent to manage a property is to ensure the property is being properly looked after and maintained during the tenancy, with appropriate property condition reports being prepared and maintained. Indeed, Ms J engaged Sanz Property because she did not have time to manage the Property herself due to working interstate and frequent travel overseas.
    [2024] WASAT 114 (S)
    Page 30
    91
    Mr Shanks either did not properly inspect the Property at the conclusion of the tenancy or failed to recognise the difference between fair wear and tear and the Property being in a damaged and untenantable state. As we observed in our Original Decision, in either scenario, Sanz Property and Mr Shanks failed to exercise due care, diligence, and skill. We are satisfied that this conduct is also indicative of incompetence.
    92
    Further, we are satisfied that Mr Shanks transferring trust monies into his personal account without lawful authority also displayed incompetence. He thought that the tenants had given him this authority, but as we have mentioned, his client was Ms J, and he did not have a lawful direction from her. Other behaviours also displayed incompetence, such as Mr Shanks’ evidence that once the monies were transferred into his personal account from the trust account, he allegedly paid for cleaning and rubbish removal but kept no receipt or invoices. On his own evidence, he paid cash to two persons to do some gardening at the Property.
    Was the incident isolated such that the Tribunal can be satisfied of the Respondents’ worthiness or reliability for the future
    93
    Our finding that there exists proper cause for disciplinary action against the Respondents arose from their management of the Property owned by Ms J over an approximate five-year period.
    94
    There were no other complaints before us concerning other clients and properties.
    95
    As such, although we were satisfied that s 68(4) REBA Act, r 10 and r 6 of the Code and s 29(4)(b) of the RT Act were breached, those breaches were part of the one transaction for the one client, namely the management of the Property for Ms J, albeit over an extended period. As such, we are not satisfied of the Respondents’ worthiness or reliability for the future.
    Disciplinary history
    96
    In the Commissioner’s Submissions on Penalty and Costs, the Commissioner states that the Respondent ‘has been the subject of letters of investigation, letters of warning and remedial courses, as directed by the Applicant’. It is unclear which Respondent is being referred to, but we infer it is likely to be a reference to Mr Shanks.
    97
    There is, however, minimal evidence before us about the Respondents’ disciplinary history.
    [2024] WASAT 114 (S)
    Page 31
    98
    In the evidence before us at the original hearing, there is an email dated 8 July 2019 which refers to an investigation into Sanz Property recently being completed. The email appears to be in response to a complaint made by Mr Shanks about the time taken to complete the investigation. It refers to the execution of a search warrant on 1 November 2017 during which computers were seized.6 There is no other information before us to indicate the subject matter or outcome of the investigation.
    99
    The evidence before us at the original hearing included a letter dated 8 June 2018 addressed to Mr Shanks at Sanz Property attaching a formal notice under s 69 of the Fair Trading Act 2010 (WA).7 The letter explained that the Department of Mines, Industry Regulation and Safety, Consumer Protection Division, Properties Industries Branch (Department) was ‘currently conducting an investigation into complaints regarding various activities of the Company including bond lodgements and trust accounting records’. The letter specified that the interview would examine the following alleged breaches:8
  1. The First Respondent and the Second Respondent are each reprimanded pursuant to s 103(1)(a) of the Real Estate and Business Agents Act 1978 (WA).
  2. The First Respondent and the Second Respondent are each disqualified from holding a real estate agent’s licence and a triennial certificate pursuant to s 103(1)(c) of the Real Estate and Business Agents Act 1978 (WA) for a period of two years from the date of this order.
  3. The Second Respondent is to pay a fine of $4,000 to the Commissioner, pursuant to s 103(1)(b) of the Real Estate and Business Agents Act 1978 (WA) within 28 days or within such time as otherwise agreed in writing with the Commissioner.
  4. The Second Respondent is to pay the costs of the Commissioner fixed at $6,000 pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) within 28 days or within such time as otherwise agreed in writing with the Commissioner.
    I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
    DR M EVANS-BONNER, SENIOR MEMBER
    19 MAY 2025

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