By KIERAN FINNANE
Framptons First National real estate agency received a “secret commission”, the “lion’s share” out of the first instalments paid by Alice Springs home buyers in a scheme which had Randal Carey as the builder, said Mr Carey’s lawyer Peter Maley (pictured) in the Supreme Court this morning.
Mr Carey paid Framptons an estimated $100,000, by cheque: there is “documentary evidence” of the payments, Mr Maley said. Mr Carey yesterday pleaded guilty to nine charges of deception, in falsely representing himself and his company as registered building practitioners.
The deception has had “profound and ongoing effects” for all his victims, all hard-working members of the community whose dream of building their own home turned into a “nightmare”, argued Crown prosecutor Stephen Robson when making submissions this morning on how Mr Carey should be penalised.
The benefit to Mr Carey in the agreed facts before the court was more than $1.7m.
“Where did the money go?” asked Mr Maley. He had some answers for the court: $8800 or 2.5% of the contract price on the various homes went to the real estate agents – a “secret commission”.
Mr Carey’s offending in eight out of the nine counts was aggravated by his knowledge of his deception over a period of time, argued Mr Robson. He was an undischarged bankrupt all along, his personal registration as a building practitioner had expired on December 15 2008, and Carey Builders Pty Ltd was never a registered building practitioner in the NT.
Some clients had entered into a contract with him prior to the registration expiry but most had not. He acted with “a selfish disregard for the rights and interests” of the home owners, said Mr Robson.
Yes, Mr Carey should have explained his status to the owners but he disclosed it “immediately” to Framptons who were “technically the owners’ agents”, said Mr Maley. “They knew what was happening … He treated them as his bosses.”
Mr Robson proposed that the court make compensation orders for the victims. Mr Carey’s status as an undischarged bankrupt may make that difficult, said Mr Maley – and more information is being sought from the Public Trustee before sentencing. But, said Mr Maley, Framptons agreed with the owners to monitor the progress of their homes from beginning to end. As professional real estate agents they have professional indemnity. There are “real issues” that expose them to a claim, said Mr Maley.
It was part of the agreed facts that Framptons would monitor the building work for “quality assurance”. Before Mr Maley made his submissions, Justice Jenny Blokland enquired of Mr Robson what Framptons’ awareness of the situation was. Mr Robson said the Crown doesn’t have information about what they knew. Without suggesting that anyone is in the frame, “it bears looking into”, he said.
Mr Maley said he was not trying to minimise Mr Carey’s contribution but it was part of a “systemic failure”, starting with the “conduct of the agents”, and added to by the building contracts, which lacked “a number of contractual safeguards”, and the building certifier. It all built into “a perfect storm”.
Mr Carey remains willing to provide evidence to police and to act as a witness for the Crown, said Mr Maley. The intention was that he be interviewed yesterday, however the investigating officer was not available.
Justice Blokland said she would not be ready to sentence Mr Carey (pictured at left) today.
UPDATE, 14 May 2013, 3.51pm: Any compensation payments ordered by the court would be a stand-alone debt to be serviced by Randal Carey. They would not form part of his existing bankruptcy, prosecutor Stephen Robson told Justice Jenny Blokland after he and Peter Maley for Mr Carey had spoken to the Public Trustee during the lunch adjournment.
Mr Maley outlined his client’s capacity to pay. He currently works as a truck driver out of Port Hedland in the Pilbara, driving 14-hour days. He earns almost $200,000 a year but at age 62 that is unlikely to continue for very long into the future. He calculated income left after Mr Carey meets his obligations at about $500 per week. He has some equity in a house owned by his wife, yet to be sold.
Justice Blokland said a “reasonable order of compensation” would be the “right thing” and she would take such an order into account in “mitigation of penalty”. But, if there’s no likelihood of it being paid, she wanted to know to what extent having such order might stop the victims from pursuing other avenues, as “time is running against them”. Mr Robson said he had no information about action regarding other people that may be being contemplated.
Mr Carey was remanded for sentencing until next Tuesday.
By KIERAN FINNANE