Real estate boss in court over $150k failed payment to staff
A TRUST account set aside for employee commissions proved not to be so reliable when Ipswich real estate agent Phillip Jackwitz used the monies for his business operation.
An Ipswich court has heard the senior sales agent working for Jackwitz had to take legal action against her boss to recover nearly $150,000 in missing pay.
Phillip Grant Jackwitz, 46, pleaded guilty in the District Court at Ipswich to being a director or other office holder who intentionally/dishonestly failed to exercise powers and discharge duties in good faith.
He received a suspended jail sentence for the offending, with the court finding the father of four was unlikely to reoffend.
The Commonwealth offence, which carries a maximum penalty of five years jail, was finalised by Crown prosecutor Ben Jackson before Judge Horneman-Wren SC.
Mr Jackson said the offences occurred between February 23, 2009 and July 2, 2009 when Jackwitz was aged 37. At the time he was the principal of a Raine and Horne agency.
He said Jackwitz's lack of offending before or since was to his favour.
Mr Jackson said Jackwitz had since made full repayment to his former employee but the effect on her at the time was profound.
"She was significantly financially affected by the events of her employment in the real estate agency where she worked," he said.
"The full payment offered her a much brighter future.
"She was very upset at the financial loss. She expected to receive certain monies and didn't which caused her great distress - a sense of betrayal."
"She thought she'd been diddled. Not a legal expression but captures what she felt," Judge Hornman-Wren observed.
Judge Horneman-Wren said the amount involved in civil proceedings was $146,279 and queried whether that amount fitted the full restitution.
"No, there are no monies outstanding to her," Mr Jackson said.
He explained Jackwitz would have been entitled to have caveat with some of the finer points involving a few thousand dollars but did not, which was to his favour and "speaks of his remorse".
Mr Jackson said the woman was escorted to the bank by police to be satisfied the correct amount had gone into her account.
He said there was a verbal agreement on when the sales agent would be paid her remuneration (commissions).
It was understood that her money would be kept separate from other business funds and paid when she directed as she had other income.
In that time the agent made 60 property sales and she had an expectation of quantum that the commission - which had reached $189,140 - would be paid to her .
Some of the money was paid.
The Court heard Jackwitz's assistance helped avoid a lengthy trial.
"Directors in corporations are obligated to act in good faith and in its best interests. His offending was subjectively dishonest," Mr Jackson said.
The court accepted that there was no fraudulent activity, and the matter was an aberration by Jackwitz involving imprudent practices rather than a malicious course of conduct.
Defence barrister Scott Neaves said Jackwitz became bankrupt and lost his business and instructed that at the time of offending had become aware just how "dire" its finances were.
Prior to his bankruptcy he made a significant payment to the sales agent. Judge Horneman-Wren found his offending was not part of a greater dishonest conduct.
Jackwitz was sentenced to 12 months jail to be released immediately. He will be subject to an 18-month good behaviour bond.
A conviction was recorded.