Aria Jap International Pty Ltd V Commissioner for Fair Trading, Office of Fair Trading

[2006] NSWADT 166

CITATION:	Aria Jap International Pty Ltd v Commissioner for Fair Trading, Office of Fair Trading [2006] NSWADT 166
DIVISION:	General Division
PARTIES:	APPLICANT Aria Jap International Pty Limited RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	053208
HEARING DATES:	05/12/05
SUBMISSIONS CLOSED:	02/14/2006
DATE OF DECISION:	06/05/2006
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Motor Dealer - cancellation of licence - Motor Dealer - impose disqualification of licence - Motor Dealers Act - motor dealer - cancellation of licence - Motor Dealers Act - motor dealer - impose a condition on licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Motor Dealers Act 1974 Motor Dealers Regulation 2004
CASES CITED:	Flanagan v Commissioner of Fair Trading [2004] NSWADT 166 McDonald v Director General of Social Security (1984) 1 FCR 354 Morrie Muller (NSW) Pty Ltd & anor -v- Director General, Department of Fair Trading [2002] NSWADT 163 Tosohn Pty Ltd -v- Director General, Department of Fair Trading [2003] NSWADT 1
REPRESENTATION:	APPLICANT J O’Connor, Barrister RESPONDENT M Grinbergs, Legal Officer
ORDERS:	1. The decision of the Commissioner for Fair Trading to cancel the licence and to permanently disqualify Aria Jap International Pty Ltd from holding a licence under the Act is affirmed ; 2. The decision of the Commissioner for Fair Trading to disqualify Mr Aria for a period of six years from holding a licence under the Act or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required is set aside. In its place I make the determination that Mr Aria is disqualified for a period of two years from holding a licence under the Act or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required.

1 Aria Jap International Pty Ltd ("AJI ") was issued with a full Motor Dealers Licence ("the licence") under the Motor Dealers Act 1974 ("the Act") in May 2003. The trading address for the licence was premises located at 71 Railway Street Yennora, NSW ("the Yennora premises"). Mr Mohammad Basir Aria is the sole director of AJI. Mr Aria was born in Afghanistan and migrated to Australia in 1987. He speaks Dari, a dialect of the Persian language and has a limited command of the English language. Mr Aria worked in the motor trade from about 1992 to 2005. From about 1992 to 2003 he held various licences permitting him to operate business. He held licences to operate a wrecker business (from 1993) and as a wholesale dealer (from 1994).

2 On 8 February 2005, the Commissioner for Fair Trading ("the Commissioner ") served AJI with two notices - a suspension notice under section 64A(2) of the Fair Trading Act 1987 and a Notice to Show Cause under section 20D of the Act. AJI’s solicitor provided a response to the Commissioner who subsequently made a determination under section 20E of the Act. The application before the Tribunal relates to that determination. The Commissioner’s determination was to:

i. cancel the licence and to permanently disqualify AJI from holding a licence under the Act; and

ii. disqualify Mr Aria for a period of six years from holding a licence under the Act or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required.

3 The Applicant seeks a review of the Commissioner’s determination.

The Legislation

4 The Applicant and the Commissioner are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”).

5 Section 9 of the Act provides that a person (other than an exempted person) shall not carry on the business of a dealer at any place of business unless the person is the holder of a dealer's licence granted in respect of that place of business. Division 3 of Part 2 of the Act provides for disciplinary proceedings. Section 20D of the Act falls within Division 3 and deals with the issuing of Notices to show cause. It provides that where the Commissioner is of the opinion that there are reasonable grounds for believing that the holder of a licence may have failed to comply with the Act or the Motor Dealers Regulation 2004 ("the Regulations") or a condition or restriction to which the licence is subject or that the holder of a licence is, for any other reason, not a fit and proper person to continue to hold a licence, the Commissioner may call upon the holder to show cause why the holder should not be dealt with in accordance with the Division.

6 Section 20E of the Act also falls within Division 3 and sets out the action that the Commissioner may take in relation to a licence once satisfied that any matter referred to in section 20D(1) has been established. The Commissioner may reprimand the holder, require the holder to comply with a specified requirement, suspend the licence for a period not exceeding 12 months, disqualify the holder of the licence or another person from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required, impose a condition or restriction to which the licence shall be subject, or cancel the licence.

7 Section 21 of the Act provides that the holder of a licence to keep register and sets out the entries that are to be included in the register. These include prescribed particulars of every second-hand motor vehicle and every demonstrator motor vehicle acquired in the course of carrying on the holder’s business, and the disposal of each such vehicle. The holder of an auto-dismantler's licence must enter in their register the prescribed particulars of every motor vehicle and every prescribed part or accessory of a motor vehicle acquired in the course of carrying on their business, and the prescribed particulars of the disposal of each such vehicle and of each such part or accessory. Clause 18 of the Regulations prescribes the form of register for the purposes of section 21 of the Act.

8 Section 24 of the Act provides for the display of dealers' notices in respect of the sale of second-hand motor vehicles and the delivery of the notice to the purchaser for retention by the purchaser. Clause 18 of the Regulations prescribes the form of notices for the purposes of section 24 of the Act.

9 Section 26A of the Act provides for the marking by auto-dismantlers of prescribed parts or accessory derived from the demolished or dismantled vehicle. Clause 34 of the Regulations prescribes the manner and relevant parts identification details for the purposes of section 26A of the Act.

10 Section 27 of the Act provides in respect of the obligation on a dealer to repair defects in certain specified motor vehicles and the period in which that obligation remains in place.

11 Section 53A of the Act provides an authorised officer with powers to enter premises for the purpose of ascertaining compliance with the provisions of the Act or the Regulations, the actions that the authorised officer may take. Section 53A(3) provides for the level of cooperation that is to be given to a person exercising powers under this section.

12 Section 64A of the Fair Trading Act 1987 provides for the suspension of licences in certain specified circumstances if the Commissioner is of the opinion that there are reasonable grounds to believe that there is a danger that a person or persons may suffer significant harm, or significant loss or damage, as a result of that conduct unless action is taken urgently.

Background

13 The Yennora premises were completely destroyed by fire in August 2004. The total value of stock and premises destroyed by the fire was approximately $2,300,000 however the coverage provided by AJI’s insurance policy was only$150,000. This payment was not received until April 2005.

14 In about October 2004, Mr Aria took delivery of 16 motor vehicles that had been ordered from Japan prior to the fire. To avoid substantial storage costs, he collected the motor vehicles on their arrival in Australia and stored them at premises owned by AJI at 509 Church Street Parramatta ("the Church Street premises"). The Church Street premises were leased to a business that was owned and operated by Mr Aria's son (Mohammad Samir Aria).

15 In December 2004, Mr Aria advised the Commissioner of the circumstances of the fire at the Yennora premises, requested a copy of AJI’s licence, which had been destroyed in the fire, and informed the Commissioner that he had applied to Parramatta Council for approval to temporarily store vehicles from Japan at the Church Street premises. He also advised the Commissioner that that AJI was temporarily operating its business from the Church Street premises.

16 Authorised officers from the Office of Fair Trading (“OFT”) visited the Church Street premises on several occasions during December 2004 and January 2005 and gathered evidence that formed the basis of the Commissioner’s determination.

The Commissioner's case

17 The Commissioner relies on the brief of evidence filed in the matter and the documents contained in it. In particular the Commissioner relies on statements provided by Mr James Wright, Mr Steve Hayes and Mr Craig Mcalester. Mr Wright gave oral evidence before the Tribunal and was subjected to cross-examination. Mr Grinbergs filed written submissions and also presented oral submissions in support of the Commissioner’s position.

18 The Commissioner’s determination was founded on a number of grounds and Mr Grinbergs submits that these are relevant to the matter before the Tribunal. These grounds are:

a. Trade from premises not licensed.

b. Not keep Prescribed Register.

c. Not mark Prescribed Parts.

d. Not complete invoices.

e. Not attach Prescribed Notices.

f. Not provide statutory warranty.

g. Interfere with an authorised officer in course of duties.

h. Licensee is not a fit and proper person

19 The Commissioner says that AJI's licence concerned 71 Railway Street Yennora. AJI and Mr Aria’s son have alternated between representing that the motor vehicles at the Church Street premises were merely being ‘stored’ and representing that AJI's business was ‘temporarily operating’ from those premises, and that the vehicles are owned by AJI and Mr Aria’s son. However, the Commissioner says that by AJI's admission, and evidence gathered of the Commissioner, the vehicles were advertised and displayed for sale at the Church Street premises and they belonged to AJI. Mr Grinbergs submitted that the Commissioner cannot approve the Church Street premises until Council approves the premises for use as a motor dealer operation and/or auto-dismantler.

Not keep Prescribed Register.

20 The Commissioner says that OFT officers inspected the registers used by AJI and that those registers that were inspected did not contain sufficient particulars to satisfy the requirements of the Act and Regulations. The Commissioner’s evidence is that Mr Aria admitted that AJI's records for the Yennora premises were backed up on computer at the Church Street premises. However, the Commissioner says that he has not denied or provided any adequate explanation for the deficiencies regarding the prescribed registers.

Not mark Prescribed Parts.

21 The Commissioner’s evidence identifies a number of prescribed parts that were not marked as required by the Act and Regulations. The Commissioner says that AJI has not denied nor provided any adequate explanation for the lack of marking of prescribed parts.

Not complete invoices.

22 The Commissioner points to an invoice for a sale to a Mr Hamidan on 19 January 2005. The evidence is that the invoice did not contain sufficient particulars to satisfy the requirements of the Act and Regulations and it contained an incorrect licence number. The Commissioner says that AJI has not denied nor provided any adequate explanation for the deficiency.

Not attach Prescribed Notices.

23 The Commissioner’s evidence is that the OFT officers who attended the Church Street premises in December 2004 and January 2005 observed vehicles that were displayed for sale that did not have the prescribed notices attached as required by the Act and Regulations. The Commissioner says that AJI has not denied nor provided any adequate explanation for the lack of prescribed notices on the vehicles displayed.

Not provide statutory warranty.

24 The Commissioner says that the prescribed notices must contain details of the statutory warranty applicable to vehicles that are displayed for sale. The Commissioner is concerned that as the prescribed notices were not attached to any vehicles sold or to be sold by AJI, those vehicles may have been sold, or were to be sold, without the statutory warranty.

Interfere with an authorised officer in course of duties.

25 The Commissioner’s evidence is that the OFT officers attended the Church Street premises on 20 January 2005. They handed Mr Aria a letter referring to advice about AJI’s obligations that OFT officers had given him on 14 December 2004 and stated that OFT would take enforcement action should AJI continue to trade without the appropriate licence for the Church Street premises. The letter was addressed to premises located at 500 Church Street Parramatta. Mr Aria objected to the officers inspecting the premises, as the notice was not issued in respect of the Church Street premises. An incident arose during which Mr Aria forcible confiscated a camera belonging to one of the OFT officers. Mr Aria was subsequently charged with assault and stealing in respect of that incident however both charges were dismissed.

26 OFT officers again attended the Church Street premises on 21 January 2005 handed Mr Aria a letter in similar terms to that given to him the previous day. The significant difference between the letters was that the later one was correctly addressed to the Church Street premises.

27 OFT officers again attended the Church Street premises on 16 February 2005. On that occasion they requested that Mr Aria open the bonnets of vehicles located on the premises so that they could look at the chassis numbers. Mr Aria refused to do so. The Commissioner says that AJI has not denied nor provided any adequate explanation for its refusal to comply with the request to open the bonnets of vehicles on the premises.

Licensee is not a fit and proper person

28 The Commissioner says that Mr Aria’s conduct has been contemptuous of the OFT and secondly, that his knowledge and compliance with the Act and Regulations has been lacking. AJI has not denied nor provided any adequate explanation against the allegations.

29 In addition to the matters mentioned, the Commissioner points to AJI’s trade of motor vehicles at unlicensed premises since 30 August 2004; the failure of AJI to maintain proper records since 30 August 2004 and the defects in the backed up records in relation to the trading prior to August 2004. The Commissioner says that these defects suggest that three was a failure of AJI to maintain proper records prior to the fire at the Yennora premises. The Commissioner also says that there are some credibility issues raised as to the origin of the fire at the Yennora premises.

30 Mr Grinbergs referred to a number of cases, which he says are useful in determining the correct and preferable decision in this matter.

31 In the matter of Flanagan v Commissioner of Fair Trading [2004] NSWADT 166, I reduced Mr Flanagan's period of disqualification from 7 years to 2 years. Mr Grinbergs submits that Flanagan can be distinguished in that Mr Flanagan cooperated with the authorities and attempted to comply with the legislative requirements after his convictions. I also considered that Mr Flanagan’s conduct in receiving a stolen vehicle appeared to be out of character. Mr Grinbergs submits that those circumstances of contrition do not apply in this matter.

32 In Morrie Muller (NSW) Pty Ltd & anor -v- Director General, Department of Fair Trading [2002] NSWADT 163, Judicial Member Higgins set aside the determination to disqualify Mr Muller's licence for 5 years on the basis that many of the contraventions of proper record keeping were found to be more "technical" rather than "fundamental" breaches of the legislative scheme. The Judicial Member stated at paragraphs 137-138:

“137 The evidence indicates that many of the breaches were committed through a misunderstanding of the provisions of the Act and the Regulations and Mr Muller’s lack of supervision of the company’s business. Mr Muller now has a full understanding of the requirements of the Act and the Regulations and his responsibilities in relation thereto. While he had taken time to take the necessary steps to ensure that the company’s record keeping is in compliance with the Act and the Regulations, he has taken these steps. If he wishes to continue to be involved in a licensed motor dealer business he remains responsible for ensuring that there is full compliance.

138 In my opinion, the conduct of the company and Mr Muller warranted disciplinary measures to be taken by the Director-General under s.20E(1) of the Act. However, for the reasons stated above, in my view the conduct when viewed as a whole was not of such a magnitude to warrant disqualification under s.20E(1)(a) of the Act. There was no evidence that Mr Muller had been warned previously about the irregularities or that complaints had been made against him or the company.”

33 Mr Grinbergs submits that Morrie Muller can be distinguished in that AJI’s breach of the scheme was fundamental, and it has exhibited contempt for OFT officers. Secondly, Mr Muller had been trading as a licensed motor dealer since about 1971 and had a much more established business than AJI.

34 In Tosohn Pty Ltd -v- Director General, Department of Fair Trading [2003] NSWADT 1, I affirmed the Director General’s determination to cancel the motor dealers licence and disqualify the licensee for a period of 3 years. In that matter there was a failure by the licensee to meet various liabilities and comply with section 20D(1)(g), and the business to which the licence relates was being carried on in an unfair manner in breach of section 20D(1)(e). I stated at paragraphs 143-144:

“143 While the abovementioned are issues of importance, in my opinion, the main issue in this case is whether Tosohn’s conduct was such to warrant the cancellation of its licence and the disqualification of Tosohn and Mr. Creak from holding such a licence or being involved in a company that was the holder of such a licence and, if so, whether that remains the correct and preferable decision.

144 I agree with Mr Wilson that the test referred to in Hutchings -v- Commissioner of Police supra, provides a useful guide to the criteria that the Tribunal should consider in weighing Tosohn’s conduct. As noted, the criteria are:

whether improper conduct has occurred,

whether it is likely to occur,

whether it can be assumed that it will not occur, or

whether the general community will have confidence that it will not occur.”

35 Mr Grinbergs sought to identify a number of areas of similarity between this matter and Tosohn. He says that AJI has continued to trade in unlicensed premises, in breach of its legislative obligations after the warning provided by OFT officers in December 2004 and at risk to the public in that statutory warranties were not provided to consumers. Furthermore, AJI has exhibited contemptuous conduct towards OFT officers, which creates substantial doubt as to public confidence in his fitness and ability to trade fairly.

36 For these reasons, it is submitted that the determination of the Commissioner should be affirmed.

AJI’s case

37 Mr Aria appeared and provided evidence in support of AJI’s application. He sought to provide an alternative version of the incidents to which the Commissioner has referred and disputes the interpretation that has been presented.

38 Mr Aria agrees that OFT officers visited the Church Street premises in December 2004 and that they advised him that AJI would need permission to trade at those premises. He says that he did not object to the officers entering the premises and photographing the vehicles on that occasion. On 14 December 2004 he sent a letter to the OFT advising that the Yennora premises were destroyed by fire and that he had sought council approval to trade from the Church street premises. He also indicated that he wished to temporarily operate his business from the Church Street premises whilst he sought an alternative location. He says that the OFT did not respond to that letter.

39 In relation to the incident on 20 January 2005, Mr Aria agrees that OFT officers visited the Church Street premises but says that he was handed a letter addressed to premises located at 500 Church Street Parramatta. Mr Aria says that he objected to the officers inspecting the premises as the notice was issued in respect to a property at 500 Church Street Parramatta. He says that he repeatedly requested the officers provide him with a letter relating to the Church Street premises and as no such letter was produced he confiscated a camera from one of the officers. He says that at no time on 20 January 2005 did the OFT officers explain the basis upon which the letter was relevant to the Church Street premises. He wrote to the OFT requesting an explanation as to whether the letter related to Church Street premises but did not receive a response to his letter.

40 Mr Aria says that he did not obstruct the officers the OFT officers on 21 January 2005 when they entered the Church Street premises to inspect all the computer and business records of AJI.

41 Mr Aria says that he was not present in February 2005 when officers from the OFT attended the Church Street premises and delivered a Suspension Notice and Notice to Show Cause pursuant to the Act. He says that the Suspension Notice was undated and so on 15 February 2005 he sent a facsimile to the OFT in which he requested confirmation as to the date of the Notice of Suspension and requested a response to his letter dated 14 December 2004. He says that he did not receive a response to this letter. Mr Aria's solicitors were subsequently advised of two different dates for the Suspension Notice.

42 Mr Aria has not conducted the business of a motor dealer since he received the Notice of Cancellation dated 30 March 2005.

43 Mr Aria disputes the Commissioner’s assertion that he is not a fit and proper person to hold a motor dealers licence. He acknowledged that he should not have placed motor vehicles at the Church Street premises and regrets having done so. However, he says that he only placed vehicles at those premises as a result of the fire that destroyed the Yennora premises. He says that the vehicles that were placed at the Church street premises arrived in Australia from Japan after the fire in August 2004 and he collected the vehicles upon their arrival to avoid substantial storage costs.

44 Mr Aria says that he sought approval from Parramatta council to store the vehicles at the Church Street. Mr O’Connor submitted that Mr Aria's decision to place those vehicles at the Church Street premises is not grounds to hold that he is not a fit and proper person to hold a licence.

45 With respect to the Commissioner’s assertion that he is not a fit and proper person to hold a licence due to his actions on 20 January 2005, Mr Aria says that he believed that the officers who attended the Church street premises on 20 January 2005 did not have authority to enter the premises. Mr O’Connor submits that Mr Aria acted in circumstances where the officer's authority did not relate, or appeared not to relate, to the Church Street premises. Furthermore, Mr Aria had not received a response to his letter dated 14 December 2004. The first occasion Mr Aria was contacted by the OFT was when officers arrived unannounced on 20 January 2005 and handed him a letter addressed to and concerning unrelated premises. Mr O’Connor also points to the finding that Mr Aria was not guilty of stealing from a person in respect to the incident and the dismissal of the assault charge.

46 Mr Aria acknowledges that the way he acted on 20 January 2005 was inappropriate. He regrets having acted as he did when confronted by the officers from the OFT. He says that at all other times he has co-operated with the officers. Prior to 21 January 2005, Mr Aria had never been charged with a criminal offence. Mr Aria does not have a criminal record.

47 With respect to the Commissioner’s assertion that AJI continued to trade from the Church Street premises, Mr O’Connor submitted that Mr Aria did not receive a response to his letter dated 14 December 2004 nor any further correspondence from the OFT until 20 January 2005 when officers of the OFT arrived at the Church Street premises and handed Mr Aria a letter addressed to an unrelated property.

48 Mr Aria maintains that he kept business records of AJI at the Yennora premises in accordance with the record keeping and notice requirements of the Act. With respect to the Commissioner’s assertion that AJI failed to comply with the record keeping and notice provisions of the Act, Mr Aria says that the computer system and business records that the OFT officers inspected on 21 January 2005 was on an old backup system that was not used in the Yennora premises. Mr Aria says that AJI’s computer system was destroyed in the fire at the Yennora Street premises. The system that the OFT officers inspected did not contain the registers that are required to be kept for the purpose of the Act.

49 Mr Aria believes that AJI had substantially complied with the record keeping and notice requirements of the Act prior to the fire in August 2004. It is submitted that if Mr Aria or AJI breached the record keeping or notice provisions of the Act such breaches were not intentional and were not committed with any intention to mislead or deceive the public.

50 Mr Aria estimates that 2 motor vehicles were sold whilst the vehicles were held at the Church street premises. The remainder of the stock, approximately 14 motor vehicles, have been removed from the Church Street premises and are currently stored at Mr Aria's Pennant Hills home.

51 Mr Aria acknowledges that he was not permitted to trade at the Church Street premises. However, it is submitted that the decision to disqualify him from holding a motor dealers licence for a period of 6 years was harsh and unfair having regard to all the circumstances.

Findings and reasons

52 The issue for this Tribunal is: what is the correct and preferable decision? The Tribunal does not undertake a general review of the conduct of an agency in arriving at the decision that is the basis of the application before it. The Tribunal makes its own decision in place of the Commissioner’s, and there is no presumption that the decision of the Commissioner is correct: (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

53 There are a number of issues in this matter that give cause for concern. The evidence suggests that Mr Aria and AJI did not comply with the obligations imposed on dealers by the Act and the Regulations at least in the period they operated from the Church street premises. Contrary to various assertions that the Church street premises were only used to store vehicles that arrived in Australia following the fire at the Yennora premises, I am satisfied that the evidence shows that they were in fact trading from those premises. In fact Mr Aria conceded that 2 motor vehicles were sold whilst held there.

54 Mr Aria has been associated with the motor trade for a number of years. He ought to have been aware of his obligations under the Act and the Regulations. It may well be that his limited command of the English language has caused him difficulties in understanding his obligations but this does not alter the fact that he is required to comply with them. There are sound public policy and consumer protection reasons for doing so.

55 While I agree with Mr Aria’s view that there was a degree of inaccuracy in the material provided by the OFT and tardiness in not responding to correspondence, I do not accept Mr Aria’s explanation regarding the events of 20 January 2005. A simple consideration of the letter that is said to have caused Mr Aria to doubt that the officers who attended the Church street premises on 20 January 2005 had authority to enter the premises indicates that the letter was addressed to:

“Mr Mohammad Basir Aria

Aria Jap International Pty Ltd

500 Church St

North Parramatta NSW 2151”

56 There is no doubt that the street number identified in the letter was wrong. However, the letter was not the basis on which the OFT officers gained authority to access the premises. That authority is pursuant to the Act. The evidence shows that the OFT officers who attended the Church street premises on 20 January 2005 identified themselves and provided their authority to obtain access. In any event, the letter referred to attendance of OFT officers at ‘your premises’ on 14 December 2004 and advice given by those officers. Mr Aria should have been in no doubt that OFT officers had attended AJI’s premises on 14 December 2004 or that he had been given some advice.

57 The evidence shows that a correctly addressed letter was given to Mr Aria on 21 January 2005. The letter was in similar terms to that given to him the previous day. It clearly put Mr Aria and AJI on notice that OFT would take enforcement action if they continued to trade without holding the appropriate licence for the Church Street premises. Nevertheless, they continued to trade at least until 16 February 2005. On that date OFT officers again attended the Church Street premises and Mr Aria refused to cooperate by opening the bonnets of vehicles located on the premises so that the officers could check the chassis numbers.

58 Notwithstanding the fact that the charges against Mr Aria were dismissed, the evidence before me establishes that he interfered with an authorised officer in course of their duties in breach of the Act.

59 I agree with the Commissioner’s assertion that AJI has not provided any adequate explanation for its lack of cooperation. I also find the explanations given for the failure to keep the prescribed register, to mark prescribed parts, complete invoices, or attach prescribed notices either implausible or in adequate. With one exception, I am satisfied that the alleged breaches of the Act and Regulations have occurred. The exception is that I am not satisfied that vehicles were sold without the statutory warranty.

60 I note that each of the parties made references to the cases already identified. In my view each of those cases can be distinguished on their facts however I agree with Mr Grinbergs in that the matter of Tosohn is useful as it provides a useful guide to the criteria that the Tribunal should consider in weighing the relevant conduct.

61 In the circumstances of this case I am satisfied that improper conduct has occurred. I am also concerned that it cannot be assumed that improper conduct will not occur in the future because I have doubt that Mr Aria has a clear understanding of his obligations. I agree with the Commissioner’s view that Mr Aria’s conduct has been contemptuous of the OFT and that his knowledge and compliance with the Act and Regulations has been lacking. In the circumstances the general community could not have confidence that it will not occur.

62 Nevertheless, I agree with Mr O’Connor’s submission that that the decision to disqualify Mr Aria from holding a motor dealers licence for a period of 6 years was harsh and unfair having regard to all the circumstances. A comparison has been made with the decision in Tosohn. In that matter Mr Creak was disqualified for a period of three years. However in my view, Mr Creak’s conduct was far more serious than that of Mr Aria. Further, while Mr Creak continued to deny, minimise and deflect responsibility for his conduct, Mr Aria acknowledges that the way he acted was inappropriate and expressed regret at having acted as he did.

63 In my view, the Commissioner’s decision insofar as it relates to AJI is the correct and preferable decision. It should therefore be affirmed. With respect to the determination to disqualify Mr Aria, it is my view that the correct and preferable decision is that the period of disqualification should be reduced to two years.

Orders

1. The decision of the Commissioner for Fair Trading to cancel the licence and to permanently disqualify Aria Jap International Pty Ltd from holding a licence under the Act is affirmed

2. The decision of the Commissioner for Fair Trading to disqualify Mr Aria for a period of six years from holding a licence under the Act or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required is set aside. In its place I make the determination that Mr Aria is disqualified for a period of two years from holding a licence under the Act or from being concerned in the direction, management or conduct of a business for the carrying on of which a licence is required.