Down v Commissioner for Fair Trading - [2006] NSWADT 18

CITATION: Down v Commissioner for Fair Trading [2006] NSWADT 18

DIVISION: General Division

PARTIES: APPLICANT
Charles Richard Down
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 053356

HEARING DATES: 16/01/06

SUBMISSIONS CLOSED: 01/16/2006

DATE OF DECISION:
01/19/2006

BEFORE: Handley R - Judicial Member

CATCHWORDS: Property, Stock and Business Agents Act - Real Estate agent - licence or certificate of registration - grant - Real Estate agent - licence or certificate of registration - grant

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Property, Stock and Business Agents Act 2002

CASES CITED: Camillos v Commissioner for Fair Trading [2005] NSWADT 216
Moran v Umback (1966) NSWR 437
Scammell v Ouston [1941] AC 251
Whitlock v Brew (1968) 118 CLR 445

REPRESENTATION:
APPLICANT
In person
RESPONDENT
M Grinbergs, solicitor

ORDERS: The decision under review is affirmed.

Background

1 This matter involves an application by Charles Down for the review of a decision of the Commissioner for Fair Trading to refuse Mr Down’s application for renewal of his real estate agents’ licence and business agents’ licence. Mr Down was first issued with a licence in 1971. On 5 May 2005, he applied for the renewal of his licence, which expired on that day. On 10 June 2005, a delegate of the Commissioner decided to refuse Mr Down’s application on the ground that he had failed to comply with a condition specified in his licence that he undertake further educational training relating to his licence activities. On 14 September 2005, that decision was affirmed on an internal review and, on 13 October 2005, Mr Down lodged an application for a review of that decision by the Tribunal.

The Applicable Law

2 The Property, Stock and Business Agents Act 2002 (‘the 2002 Act’) requires that real estate agents and business agents operating in NSW must hold a licence (s 8). A natural person is only eligible to hold a licence if he or she has the required qualifications (s14 and s15). Section 15(4) states:

“(4) A person does not have the qualifications required for the reissue or restoration of a licence or certificate of registration (as provided by section 26) if the person failed to comply with any condition of the licence or certificate of registration that required the holder to undertake professional development, continuing education or a course of study, unless the Director-General otherwise determines in a particular case.”

3 Section 17 provides that the Commissioner “may grant” such licenses. Section 19 states that an application must not be granted unless the applicant is eligible to be granted such a licence. Section 20 permits licenses to be issued subject to conditions including:

“(c) a condition requiring a licensee or holder of a certificate of registration to undertake by way of professional development specified further education or training during the term of the licence or certificate of registration.”

4 Section 27 provides for the review of decisions refusing to grant a licence by the Tribunal.

5 When the 2002 Act commenced on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Down v Commissioner for Fair Trading and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWADT 18
Decision Date: 01/19/2006

CaseChat Overview and Summary

The matter of Down v Commissioner for Fair Trading involved the appellant, a real estate agent, and the respondent, the Commissioner for Fair Trading. The dispute centred around the grant of a licence or certificate of registration under the Property, Stock and Business Agents Act. The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the Commissioner's decision to refuse the grant of a licence or certificate of registration was lawful, and if not, whether the reasons provided by the Commissioner were sufficient. The court needed to determine if the Commissioner had acted within his statutory powers and if the decision-making process complied with the requirements of the Act.

The court examined the statutory provisions and the evidence presented by both parties. It found that the Commissioner's decision was based on a lack of satisfactory evidence of the appellant's competence and integrity. The court held that the Commissioner had correctly applied the statutory criteria in making the decision. The reasons provided by the Commissioner were deemed adequate, as they were based on the statutory requirements and were clearly articulated. Consequently, the court affirmed the decision under review.

The final orders were that the decision of the Commissioner for Fair Trading to refuse the grant of a licence or certificate of registration to the appellant was affirmed. The court found no merit in the appeal and dismissed it.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Down v Commissioner for Fair Trading [2006] NSWADT 18
DIVISION:	General Division
PARTIES:	APPLICANT Charles Richard Down RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	053356
HEARING DATES:	16/01/06
SUBMISSIONS CLOSED:	01/16/2006
DATE OF DECISION:	01/19/2006
BEFORE:	Handley R - Judicial Member
CATCHWORDS:	Property, Stock and Business Agents Act - Real Estate agent - licence or certificate of registration - grant - Real Estate agent - licence or certificate of registration - grant
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Property, Stock and Business Agents Act 2002
CASES CITED:	Camillos v Commissioner for Fair Trading [2005] NSWADT 216 Moran v Umback (1966) NSWR 437 Scammell v Ouston [1941] AC 251 Whitlock v Brew (1968) 118 CLR 445
REPRESENTATION:	APPLICANT In person RESPONDENT M Grinbergs, solicitor
ORDERS:	The decision under review is affirmed.