Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Fearon v Commissioner for Fair Trading [2025] NSWCATAD 44 Hearing dates: 24 January 2025 Date of orders: 17 February 2025 Decision date: 17 February 2025 Jurisdiction: Administrative and Equal Opportunity Division Before: J Sullivan, Senior Member Decision: (1) The decisions of the Respondent to refuse the applications to renew the real estate licences of Rebecca Fearon, and of Rebecca Fearon Pty Ltd, under the Property and Stock Agents Act 2002 (NSW) are set aside.
(2) In substitution, the applications are granted.
(3) The Respondent is to give effect to these orders as soon as possible.
Catchwords: ADMINISTRATIVE LAW – real estate licences – application for renewal – disqualified person – triviality of offence – fit and proper person
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Property and Stock Agents Act 2002 (NSW)
Property and Stock Agents Regulation 2022 (NSW)
Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner for Fair Trading, NSW Office of Fair Trading v O’Connor [2007] NSWADTAP 37
Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65
Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58
Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23
Giri v Roads and Maritime Services [2012] NSWADT 241
Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186
Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation
Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23
McDonald v Director General of Social Security (1984) 1 FCR 353
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19
Shi v Migration Agents Registration Authority [2008] HCA 31
Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Texts Cited: None cited
Category: Principal judgment Parties: Rebecca Fearon (First Applicant)
Commissioner for Fair Trading (Respondent)
Rebecca Fearon Pty Ltd (Second Applicant)Representation: Self-represented (First Applicant, and on behalf of Second Applicant)
Solicitors:
NSW Fair Trading Legal (Respondent)
File Number(s): 2024/00260713 Publication restriction: None
REASONS FOR DECISION
Introduction
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Ms Rebecca Fearon and Rebecca Fearon Pty Ltd (the Company) are the applicants in these proceedings.
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Ms Fearon was first licensed as a real estate agent in 2004, and was licensed as a “class 1” agent from 23 March 2020, under the Property and Stock Agents Act 2002 (NSW) (PSA Act). Ms Fearon is a director and licensee in charge of the Company.
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On 3 June 2024,…
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- Case
- [2025] NSWCATAD 44
- Decision Date
CaseChat Overview and Summary
The key legal issues revolved around the interpretation and application of the Property and Stock Agents Act 2002 (NSW). The primary concern was whether the Commissioner was justified in refusing to renew the licences on the basis that Fearon was a disqualified person due to a past offence, and whether the offence's triviality and Fearon's status as a fit and proper person should be considered in the decision-making process. The Court had to determine whether the Commissioner's assessment of these factors was legally sound and whether the decision was disproportionate.
The Court found that the Commissioner's decision was not supported by the evidence and was therefore unlawful. The Court held that the offence committed by Fearon was minor and did not warrant the refusal of licence renewal, especially considering her overall conduct and character. The Court also emphasised that the determination of whether a person is fit and proper should take into account all relevant factors, including the triviality of the offence. Consequently, the Court set aside the Commissioner's decisions and granted the renewal applications, directing the Commissioner to act on these orders promptly.
Orders
Orders of the court
(1) The decisions of the Respondent to refuse the applications to renew the real estate licences of Rebecca Fearon, and of Rebecca Fearon Pty Ltd, under the Property and Stock Agents Act 2002 (NSW) are set aside.
(2) In substitution, the applications are granted.
(3) The Respondent is to give effect to these orders as soon as possible.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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