Fearon v Commissioner for Fair Trading

[2025] NSWCATAD 44

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)
Rebecca Fearon Pty Ltd (Second Applicant)

Commissioner for Fair Trading (Respondent)

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

1. Ms Rebecca Fearon and Rebecca Fearon Pty Ltd (the Company) are the applicants in these proceedings.

2. 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.

3. On 3 June 2024, Ms Fearon applied under the PSA Act for renewal of her individual licence. On 26 June 2024, she applied for renewal of the Company’s corporation licence. Both applications were made prior to the expiry of the respective licences, and the fees were paid.

4. On 30 July 2024, the Respondent refused to renew Ms Fearon’s licence and also refused to renew the Company’s licence (together, the Decisions).

5. On 15 July 2024, Ms Fearon lodged an application for administrative review and for interim orders. Under “grounds for application” she wrote:

I urgently require my individual real estate licence to be renewed as it is my only form of income and despite my efforts have had no response from the department of fair trading of their intentions to do so.

6. On 12 August 2024, the Tribunal joined the Company as a party and the application was amended to clarify that the application for review was with respect to the Decisions. On 22 August 2024, the Tribunal ordered that the licences were to be treated as on foot until further order of the Tribunal.

Materials before the Tribunal

7. In addition to the application to the Tribunal (A1), the Applicants also filed:

1. on 19 August 2024, documents and written submissions (A2);

2. on 11 December 2024, further documents (A3); and

3. at the hearing, correspondence dated 20 January 2025 with attached documentation regarding a current offer of a contractor position as a Real Estate Sales Agent (A4).

8. The Respondent filed documents required under s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) in various tranches on 22 July 2024 (R1), 9 October 2024 (R2), and 3 December 2024 (R3); and submissions attaching further documents on 15 January 2025 (R4).

The Respondent’s Decisions

9. The Respondent decided to refuse to renew Ms Fearon’s licence on the basis that she did not meet the eligibility requirements in s 14(1) of the PSA Act because she was:

1. not a fit and proper person; and

2. a “disqualified person”.

10. The decision to refuse to renew the Company’s licence was made because the above determinations applied to a director and officer of the Company.

11. The decision that Ms Fearon was not a fit and proper person to hold a licence was made on the basis of Ms Fearon’s “criminal history” and because the delegate determined that Ms Fearon had provided NSW Fair Trading with false and misleading statements when completing the applications.

12. The decision that Ms Fearon was disqualified from holding a licence was made because the delegate determined that Ms Fearon had been convicted of an offence involving dishonesty in the last ten years, and it was not determined that the offence should be ignored under s 16(2) of the PSA Act.

Relevant Facts

13. The following facts are based on the documents before the Tribunal and Ms Fearon’s oral testimony. She was sworn in, cross-examined and the Tribunal also asked some questions.

Career background

14. Ms Fearon has worked in the industry for over 30 years, holding principal positions in various major Sydney real estate agencies.

15. She provided references from real estate colleagues (A3 p32) and clients (A3 pp3, 33) who attest to her passion and professionalism in the industry. She has won several real estate performance awards (A3 p31).

Personal circumstances

16. Ms Fearon is the primary care giver and financial support for her children. The Tribunal has had regard to documents which, in summary, reveal many years of difficult personal circumstances and a history of abuse and domestic violence.

Offences for which no convictions were recorded

17. Although there were several incidents involving police in which no conviction was recorded, the Respondent does not rely upon them in these proceedings. Ms Fearon explained these matters to the Tribunal and I find them to be personal matters which she has addressed (and continues to be seeking assistance with), and raise no concerns regarding the legal tests considered below.

The 2023 larceny conviction

18. On 7 December 2023, Ms Fearon pleaded guilty to a charge of larceny and received a “s 10A conviction with no other penalty” in Downing Centre Local Court. She was ordered to pay (and did pay) compensation to the victim of $228.

19. This was a conviction under s 10A(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) which says:

10A   Conviction with no other penalty

(1)  A court that convicts an offender may dispose of the proceedings without imposing any other penalty.

20. The background to the incident is recorded in:

1. a letter from Ms Fearon’s solicitor to the Respondent (A2, Doc 20) which set out the relevant background;

2. documents before the Court (including the facts sheet); and

3. the decision relating to the conviction.

21. In summary, in June 2021 Ms Fearon received, at her agency, a gift card for $228 from a styling company to which the agency had referred work. The gift card was not addressed to Ms Fearon. It was addressed to a former colleague who no longer worked there (who I will call “Ms X”). Ms X and her husband (Ms Fearon’s former business partner) had moved to work at a competitor agency when the gift card arrived.

22. Ms Fearon did not send the gift card on to Ms X. She took it for herself, and spent the funds for her own personal purposes. Ms X contacted the sender of the gift card in July 2021, and discovered it had been spent.

23. Around June 2023 (2 years later) Ms X attended a police station with a witness, and reported the incident.

24. This resulted in the police charging Ms Fearon for larceny and fraud. On advice from her solicitor, she pleaded guilty to larceny before the Court, and the fraud charge was dismissed.

Non-disclosure of the larceny conviction on the renewal application forms

25. The second relevant matter concerns the renewal application forms filed by Ms Fearon for herself and her Company in June 2024. It is not in dispute that she should have disclosed the larceny conviction on both forms, and she did not.

26. This raises questions regarding Ms Fearon’s fitness and propriety. The circumstances in which that occurred, and my findings, are set out below in these reasons.

consideration

The Tribunal’s approach

27. The PSA Act regulates the licencing of real estate agents in NSW. The Tribunal has jurisdiction under the ADR Act to review a decision of the Respondent to refuse to grant a licence application under section 27 of the PSA Act.

28. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. The Tribunal makes its own decision in place of the Respondent, and there is no presumption that the decision of the Respondent is correct: McDonald v Director General of Social Security (1984) 1 FCR 353 at 357. The civil standard of proof (balance of probabilities) applies in these proceedings, and there is no onus of proof on either party: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at [28] - [34].

29. Under s 38(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal isn’t restricted to material before the decision-maker; it may (and should) have regard to any relevant material before it at the time of its review: Shi v Migration Agents Registration Authority [2008] HCA 31.

Issues for determination

30. The Tribunal must decide whether the correct and preferable decision is to refuse the Applicants’ licence renewal applications.

31. The only matters in dispute are:

1. Whether Ms Fearon is a disqualified person for the purposes of the PSA Act. This requires the Tribunal to consider whether her offence should be ignored, because of the time that has passed since it was committed, or because of the triviality of the acts (or omissions) giving rise to the offence.

2. Whether Ms Fearon is a fit and proper person to hold a licence; having regard to the larceny offence, and to her non-disclosure of that offence on the licence renewal applications.

Relevant legislation

32. It is a requirement under s 8 of the PSA Act to hold a licence in order to carry on the business of an agent. Section 19 requires the Secretary to refuse to grant an application unless the applicant is eligible to be granted the licence concerned.

33. In respect of Ms Fearon’s eligibility for a licence, s 14(1) provides:

14 Eligibility for a licence or certificate of registration

(1)   An individual is eligible to hold a licence only if the Secretary is satisfied that the individual—

(a)    …

(b)   is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

(c)   …

(d)   is not a disqualified person

34. In respect of the Company’s eligibility for a licence, s 14(2) provides:

(2)  A corporation is eligible to hold a corporation licence only if the Secretary is satisfied that—

(a)  the corporation is a fit and proper person to hold a licence, and

(b)  each director of the corporation is a fit and proper person to hold a licence, and

(c)  the corporation, and each officer (within the meaning of the Corporations Act) of the corporation, is not a disqualified person, and

(d)  at least one of the directors of the corporation holds a licence that a natural person is required to hold to carry on the business that the corporation carries on or proposes to carry on, and

(e)  the corporation has paid such part of any contribution or levy payable under Part 10 (Compensation Fund) as is due and payable on the granting of the licence.

...

35. Section 16 of the PSA Act provides:

16 Disqualified persons

(1)   A person is a disqualified person for the purposes of this Act if the person—

(a)   has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or   

…

(2)   The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

…

36. Section 37 of the PSA Act provides that the regulations may prescribe rules of conduct to be observed in the course of the carrying on of business or the exercise of functions under a licence or certificate of registration. For the purpose of s 37, the applicable regulation is the Property and Stock Agents Regulation 2022 (NSW) (PSA Regulation). Schedule 1 of the PSA Regulation details the general rules of conduct applying to all agents. Clauses 2 and 3 of Schedule 1 state:

2    Fiduciary obligations

An agent must comply with the fiduciary obligations arising as an agent.

3    Honesty, fairness and professionalism

(1)   An agent must act honestly, fairly and professionally with all parties in a transaction.

(2)   An agent must not mislead or deceive any parties in negotiations or a transaction.

…

Section 16

37. Ms Fearon’s conviction for larceny is not in dispute. Section 16 of the PSA Act provides that a person is a disqualified person for the purposes of this Act if the person has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years. However, s 16(2) provides that the offence can be ignored because of either the time that has passed since the offence was committed; or because of the “triviality of the acts or omissions giving rise to the offence”.

38. Triviality and passage of time are alternatives and do not need to be established cumulatively in order for the offences to be ignored: Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79 at [47].

39. Subsections 16(1) and 16(2) of the Act have been considered in a number of cases before the Tribunal. The Appeal Panel of the Administrative Decisions Tribunal in Commissioner for Fair Trading, NSW Office of Fair Trading v O’Connor [2007] NSWADTAP 37 at [34] said:

the wording … ‘the triviality of the acts or omissions giving rise to the offence’ – invites an examination of the conduct of the person at the time the offence was committed.

40. In Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at [57] SM Eisenberg said:

The word ‘triviality’ may relate to the amount of money involved in the offences the subject of the convictions. However, it may also relate to the substance of the offences and whether the relevant acts were carried out on the spur of the moment or involved planning.

41. In Livaja v Commissioner for Fair Trading, Department of Finance, Services and Innovation [2020] NSWCATOD 17 Senior Member Dinnen stated:

15   The term ‘disqualified person’ is defined by the Act in s 16(1)(a) as being a person who “has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years...”. Whilst there is no definition of ‘offence involving dishonesty’ within the Act, the view of the Tribunal has been that its meaning must be determined by the process of statutory consideration: Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23, (‘Farah’) at [21]. The “primary object of statutory construction” is to construe a provision so that “it is consistent with the language and purpose of all the provisions of the statue”: Farah at [22], citing Project Blue Sky v The Australian Broadcasting Authority (1998) 194 CLR 355 at 69.

16   In Farah the Appeal Panel made the following observations:

[31] To be an “offence involving dishonesty” the relevant statutory provision does not have to contain the word “dishonest” or “dishonesty”. Examples of offences which come within the ordinary meaning of dishonesty offences are stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud: Barber v Law Society of NSW (No 2) [2001] NSWSC 361 at [32]. Perjury is another example. There is also clear authority that obtaining money by false or misleading statements is an offence involving dishonesty: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 at 668-669; Doja v R [2009] NSWCCA 303 at [174]-[179].

[32] In Kortman and Attorney-General’s Department [2010] AATA 1074 (22 December 2010) the Administrative Appeals Tribunal decided that an offence of obtaining a financial advantage was an offence involving dishonesty.

…

18   The disqualification under section 16(2) of the Act is a mandatory one, there being no discretionary power such as in relation to “fitness and propriety” grounds where an Applicant can provide evidence as to their character and reputation. There are only two specific grounds under which the dishonesty offence can be ignored for the purpose of determining if an Applicant should be granted a licence or certificate: because of the triviality of the acts or omissions giving rise to the offence; and because of the length of time that has passed since the offence was committed.

19   ... The period of time sufficient to warrant an exercise of the discretion to ignore an offence, must be viewed in the context of the offence for which an Applicant has been convicted: Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52], citing Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [25], and Bek v Commissioner for Fair Trading [2004] NSWADT 149 at [47]. The appropriate length of time to have passed before the discretion is exercised also depends on the triviality and nature of the acts or omissions: Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 at [21].

42. The decision in Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 (Farah) referenced above was applied by the Appeal Panel in Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23, which stated (at [34]):

34.   … the approach adopted by the Appeal Panel in Farah, from which the following propositions can be derived:

1.   An “offence involving dishonesty” does not require that the relevant statutory provision contain the word “dishonest” or “dishonesty” (examples being stealing, robbery and offences where property is gained through indirect means such as false pretences and conspiracy to defraud);

2.   an offence involving dishonesty does not permit an inquiry into the conduct or state of mind of the person concerned when committing the offence;

3.   it is the offence itself that must involve dishonesty, and it is not permissible to look behind a conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant, and those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest.

43. There is only one relevant “offence” to be considered. I find that the larceny conviction was an “offence involving dishonesty” for the purpose of s 16(1). Accordingly, Ms Fearon is a disqualified person under s 16(1) (and thereby not eligible to hold a licence: see s 14(1)(d)) unless I determine that the offence should be ignored.

Should the offence be ignored under s 16(2)?

44. I have considered all of the information before the Tribunal.

45. I am satisfied, after considering the authorities above, that the offence should be ignored having regard to the triviality of the acts or omissions (of Ms Fearon) giving rise to the offence, because I find that:

1. the acts were the taking and spending of a gift card in the amount of only $228. It is an objectively minor amount, particularly when viewed in the context of a Sydney real estate business involving large sale prices and correspondingly large commissions; and

2. the actions of Ms Fearon regarding the taking and spending of the gift card of Ms Fearon was not premeditated, nor was there a prior pattern of such behaviour; it was a one off act done on the spur of the moment (in contrast to cases such as Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95); and

3. the acts:

1. demonstrated an attitude of personal pettiness, rather than questionable business practices; having been undertaken in the context of an acrimonious business split (which clearly did not justify the acts, as evidenced by the conviction);

2. were not undertaken during negotiations or transactions with clients (contrast Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186), nor did they involve any trust account or other business funds (the card being addressed to a person, not the agency itself).

46. Accordingly, having regard to the above matters (and to the object of the Act), I determine that the offence should be ignored under s 16(2) because the acts and omissions giving rise to the offence were trivial. Ms Fearon is therefore not a “disqualified person” as defined in s 16(1) or for the purpose of s 14(1)(d) of the PSA Act.

47. Given the trivial and minor nature of the offence and the circumstances set out above, and no similar incident having occurred subsequently, I also would have found that sufficient time has passed since the relevant acts of Ms Fearon occurred in mid-2021 (being the time of the act, not the conviction), for the purpose of making a determination under s 16(2).

Fit and proper person

48. Under s 14(1)(b) of the PSA Act the Tribunal must be satisfied that Ms Fearon is a fit and proper person to hold a licence.

49. “Fit and proper person” is not defined in the PSA Act. Fitness and propriety is a question of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. Public interest considerations play a role in assessing fitness and propriety: Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 at [37].

50. The question of a person’s fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake (here, real estate activities). In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ of the High Court said:

The expression “fit and proper person”, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be 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. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

51. They went on to say at 388:

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

52. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

53. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court discussed the meaning of the term ‘fit and proper’ (at 156-7):

The expression “fit and proper person” is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. “Fit” (or “idoneus”) with respect to an office is said to involve three things, honesty knowledge and ability: “honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it”— Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances.

54. In Giri v Roads and Maritime Services [2012] NSWADT 241 at [38], the comment was made that it was the Applicant’s conviction for the offences which must be considered by the Tribunal in assessing whether he is a fit and proper person to be authorised to hold the licence, not the sentence imposed. Further, the Tribunal may have regard to the circumstances of the offence and what those circumstances indicate.

The larceny offence

55. For the reasons stated above in finding the offence to be “trivial”, I do not find that the larceny conviction, or the circumstances in which that incident occurred, results in Ms Fearon not being a “fit and proper person” today.

56. Importantly, I am also satisfied that Ms Fearon accepts that she did something wrong, she has apologised, and I also accept that her pleading guilty to the charge was made on advice from her lawyer and on the understanding (misplaced or otherwise) that it would enable her to retain her real estate licence.

57. Based on the evidence before me, I also consider that any likelihood that Ms Fearon will re-offend (or be the subject of further complaints of any similar offence) is low. I also observe the change in her circumstances and her ongoing commitments to her personal and mental health: see DP Hennessey in Saadieh v Director General, Department of Transport [1999] NSWADT 68 at [18].

The errors on the application forms

58. The Respondent submitted that the errors on the application forms, in not disclosing the larceny conviction, call into question Ms Fearon’s honesty and integrity. The Respondent submitted that Ms Fearon has not shown contrition or genuine remorse for her conduct, and that her evidence demonstrated that she lacked insight into her conduct in respect of the “dishonest” completion of the question on the form submitted to the Respondent.

59. I agree that the question of trustworthiness and honesty is central to real estate work for which Ms Fearon requests her licence. In Dosovic v Commissioner of Fair Trading [2023] NSWCATOD 58, it was said (at [45] – [47]):

45.   The PSAA establishes that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW: Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 at [44]. Section 16(1)(a) of the PSAA underscores the centrality of honesty, integrity and trustworthiness to the concept of fitness and propriety as an eligibility requirement to hold a licence or certificate.

46.   As the Tribunal noted in Maher v Department of Fair Trading [2019] NSWCATOD 21 at 124:

A licensed real estate agent carries privileges and obligations. Agents are entrusted to hold deposits on sales of properties and to receive rent on behalf of landlords. The industry is regulated to provide the public with a measure of confidence that agents follow rules in respect of trust money and conduct themselves competently, honestly and fairly.

47.   While it is true that an assistant agent must be employed and supervised by a licensed real estate agent and is not responsible for trust accounts, they do, as an employee, carry on the functions of a real estate agent and may still be involved in transactions which involve significant sums of money changing hands.

60. Before the Tribunal, Ms Fearon accepted that the forms were incorrect, but denied any intention to be dishonest or mislead the Respondent.

61. The first form was completed on 3 June 2024 for Ms Fearon personally. The second was completed on 26 June 2024. Ms Fearon’s evidence set out details of her mental health, which she expanded upon in her oral evidence. Ms Fearon’s evidence was that she had been admitted to a Sydney hospital due to her mental health issues on around 31 May 2024, and her recollection was that she stayed there for “around three weeks”. She said she never had any intention to not disclose the conviction on her licence application. She said she had been trying to deal with a lot of paperwork, and had filled it in and signed it without paying attention at the time. The Respondent asked if she was sufficiently well when discharged from the hospital to continue to work in her business, to which Ms Fearon said “yes, with assistance from my colleagues”. It was put to her that the second declaration (for the Company) post-dated her time in the hospital, to which Ms Fearon said “yes”. It was then put to her that she deliberately made the false statement on the second form because she herself had said that she was well at that time, and therefore she had knowledge that she was at risk of having her licence revoked if the conviction was disclosed. Ms Fearon denied that was the case. She said she had no such intention, and it was a mistake.

62. It was put to Ms Fearon by the Respondent that she had never apologised for the error. Ms Fearon said she was sorry, she made a mistake, and they had said themselves it was trivial. This was a reference to a document – which was before the Tribunal – authored by an employee of the Respondent who expressed a view that the offence was trivial, and there may therefore be insufficient basis to not renew Ms Fearon’s licence. Ms Fearon was understandably focused on this document which led to her expressing some frustration during her cross-examination. I have not considered that document to be of any material relevance given the absence of any concession by the Respondent in these proceedings; nor is it consistent with the decisions by the delegate of the Respondent that the Tribunal is reviewing.

63. I am satisfied on the evidence that Ms Fearon’s personal circumstances were difficult, and they impacted upon her mental state around the time that she completed the licence renewal application forms for herself and the Company. In this context, I find Ms Fearon’s evidence about her non-attention to be reliable and plausible, and find – on the balance of probabilities – that she completed the forms incorrectly due to a lack of attention, and did not intend to mislead or deceive. The Tribunal is not satisfied that there was any dishonesty, or lack of candour, involved.

64. I have had regard to the protective object of the PSA Act. I am not satisfied that Ms Fearon lacks honesty, integrity or is otherwise not of good character. There are no matters raised in respect of her professional competencies or her ability to conduct the duties required; as supported by her professional history and references from colleagues and clients.

65. I am therefore satisfied that Ms Fearon is a fit and proper person to hold a licence under s 14(1)(b) of the PSA Act.

Conclusion

66. I am satisfied that Ms Fearon:

1. is a fit and proper person to hold a licence for the purpose of s 14(1)(b); and

2. is not a disqualified person for the purpose of s 14(1)(d).

67. It follows that, as a director and officer of the Company, I am also satisfied that Ms Fearon:

1. is a fit and proper person to hold a licence for the purpose of s 14(2)(b); and

2. is not a disqualified person for the purpose of s 14(2)(c).

68. No other matters were in issue regarding the eligibility requirements of Ms Fearon or the Company under s 14(1), s 14(2) or any other provision of the PSA Act.

69. The correct and preferable decision is that Ms Fearon’s application for renewal of her individual licence, and the application for renewal of the Company’s licence, should be granted.

Orders

70. I make the following orders:

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.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 17 February 2025