Green v Commissioner for Fair Trading, Office of Fair Trading

[2005] NSWADT 27

CITATION:	Green v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 27
DIVISION:	General Division
PARTIES:	APPLICANT Phillip James Green RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	043184
HEARING DATES:	13/10/2004
SUBMISSIONS CLOSED:	10/13/2004
DATE OF DECISION:	02/17/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Property, Stock and Business Agents Act - Real Estate agent - declaration that agent is disqualified person - Real Estate agent - declaration that agent is disqualified person
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Property, Stock and Business Agents Act 2002
CASES CITED:	Brandt v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 26
REPRESENTATION:	APPLICANT B Compton, solicitor RESPONDENT J Coss, solicitor
ORDERS:	The decision under review is affirmed

1 Mr Green has worked in the Real Estate industry since 1986 and has been licensed as a real estate agent under the Property Stock and Business Agents Act 2002 (the Act) for 4 years. He is presently working as a real estate agent in Orange and has been since 2002. He has an unblemished record in relation to his real estate licence.

2 In October 2000 Mr Green became a bankrupt. He was discharged from bankruptcy in October 2003. This was Mr Green’s second bankruptcy. He had previously been bankrupt between September 1990 and September 1993.

3 Section 14 of the Act provides that a person is eligible to hold a licence as a real estate agent only if the Commissioner for Fair Trading is satisfied that the person is not a disqualified person. Under section 16 of the Act a person is a disqualified person if they were an undischarged bankrupt at any time in the 3 years preceding the application for the licence unless the Commissioner is satisfied that the person took all reasonable steps to avoid the bankruptcy. A delegate of the Commissioner determined that he was not satisfied that Mr Green took all reasonable steps to avoid the bankruptcy and determined that Mr Green’s licence was to be cancelled from 18 June 2004 and that he was to be disqualified from holding a licence until 20 October 2006.

4 Mr Green has applied to the Tribunal for a review of that determination. The matter was heard with a similar matter in relation to a licence held by Mr Green’s partner Mr Kevin Brandt. The relevant facts are largely the same in each matter and are dealt with in the decision published as Brandt v Commissioner for Fair Trading, Office of Fair Trading [2005] NSWADT 26. The significant difference between the relevant facts in Brandt and this matter are the personal experience of the applicants. Mr Brandt has been bankrupt three times whereas Mr Green has been bankrupt twice.

5 I have also dealt with my understanding of the law in relation to matters of this kind in Brandt. I stated there that in determining whether an applicant has taken all reasonable steps to avoid the bankruptcy it is relevant to consider two issues - (i) when did the applicant know, or ought he to have known, bankruptcy was a possibility? and (ii) what steps did he take to avoid the bankruptcy?

6 The evidence in Brandt is also applicable to this matter and I have formed the same view in relation to these issues. It serves no purposes to restate my reasoning here. Suffice to say that in my view Mr Green did not take the steps that a reasonable person in his circumstances would have taken. As a previous bankrupt Mr Green would have had a heightened awareness of issues relating to bankruptcy. He should have taken and acted on financial advice and should have taken steps to enforce the sale of business agreement. In the circumstances it cannot be said that he took all reasonable steps to avoid the bankruptcy.

7 Accordingly, I agree with the Commissioner’s determination that Mr Green is a disqualified person for the purposes of the Act. In my view, the Commissioner made the correct and preferable decision. The decision under review is therefore affirmed.