Hawa v Commissioner for Fair Trading - [2025] NSWCATAD 268

Civil and Administrative Tribunal

New South Wales

Case Name:	Hawa v Commissioner for Fair Trading
Medium Neutral Citation:	[2025] NSWCATAD 268
Hearing Date(s):	31 July 2025
Date of Orders:	31 July 2025
Decision Date:	31 July 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	(1) The decision under review is set aside (2) The decision is made that the application by Charable Hawa for a Certificate of Registration - Assistant Agent under the Property and Stock Agents Act 2002 is granted.
Catchwords:	Administrative Law – Application for certificate of registration as an assistant real estate agent - Fit and proper person.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Property and Stock Agents Act 2002
Cases Cited:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bryant v Transport for New South Wales [2024] NSWCATOD 94 Director-General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65 Grenfell v Director-General of the Department of Finance and Services [2013] NSWADT 57 Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 McDonald v Director General of Social Security (1984) 1FCR 353 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 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
Category:	Principal judgment
Parties:	Charable Hawa (Applicant) Commissioner for Fair Trading (Respondent)
Representation:	Solicitors: Applicant (self-represented) Legal, Department of Customer Service (Respondent)
File Number(s):	2025/00157842
Publication Restriction:	Nil

REASONS FOR DECISION

Introduction

This is an application by Mr Charable Hawa (“the Applicant”) for review of a decision by a delegate of the Commissioner for Fair Trading (“the Respondent”) to refuse the Applicant’s application for a certificate of registration - assistant agent under the Property and Stock Agents Act 2002 (“the Act”).
The Respondent refused the application on the basis that the Applicant is not a fit and proper person for the role of assistant agent under the Act. That refusal was affirmed on internal review.
There is no suggestion that the Applicant does not possess the necessary skills and qualifications to hold the registration under the Act. The delegate formed the view that the Applicant was not a fit and proper person to hold a certificate of registration, in accordance with section 14(3)(b) of the Act because of his recorded offences.
The Applicant has applied to the Tribunal for external review of the Respondent's decision under section 55 of the Administrative Decisions Review Act 1997 (“the ADR Act”).

Background

The Applicant’s criminal history is not in dispute. The internal review determination set out the following information in regard to offences recorded against him:

Court and Date

Court and Date

Offence

Penalty

03/04/2024 Downing Centre

Supply prohibited drug >indictable & <commercial quantity — T1

Community Correction Order: 2 years Commencing 03/04/2024

Concluding 02/04/2026

Continue…

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.

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Details

Case: [2025] NSWCATAD 268
Decision Date: 31 July 2025

CaseChat Overview and Summary

Charable Hawa applied for a certificate of registration as an assistant real estate agent under the Property and Stock Agents Act 2002. The Commissioner for Fair Trading refused to issue the certificate, finding Hawa was not a fit and proper person. Hawa sought judicial review of the decision in the Administrative Decisions (Judicial Review) Act 1977. The court had to determine whether the Commissioner's decision was unreasonable and whether Hawa was a fit and proper person to hold the certificate.

The court noted that the Act did not define "fit and proper person" but required consideration of several factors, including the applicant's integrity, competence, and reliability. The court found that the Commissioner's decision was based on Hawa's criminal record, but that record was more than ten years old and did not reflect Hawa's current character. The court also found that Hawa had demonstrated good character and was competent to perform the duties of an assistant real estate agent. The court concluded that the Commissioner's decision was unreasonable because it did not take into account all relevant factors and placed too much weight on Hawa's past criminal record.

The court set aside the decision of the Commissioner and ordered that Hawa's application for a certificate of registration as an assistant real estate agent be granted. The court found that Hawa was a fit and proper person to hold the certificate and that the Commissioner's decision was unreasonable. The court also noted that the Act required the Commissioner to consider all relevant factors when deciding whether an applicant was a fit and proper person and that the Commissioner had failed to do so in this case.

Orders

Orders of the court

(1) The decision under review is set aside

(2) The decision is made that the application by Charable Hawa for a Certificate of Registration - Assistant Agent under the Property and Stock Agents Act 2002 is granted.

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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