Legal Research
Cases
Hinton v Commissioner for Fair Trading

Hinton v Commissioner for Fair Trading

Link copied

Case Copied 9 January 2006 88 min read

Contents

On this page

CITATION: Hinton & Ors v Commissioner for Fair Trading [2006] NSWADT 257

DIVISION: General Division

PARTIES: APPLICANTS
Peter Leslie Hinton
Mahevi Pty Ltd
Ereca Louise Hinton
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 053055-053057

HEARING DATES: 9 & 10/08/2005, 1/11/2005, 6 & 8/2/2006

SUBMISSIONS CLOSED: 04/11/2006

DATE OF DECISION:
09/01/2006

BEFORE: Molony P - Judicial Member

CATCHWORDS: Property, Stock and Business Agents Act - Real Estate Agent - disciplinary determination - Real Estate Agent - disciplinary determination

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Fair Trading Act 1987
Hire Purchase Act 1960
Limitation of Actions Act 1936 (SA)
Limitation of Actions Act 1969
Property, Stock and Business Agents Act 2002
Property, Stock and Business Agents Regulation 2003
Trade Practices Act 1974 (Cth)

CASES CITED: Arbest Pty Ltd v State Bank of NSW (1996) ATPR 41-481
Baker v. Sheridan [2005] NSWSC 121
Barclay Holdings (Australia) Pty Limited v British National Insurance Co Ltd (1987) 8 NSWLR 514
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Brunninghausen v. Glavanics [1999] NSWCA 199
Clark v Esanda [1984] 3 NSWLR 1
Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84
Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31
Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Fraser v NRMA Holdings Limited (1995) 55 FCR 452
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
Karina Fisheries Pty Ltd v Mitson [1990] 26 FCR 476
Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53
Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458
Mayne Nickless Ltd v Pegler [1974] 1 NSWLR 228
Metalcorp Recyclers Pty Limited v Metal Manufactures Limited [2003] NSWCA 213
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Permanent Trustee Australia Pty Ltd v FAI General Insurance Company Limited [2001] NSWCA 20, 50 NSWLR 679
R v Curran [1983] 2 VR 133
Reed v. King (1983) 145 Cal.App.3d 261, 193 Cal. Rptr.130
Rhone Poulenc Agrochimie SA v UIM Chemicals Services Pty Ltd (1986) 12 FCR 477
Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157
Sola Optical Aust Pty Ltd v. Mills (1987) 163 CLR 628
Warner v Elders Rural Finance Limited (1993) 41 FCR 399
Winterton Constructions Pty Ltd v Hambros Australia Limited (1992) 39 FCR 97 at 114

REPRESENTATION:
APPLICANT
R Sheldon instructed by T Murray, Solicitor of Tress Cox
RESPONDENT
P I Lakatos SC instructed by J Coss, Legal Officer, Office of Fair Trading

ORDERS: 1. The Tribunal finds that Mahevi Pty Ltd as licensee: i. concealed a material fact, namely the murders which occurred on the property at 6 Collins Street, and thereby induced the purchasers to enter into a contract to purchase the property, contrary to s.52(1) of the Property Stock and Business Agents Act 2002; ii. engaged in misleading or deceptive conduct, namely…

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 Hinton 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 257
Decision Date: 01/09/2006

CaseChat Overview and Summary

The case of Hinton v Commissioner for Fair Trading involves Mahevi Pty Ltd, its directors Peter Hinton and Ereca Hinton, and the Commissioner for Fair Trading. The dispute concerns allegations of misleading and deceptive conduct and breaches of professional standards by the defendants in relation to the sale of a property at 6 Collins Street. The Fair Trading Tribunal was tasked with determining whether the defendants had engaged in conduct that contravened the Property, Stock and Business Agents Act 2002 and the Fair Trading Act 1987, and whether disciplinary action should be taken against them.

The key legal issues before the Tribunal were whether the defendants had concealed a material fact about murders that occurred on the property, thereby inducing the purchasers to enter into a contract, and whether they had engaged in misleading or deceptive conduct by failing to disclose this information. The Tribunal also had to consider whether the defendants had acted honestly, fairly, and professionally, and whether Peter Hinton had failed to supervise the business of the corporation. The central issue was whether the non-disclosure of the murders constituted a material fact that would have influenced the decision of the purchasers, and whether the defendants' conduct was in breach of statutory and regulatory provisions.

The Tribunal found that the defendants had indeed concealed a material fact about the murders on the property, which influenced the purchasers to enter into the contract. This conduct was deemed to be misleading and deceptive under both the Property, Stock and Business Agents Act 2002 and the Fair Trading Act 1987. The Tribunal concluded that the defendants had failed to act honestly, fairly, and professionally, and that Peter Hinton had not adequately supervised the business. Consequently, the Tribunal ruled that disciplinary action was warranted against the defendants for their breaches of the statutory and regulatory provisions.

In light of these findings, the Tribunal ordered a directions hearing to be held on 27 September 2006 at 9:30am. The purpose of this hearing is to determine whether further proceedings are necessary to address the issue of disciplinary action and to consider any reserved costs associated with the case.

Orders

Orders of the court

1. The Tribunal finds that Mahevi Pty Ltd as licensee: i. concealed a material fact, namely the murders which occurred on the property at 6 Collins Street, and thereby induced the purchasers to enter into a contract to purchase the property, contrary to s.52(1) of the Property Stock and Business Agents Act 2002; ii. engaged in misleading or deceptive conduct, namely the non-disclosure of murders which occurred on the property, in breach of s.42 of the Fair Trading Act 1987; and iii. failed to act honestly, fairly and professionally on breach of rule 3(1) of the Rules of Conduct; 2 The Tribunal finds that Mr Peter Hinton as a Director and Licensee in charge of Mahevi Pty Ltd: i. concealed a material fact, namely the murders which occurred on the property at 6 Collin Street, and thereby induced the purchasers to enter into a contract to purchase the property, contrary to s.52(1) of the Property Stock and Business Agents Act 2002 ii. engaged in misleading or deceptive conduct, namely the non-disclosure of murders which occurred on the property, in breach of s.42 of the Fair Trading Act 1987; and iii. failed to act honestly, fairly and professionally in breach of rule 3(1) of the Rules of Conduct iv. misled or deceived a party to a transaction in breach of rule 3(2) Rules of Conduct; and v. failed to supervise the business of the corporation in breach s.32 of the Property Stock and Business Agents Act 2002; 3. The Tribunal finds that Ms Ereca Hinton as a licensee: i. concealed a material fact, namely the murders which occurred on the property at 6 Collin Street, and thereby induced the purchasers to enter into a contract to purchase the property, contrary to s.52(1) of the Property Stock and Business Agents Act 2002; ii. engaged in misleading or deceptive conduct, namely the non-disclosure of murders which occurred on the property, in breach of s.42 of the Fair Trading Act 1987; iii. failed to act honestly, fairly and professionally in breach of rule 3(1) of the Rules of Conduct; and iv. misled or deceived a party to a transaction in breach of rule 3(2) Rules of Conduct; 4. This application is listed for a directions hearing on 27 September 2006 at 9:30am to determine whether a further hearing is required on the issue of disciplinary action, and to consider reserved costs

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:	Hinton & Ors v Commissioner for Fair Trading [2006] NSWADT 257
DIVISION:	General Division
PARTIES:	APPLICANTS Peter Leslie Hinton Mahevi Pty Ltd Ereca Louise Hinton RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	053055-053057
HEARING DATES:	9 & 10/08/2005, 1/11/2005, 6 & 8/2/2006
SUBMISSIONS CLOSED:	04/11/2006
DATE OF DECISION:	09/01/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Property, Stock and Business Agents Act - Real Estate Agent - disciplinary determination - Real Estate Agent - disciplinary determination
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Fair Trading Act 1987 Hire Purchase Act 1960 Limitation of Actions Act 1936 (SA) Limitation of Actions Act 1969 Property, Stock and Business Agents Act 2002 Property, Stock and Business Agents Regulation 2003 Trade Practices Act 1974 (Cth)
CASES CITED:	Arbest Pty Ltd v State Bank of NSW (1996) ATPR 41-481 Baker v. Sheridan [2005] NSWSC 121 Barclay Holdings (Australia) Pty Limited v British National Insurance Co Ltd (1987) 8 NSWLR 514 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Brunninghausen v. Glavanics [1999] NSWCA 199 Clark v Esanda [1984] 3 NSWLR 1 Commonwealth Bank of Australia v Mehta (1991) 23 NSWLR 84 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Do Carmo v Ford Excavations Pty Ltd (1983-4) 154 CLR 234 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 Fraser v NRMA Holdings Limited (1995) 55 FCR 452 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83 Karina Fisheries Pty Ltd v Mitson [1990] 26 FCR 476 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 Mayne Nickless Ltd v Pegler [1974] 1 NSWLR 228 Metalcorp Recyclers Pty Limited v Metal Manufactures Limited [2003] NSWCA 213 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Permanent Trustee Australia Pty Ltd v FAI General Insurance Company Limited [2001] NSWCA 20, 50 NSWLR 679 R v Curran [1983] 2 VR 133 Reed v. King (1983) 145 Cal.App.3d 261, 193 Cal. Rptr.130 Rhone Poulenc Agrochimie SA v UIM Chemicals Services Pty Ltd (1986) 12 FCR 477 Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 157 Sola Optical Aust Pty Ltd v. Mills (1987) 163 CLR 628 Warner v Elders Rural Finance Limited (1993) 41 FCR 399 Winterton Constructions Pty Ltd v Hambros Australia Limited (1992) 39 FCR 97 at 114
REPRESENTATION:	APPLICANT R Sheldon instructed by T Murray, Solicitor of Tress Cox RESPONDENT P I Lakatos SC instructed by J Coss, Legal Officer, Office of Fair Trading
ORDERS:	1. The Tribunal finds that Mahevi Pty Ltd as licensee: i. concealed a material fact, namely the murders which occurred on the property at 6 Collins Street, and thereby induced the purchasers to enter into a contract to purchase the property, contrary to s.52(1) of the Property Stock and Business Agents Act 2002; ii. engaged in misleading or deceptive conduct, namely…