Hinton v Commissioner for Fair Trading (No2) - [2006] NSWADT 299

CITATION: Hinton & Ors v Commissioner for Fair Trading (No2) [2006] NSWADT 299

DIVISION: General Division

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

FILE NUMBER: 053005, 053056 and 053057

HEARING DATES: On the papers

DATE OF DECISION:
10/19/2006

BEFORE: Molony P - Judicial Member

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

MATTER FOR DECISION: Disciplinary Action

LEGISLATION CITED: Property, Stock and Business Agents Act 2002
Fair Trading Act 1987
Property, Stock and Business Agents Regulation 2003

CASES CITED: Clyne v NSW Bar Association (1960) 104 CLR 186

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

ORDERS: 1. The decision of the Commissioner with respect to Mr Peter Hinton is affirmed; 2. The decision of the Commissioner with respect to Ms Ereca Hinton is affirmed; 3. The decision of the Commissioner with respect to Mahevi Pty Ltd is varied by removing the requirement that Mahevi Pty Ltd prepare a compliance manual. That decision is otherwise affirmed.

Introduction

1 On 30 August 2006 I deliver my decision in respect of the substantive issues in this matter in Hinton & Ors v Commissioner for Fair Trading [2006] NSWADT 257. As a result of the matters there canvassed I made the following orders:

Property Stock and Business Agents Act

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.

Property Stock and Business Agents Act

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.

i. concealed a material…

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: [2006] NSWADT 299
Decision Date: 19/10/2006

CaseChat Overview and Summary

In the case of Hinton v Commissioner for Fair Trading, the respondents, the Commissioner for Fair Trading and another, sought to appeal disciplinary determinations made against the applicants, Peter Hinton, Ereca Hinton, and Mahevi Pty Ltd, under the Property, Stock and Business Agents Act. The applicants, who are real estate agents, were found to have engaged in conduct that was unsatisfactory and unprofessional, leading to the imposition of disciplinary sanctions by the Commissioner. The dispute reached the court to determine the validity and proportionality of these sanctions.

The primary legal issues that the court had to address were whether the disciplinary actions taken against the applicants were justified based on the evidence presented and whether the penalties imposed were appropriate. Specifically, the applicants contested the findings of unsatisfactory conduct and sought to challenge the severity of the sanctions, including fines, suspensions, and the requirement for Mahevi Pty Ltd to prepare a compliance manual.

The court, after reviewing the evidence and the submissions from both parties, found that the disciplinary determinations were justified. The applicants' conduct was found to be in breach of the statutory provisions governing real estate agents. The court held that the Commissioner had correctly exercised his discretion in imposing the penalties. The penalties were deemed to be proportionate and necessary to uphold the integrity of the real estate industry. However, regarding the requirement for Mahevi Pty Ltd to prepare a compliance manual, the court found that this was not a necessary condition and varied the decision accordingly.

In conclusion, the court affirmed the decisions of the Commissioner in relation to Peter Hinton and Ereca Hinton, and while varying the requirement for a compliance manual for Mahevi Pty Ltd, it affirmed the rest of the disciplinary actions. This decision reinforces the importance of compliance with industry regulations and the authority of the Commissioner to enforce these regulations through disciplinary actions.

Orders

Orders of the court

1. The decision of the Commissioner with respect to Mr Peter Hinton is affirmed; 2. The decision of the Commissioner with respect to Ms Ereca Hinton is affirmed; 3.*The decision of the Commissioner with respect to Mahevi Pty Ltd is varied by removing the requirement that Mahevi Pty Ltd prepare a compliance manual.* That decision is otherwise affirmed.

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 (No2) [2006] NSWADT 299
DIVISION:	General Division
PARTIES:	APPLICANTS Peter Leslie Hinton and Ereca Louise Hinton RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	053005, 053056 and 053057
HEARING DATES:	On the papers
DATE OF DECISION:	10/19/2006
BEFORE:	Molony P - Judicial Member
CATCHWORDS:	Property, Stock and Business Agents Act - Real Estate Agent - disciplinary determination
MATTER FOR DECISION:	Disciplinary Action
LEGISLATION CITED:	Property, Stock and Business Agents Act 2002 Fair Trading Act 1987 Property, Stock and Business Agents Regulation 2003
CASES CITED:	Clyne v NSW Bar Association (1960) 104 CLR 186
REPRESENTATION:	Mr R Shelson instructed by Mr T Murray, Solicitor of Tress Cox Mr P I Lakatos SC instructed by Mr J Coss, Legal Officer, Office of Fair Trading
ORDERS:	1. The decision of the Commissioner with respect to Mr Peter Hinton is affirmed; 2. The decision of the Commissioner with respect to Ms Ereca Hinton is affirmed; 3. The decision of the Commissioner with respect to Mahevi Pty Ltd is varied by removing the requirement that Mahevi Pty Ltd prepare a compliance manual. That decision is otherwise affirmed.