Hunt v Commissioner for Fair Trading

[2008] NSWADT 280

CITATION:	Hunt v Commissioner for Fair Trading [2008] NSWADT 280
DIVISION:	General Division
PARTIES:	APPLICANT Aaron Hunt RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	083171
HEARING DATES:	6 August 2008
SUBMISSIONS CLOSED:	6 August 2008
DATE OF DECISION:	6 August 2008
BEFORE:	Montgomery S - Judicial Member
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Property, Stock and Business Agents Act 2002
REPRESENTATION:	APPLICANT D Yuide, solicitor RESPONDENT V Griswold, solicitor
ORDERS:	The decision under review is affirmed.

1 Mr Hunt has held a real estate agent's licence under the Properly, Stock and Business Agents Act 2002 (“the Act”). His licence was due to expire in December 2007. In November 2007 he applied to the Office of Fair Trading (“the OFT”) for the renewal of his licence and his application was refused.

2 The trigger for the refusal was that in August 2007 Mr Hunt had been convicted of 3 counts of ‘Obtain Money by Deception’. His appeal to the District Court was dismissed. The conduct concerned failure to properly account for trust account monies being bond monies that were intended to be credited to individual landlord accounts for Mr Hunt's then employer, Angus Levitt Property Agents Pty Ltd, at Potts Point. The funds were credited to personal accounts of Mr Hunt and utilised to meet a shortfall in interest payments he was required to make for an investment property he owned jointly with his brother.

3 A delegate of Commissioner of the OFT ('the Commissioner') determined that these offences involved 'dishonesty'. Further, the delegate considered that the offence of Obtain Money By Deception is an offence with goes to the establishment of whether a person is fit and proper to hold a licence. Accordingly, a decision was made not to renew Mr Hunt's licence.

4 An internal review of the decision to refuse the renewal of his licence was carried out and the original decision was affirmed. Mr Hunt has applied to the Tribunal for a review of a decision.

5 The matter came before me for hearing on 6 August 2008. At the conclusion of the hearing I determined that the decision under review should be affirmed and I gave brief reasons for my decision. Mr Hunt has requested written reasons for my decision and these reasons are provided in response to that request.

The Applicable Law

6 Section 3(1) of the Act defines a real estate agent as follows: -

"real estate agent" means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent:

(a) for a real estate transaction, or

(b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or

(c) for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or

(d) collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or

(e) for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition.

But does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide.

7 Section 8(1)(a) of the Act provides that a person can not act as or carry on the business of a real estate agent, unless the person is the holder of a real estate agent's licence.

8 Section 14(1) of the Act provides:

14 Eligibility for licence or certificate of registration

(1) A natural person is eligible to hold a licence only if the Director-General is satisfied that the person:

(a) is at least 18 years of age, and

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

(c) has the qualifications required for the issue of the licence, and

(d) is not a disqualified person, and

(e) 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.

9 Section 16 of the 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 Director-General has determined under subsection (2) that the offence should be ignored, or

…

(2) The Director-General 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.

10 Section 19 of the Act states that an application must not be granted if the applicant is ineligible to be granted a licence.

The Commissioner’s case

11 The application for renewal of the licence was refused under section 16(1)(a) and section 16(2) of the Act as the Commissioner was of the opinion that Mr Hunt is a disqualified person in that he has committed an offence of dishonesty in the last 10 years, that insufficient time has passed since the commission of the offence, and that the offence is not trivial.

12 Ms Griswold relies on similar reasoning to that provided in relation to the internal review determinations. The delegate of the Commissioner stated:

(a) The evidence and materials obtained established that: -
(i) the applicant has convictions in New South Wales;

(ii) the convictions are for 'Obtain money etc by deception';

(iii) 'Obtain money etc by deception' is considered an offence involving dishonesty;

(iv) 'Obtain money etc by deception' is considered an offence going to the establishment of whether a person is a fit and proper person to hold a real estate agent's licence;

(v) the convictions were recorded within the last ten (10) years;

(vi) the applicant is the same person as the person named in the record, which listed the convictions;

(vii) The applicant did not declare the convictions on the application for renewal;

(b) As the applicant has the convictions outlined above and the delegate of the Commissioner has not determined that the offences should be ignored under section 16 (2) of the Act, the applicant is a disqualified person under the Act;

(c) As the applicant has the convictions outlined above and did not disclose the convictions on the application for renewal, the applicant is considered to be not a fit and proper person to hold a licence;

(d) As the applicant is a disqualified person under the Act and is considered not to be a fit and proper person to hold a real estate agent's licence, the applicant is ineligible to hold a real estate agent's licence;

(e) As the applicant is ineligible to hold a real estate agent's licence, the application is refused.

13 Ms Griswold submits that the convictions speak for themselves. She says that there was no excuse for Mr Hunt’s behaviour.

14 Ms Griswold also referred to book keeping discrepancies in a business where Mr Hunt had previously held a management role. In 2000 Mr Hunt was the licensee-in-charge for a business conducted by A L H Properties Pty Ltd. The licensee corporation was issued with a penalty notice for the non-lodgement of an audit report for the period 1 July 2000 to 30 June 2001 under section 38D(2)(b) of the Property, Stock and Business Agents Act 1941. Mr Hunt was issue with a formal caution by the delegate for the Director General of the Department of Fair Trading for the late lodgement of his statutory declaration for that period.

15 Ms Griswold also referred to the fact that Mr Hunt had admitted that he had more recently operated a business without a licence. She asserted that Mr Hunt had known that he shouldn’t have operated without a licence and yet he operated the business for a long period knowing that there was no licence.

Mr Hunt’s case

16 Mr Hunt does not dispute the convictions. He submits that sufficient time has passed since the offences were committee to permit the Tribunal to allow him to hold the licence. He says that while the convictions were recorded in August 2007, the actions that were the subject of the convictions took place in late June and early July 2005.

17 He stated that the stolen money was returned within 6 days of the offence and that in July 2005 he had personally contacted the OFT and made full disclosure of the incident. He stated that the OFT had renewed his licence in December 2005 in the knowledge that he had committed the offence. He was interviewed by an officer of the OFT in September 2006. The interviewing officer indicated to him that it was likely that the offence would be dealt with by way of a fine.

18 Mr Hunt commenced working with Elizabeth Bay Real Estate in July 2006 and he has been the licensee at that agency since then. He stated that in that period he has been inspected/audited four times. He says that he has had three very stressful years waiting for a response from OFT. His health and his relationships have suffered and he has had psychological counselling.

19 Mr Hunt contends that he has had three years punishment already and asked that he be treated leniently.

Findings

20 As I have indicated above, at the conclusion of the hearing on 6 August 2008 I determined that the decision under review should be affirmed. In reaching this conclusion I formed the view that Mr Hunt is a ‘disqualified person’ for the purposes of the Act. A disqualified person is not eligible to hold a licence: section 14(1)(d) of the Act.

21 Pursuant to section 16(1)(a) of the Act, a person who has a conviction for an offence involving dishonesty that was recorded in the last 10 years is a disqualified person. Section 16(2) of the Act allows the Commissioner some discretion in that approach that is taken to the conviction. The Commissioner may determine that an offence committed by a person should be ignored for the purposes of section 16 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.

22 Therefore, there are only two bases on which I could determine that I would ignore Mr Hunt’s offence.

23 I agree with the Commissioner’s argument that I could not ignore Mr Hunt’s offence on the basis that it is a trivial offence. In my view, accessing trust accounts for improper purposes is a very serious offence. It would be a serious offence even if the money was taken over a short period of time or if the amount of money stolen was relatively small. I do not think that it can be treated as trivial.

24 The remaining basis on which Mr Hunt’s offence could be ignored is the time that has passed since the offence was committed.

25 A period of just over three years has passed since the theft occurred in late June and early July 2005. I need to determine whether or not that is sufficient time to warrant the offence being ignored.

26 In determining that issue it is appropriate to consider Mr Hunt’s conduct in those three years. The evidence supports the Commissioner’s contention that in recent time Mr Hunt has been working as the licensee in charge in an agency operated by Elizabeth Bay Real Estate Pty Ltd in circumstances where the corporation was required to hold a licence and did not do so. As the licensee in charge, Mr Hunt had responsibility to ensure that the corporation held a licence. Mr Hunt knew that the corporation did not have a licence and he continued working in those circumstances.

27 There are serious obligations that are imposed on a licensee. Mr Hunt was either aware of those obligations and did not address them, or alternatively his knowledge is deficient. In my view, it is probable that Mr Hunt was aware of his obligations and has chosen not to act on the knowledge. That being the case, Mr Hunt should not be permitted to hold a real estate agent’s licence.

28 There may be circumstances where a period of three years since an offence of this kind would be sufficient to warrant the ignoring of the offence, but my view, this is not one of those cases.

29 Obligations are imposed on a licensee are for the protection of the public. For that reason it is important that a licensee be aware of those obligations and be able to comply with them. In these circumstances I am not confident that Mr Hunt is able to carry on a business in a way that ensures that the interests of the public are protected. Until he can do so, he should not be permitted to hold a real estate agent’s licence.

30 With the passage of more time the Commissioner may be able to be satisfied that Mr Hunt has the knowledge and ability to comply with the obligations are imposed on a licensee. He could possibly reduce the amount of that time if he were to undertake further training to update his knowledge and to focus his awareness on the importance of the licensing regime.

Order

The decision under review is affirmed.