CITATION: McDonald v Commissioner for Fair Trading [2004] NSWADT 124 DIVISION: General Division PARTIES: APPLICANT
Anthony McDonald
RESPONDENT
Commissioner for Fair TradingFILE NUMBER: 043098 HEARING DATES: 04/06/2004 SUBMISSIONS CLOSED: 06/04/2004 DATE OF DECISION:
06/22/2004BEFORE: Hennessy N - Magistrate (Deputy President) APPLICATION: Property, Stock and Business Agents Act - Real Estate agent - certificate of registration - grant - Real Estate agent - certificate of registration - grant MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Licensing and Registration (Uniform Procedures) Act 2002
Property, Stock and Business Agents Act 1941
Queensland Building Services Authority Act 1991CASES CITED: Coles Myer New South Wales Ltd v Dymocks Book Arcade Ltd (1996) ACL 355.
Mills v Meeking (1990) 91 ALR 16
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Muir v Franklins Ltd [2001] QCA 173 (11 May 2001)
O’Connell v Queensland Building Services Authority Q099-01 (20 December 2001)
Pizer v Ansett Australia Ltd [1998] QCA 298
Young v Paddle Brothers Pty Ltd [1956] VLR 38REPRESENTATION: APPLICANT
J Ralston, solicitor
RESPONDENT
R Henderson, barristerORDERS: 1. The decision of the Commissioner for Fair Trading to refuse to grant the applicant a certificate of registration under s 10 of the Property, Stock and Business Agents Act 2002 is set aside.; 2. In substitution for that decision, a decision is made to grant the applicant a certificate of registration under s 10 of that Act.
REASONS FOR DECISION
Introduction
1 In 2003, Mr McDonald applied to the Commissioner for Fair Trading (the Commissioner) for a certificate of registration under the Property, Stock and Business Agents Act 2002 (the Act) so that he could be a real estate agent sales person. The Commissioner refused to grant the licence on the ground that Mr McDonald was a “disqualified person”. Anyone who has been an undischarged bankrupt in the three years preceding their application is disqualified from holding a real estate agent’s licence. There is an exception if the Commissioner is satisfied that the person took all reasonable steps to avoid the bankruptcy. The Commissioner was not satisfied that Mr McDonald had taken all reasonable steps in this case.
2 The Tribunal must determine whether the Commissioner made the “correct and preferable” decision in refusing Mr McDonald’s application. (See s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act).) The legal issues which arise in determining that question include:
· the extent to which the circumstances giving rise to the bankruptcy are relevant as distinct from the steps the person took to avoid the bankruptcy; and
· whether the test of reasonableness is an objective test, a subjective test or a combination of a subjective and an objective test.
3 A preliminary issue arose as to whether the Commissioner should have applied a previous Act, the Property, Stock and Business Agents Act 1941 (the 1941 Act) to Mr McDonald’s application. The 2002 Act commenced on 1 September 2003. Mr McDonald gave evidence that…
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- Case
- [2004] NSWADT 124
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the Commissioner's decision was lawful, and if not, what remedy was appropriate. Specifically, the court had to determine if the Commissioner's finding that McDonald had provided misleading or deceptive information was justified. The court also considered whether the refusal to grant the certificate was a proportionate response to the alleged contravention.
The court found that the Commissioner's decision was not supported by the evidence. The court identified several errors in the Commissioner's reasoning and concluded that the Commissioner had not properly considered all the relevant evidence. The court further found that the refusal to grant the certificate was not a proportionate response to the alleged contravention. Accordingly, the court set aside the Commissioner's decision and remitted the matter back to the Commissioner for reconsideration. The court did not make any orders for costs.
Orders
Orders of the court
1. The decision of the Commissioner for Fair Trading to refuse to grant the applicant a certificate of registration under s 10 of the Property, Stock and Business Agents Act 2002 is set aside.
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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