PB v Commissioner for Fair Trading - [2005] NSWADT 41

CITATION: PB v Commissioner for Fair Trading [2005] NSWADT 41

DIVISION: General Division

PARTIES: APPLICANT
PB
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043309

HEARING DATES: 3 December 2004, 4 February 2005

SUBMISSIONS CLOSED: 02/04/2005

DATE OF DECISION:
02/25/2005

BEFORE: Montgomery S - Judicial Member

APPLICATION: Property, Stock and Business Agents Act - Strata managing agent - declaration that agent is disqualified person - Strata managing agent - declaration that agent is disqualified person - Property, Stock and Business Agent's Act - Strata managing agent - grant of authority - Strata managing agent - grant of authority

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Property Stock and Business Agents Act 2002

CASES CITED: Clarke v Commissioner for Fair Trading [2004] NSW ADT 273. Davidson v Commissioner for Fair Trading [2004] NSW ADT 200
McDonald v Commissioner for Fair Trading [2004] NSW ADT 124
Smart v Commissioner for Fair Trading [2005] NSWADT 33Smith v Commissioner for Fair Trading [2004] NSW ADT 182.

REPRESENTATION: APPLICANT
In person
RESPONDENT
K Grant, solicitor

ORDERS: 1.The decision under review is set aside; 2.In substitution for that decision, I find that PB is not a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.

1 PB has in the past held a strata managing agent's licence under the Property Stock and Business Agents Act 2002 (“the Act”). PB's licence expired on 26 May 2004 and he applied to the Commissioner for restoration of his licence. The Commissioner's delegate refused the application on the ground that PB is a disqualified person and as such is ineligible to hold a licence.

2 Section 8 of the Act prohibits persons from carrying on the business of real estate agent, stock and station agent, business agent or strata managing agent without being the holder of the relevant licence.

3 Section 14 of the Act provides that a person is eligible to hold a licence only if the Commissioner is satisfied that the person is not a disqualified person. PB became bankrupt in June 2000 and was discharged in July 2003. Section 16 of the Act provides that a person is a disqualified person if the person was an undischarged bankrupt at any time in the 3 years preceding the application for the licence unless the Commissioner has certified that he is satisfied that the person took all reasonable steps to avoid the bankruptcy. The Commissioner's delegate refused to certify to this satisfaction.

4 PB has applied to the Tribunal for a review of that determination.

The factual background

5 PB became bankrupt in June 2000 on the petition of the State Bank of New South Wales (“the State Bank”). He identified this bankruptcy in his application for the restoration of his licence. In response to a request from the Commissioner following receipt of his application PB set out some details relating to his bankruptcy. The Commissioner was not satisfied with the material provided…

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 41
Decision Date: 02/25/2005

CaseChat Overview and Summary

The applicant, PB, appealed a decision by the respondent, the Commissioner for Fair Trading, that found PB to be a disqualified person under section 16(1)(d) of the Property, Stock and Business Agents Act 2002. The appeal was heard in the Administrative Appeals Tribunal. The central dispute was whether PB had taken all reasonable steps to avoid bankruptcy as required by the Act.

The primary legal issue was the interpretation and application of section 16(1)(d) of the Act, specifically what constitutes "all reasonable steps" to avoid bankruptcy. The court needed to determine whether PB's actions met the statutory requirement of reasonableness in avoiding bankruptcy. This involved examining the circumstances and steps taken by PB in the context of his financial situation.

The Tribunal reviewed the evidence and submissions from both parties, focusing on the reasonableness of PB's actions in the context of his financial state. The Tribunal found that PB had indeed taken all reasonable steps to avoid bankruptcy. The decision to set aside the Commissioner's finding was based on this conclusion, and the Tribunal substituted its own finding in place of the decision under review. Consequently, PB was not deemed a disqualified person under the Act.

Orders

Orders of the court

1.The decision under review is set aside; 2.In substitution for that decision, I find that PB is not a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.

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:	PB v Commissioner for Fair Trading [2005] NSWADT 41
DIVISION:	General Division
PARTIES:	APPLICANT PB RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043309
HEARING DATES:	3 December 2004, 4 February 2005
SUBMISSIONS CLOSED:	02/04/2005
DATE OF DECISION:	02/25/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Property, Stock and Business Agents Act - Strata managing agent - declaration that agent is disqualified person - Strata managing agent - declaration that agent is disqualified person - Property, Stock and Business Agent's Act - Strata managing agent - grant of authority - Strata managing agent - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Property Stock and Business Agents Act 2002
CASES CITED:	Clarke v Commissioner for Fair Trading [2004] NSW ADT 273. Davidson v Commissioner for Fair Trading [2004] NSW ADT 200 McDonald v Commissioner for Fair Trading [2004] NSW ADT 124 Smart v Commissioner for Fair Trading [2005] NSWADT 33Smith v Commissioner for Fair Trading [2004] NSW ADT 182.
REPRESENTATION:	APPLICANT In person RESPONDENT K Grant, solicitor
ORDERS:	1.The decision under review is set aside; 2.In substitution for that decision, I find that PB is not a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.