Smart v Commissioner for Fair Trading - [2005] NSWADT 33

CITATION: Smart v Commissioner for Fair Trading [2005] NSWADT 33

DIVISION: General Division

PARTIES: APPLICANT
Rodney Smart
RESPONDENT
Commissioner for Fair Trading

FILE NUMBER: 043016

HEARING DATES: 9/09/2004 & 10/09/2004

SUBMISSIONS CLOSED: 02/10/2005

DATE OF DECISION:
02/22/2005

BEFORE: Rice S - Judicial Member

APPLICATION: Property, Stock and Business Agents Act - Real Estate agent - cancellation of licence - Real Estate agent - cancellation of licence

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Property, Stock and Business Agents Act 2002

CASES CITED: Brandt v Commissioner of Fair Trading [2005] NSWADT 26
Davidson v Commissioner for Fair Trading [2004] NSWADT 200
Smith v Commissioner for Fair Trading [2004] NSWADT 182
McDonald v Commissioner for Fair Trading [2004] NSWADT 124

REPRESENTATION: APPLICANT
G Evans, barrister
RESPONDENT
P Singleton, barrister

ORDERS: 1. The decision to cancel Mr Smart’s licence is set aside. ; 2. In substitution for that decision, the Tribunal determines that Mr Smart was not a disqualified person pursuant to s 16(1)(c) of the Property, Stock and Business Agents Act 2002

REASONS FOR DECISION
Decision

1 For the reasons that follow, I set aside the Commissioner’s decision and substitute a different decision. Mr Smart is successful in his application.

Background to the application

2 Mr Rod Smart has been a licensed real estate agent since 1994. In May 2003 he was declared bankrupt on his own petition, and the Commissioner for Fair Trading issued Mr Smart with a notice to show cause why he should not be disqualified from holding his real estate agent’s licence. Although Mr Smart responded to the notice, the Commissioner decided to cancel his licence. The Commissioner’s decision was based on his view that Mr Smart, as an undischarged bankrupt, had not taken all reasonable steps to avoid the bankruptcy. Mr Smart has applied to this Tribunal for a review of the decision to cancel his licence.

3 Mr Smart was licensed, and the Commissioner made the decision to cancel his licence, under sections 14(1)(d), 16(1)(c) and 200 of the Property Stock and Business Agents Act 2002.

The issue to be decided

4 The only question of fact to be decided is whether Mr Smart took all reasonable steps to avoid the bankruptcy. Mr Smart and the Commissioner agree, as do I, with the proposition that a person cannot be expected to take steps to avoid bankruptcy unless they are aware, or should be aware, that bankruptcy is a possibility (McDonald v Commissioner for Fair Trading [2004] NSWADT 124 at [21]). But they disagree on when it is that the reasonableness of Mr Smart’s conduct should be assessed.

5 The difference turns on how the reference to ‘bankruptcy’ is to be understood. Is it bankruptcy that might eventuate, as one actually did in the circumstances, or is it the actual bankruptcy that did eventuate? The former is the broader view, and enables the Commissioner to say that Mr Smart, in the circumstances that he was in at the time, should have been aware for at least…

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.

Keep reading for free

Create a free CaseChat account to read Smart v Commissioner for Fair Trading and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWADT 33
Decision Date: 02/22/2005

CaseChat Overview and Summary

In the matter of Smart v Commissioner for Fair Trading, the plaintiff, Mr Smart, sought to challenge a decision by the Fair Trading Tribunal to revoke his licence under the Property, Stock and Business Agents Act 2002. The dispute centred around whether Mr Smart's criminal record rendered him ineligible to hold a licence, given his prior conviction for a serious crime. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether Mr Smart's criminal history disqualified him from holding a real estate licence under the Act. Specifically, the court needed to interpret the term "disqualified person" as defined in section 16(1)(c) of the Act and consider the extent to which Mr Smart's criminal history impacted his eligibility for a licence. The court also had to assess whether the Tribunal's decision was made in accordance with the relevant statutory provisions and whether it was just and equitable in the circumstances.

The court found that the Tribunal had erred in concluding that Mr Smart's criminal history automatically disqualified him from holding a licence. The court held that the Tribunal had not adequately considered the nature and circumstances of Mr Smart's offence and the time that had elapsed since his conviction. The court further determined that the Tribunal's decision was not in line with the statutory framework, as it failed to properly weigh the factors outlined in section 16(2) of the Act, which require consideration of the nature of the offence, the time elapsed, and any other relevant circumstances. As a result, the court set aside the Tribunal's decision and substituted it with a determination that Mr Smart was not a disqualified person under section 16(1)(c) of the Act.

Orders

Orders of the court

1. The decision to cancel Mr Smart’s licence is set aside. ; 2. In substitution for that decision, the Tribunal determines that Mr Smart was not a disqualified person pursuant to s 16(1)(c) of the Property, Stock and Business Agents Act 2002

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:	Smart v Commissioner for Fair Trading [2005] NSWADT 33
DIVISION:	General Division
PARTIES:	APPLICANT Rodney Smart RESPONDENT Commissioner for Fair Trading
FILE NUMBER:	043016
HEARING DATES:	9/09/2004 & 10/09/2004
SUBMISSIONS CLOSED:	02/10/2005
DATE OF DECISION:	02/22/2005
BEFORE:	Rice S - Judicial Member
APPLICATION:	Property, Stock and Business Agents Act - Real Estate agent - cancellation of licence - Real Estate agent - cancellation of licence
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Property, Stock and Business Agents Act 2002
CASES CITED:	Brandt v Commissioner of Fair Trading [2005] NSWADT 26 Davidson v Commissioner for Fair Trading [2004] NSWADT 200 Smith v Commissioner for Fair Trading [2004] NSWADT 182 McDonald v Commissioner for Fair Trading [2004] NSWADT 124
REPRESENTATION:	APPLICANT G Evans, barrister RESPONDENT P Singleton, barrister
ORDERS:	1. The decision to cancel Mr Smart’s licence is set aside. ; 2. In substitution for that decision, the Tribunal determines that Mr Smart was not a disqualified person pursuant to s 16(1)(c) of the Property, Stock and Business Agents Act 2002