Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading (GD)

Stojanovic filed an appeal against a decision of the Commissioner for Fair Trading, New South Wales Office of Fair Trading (the Commissioner) to refuse his application for a certificate of registration as a real estate salesperson under the Property, Stock and Business Agents Act 2002 (the Act). The Commissioner had found that Stojanovic was not a fit and proper person to be registered as a salesperson because of his previous deregistration and the period of good conduct required prior to re-registration. The New South Wales Civil and Administrative Tribunal (NCAT) was required to determine whether the Commissioner's decision was lawful, reasonable and just.

The primary issue before the Tribunal was whether the Commissioner had properly exercised his discretion in refusing the applicant's application for a certificate of registration. The Tribunal considered whether the Commissioner had failed to have regard to relevant considerations, including the applicant's period of good conduct prior to his deregistration, and whether the decision was otherwise unlawful. The Tribunal also considered whether the merits of the case should be reviewed, and if so, whether the applicant should be granted a certificate of registration subject to certain conditions.

The Tribunal found that the Commissioner had failed to have regard to relevant considerations in refusing the applicant's application for a certificate of registration. The Tribunal considered that the applicant's period of good conduct prior to his deregistration was a relevant consideration that the Commissioner should have taken into account. The Tribunal also found that the merits of the case should be reviewed and that the applicant should be granted a certificate of registration subject to certain conditions. The Tribunal recommended that the Commissioner grant the applicant a certificate of registration as a salesperson subject to conditions to be settled as provided below, and that this process be completed not later than 31 March 2009.

The Tribunal allowed the appeal, set aside the decision under appeal and the reviewable decision, and remitted the matter to the Commissioner for reconsideration for the purpose of granting the appellant a certificate of registration as a salesperson subject to conditions. The Tribunal recommended that the conditions take account of the conditions proposed by the appellant, and the observations made by the Appeal Panel at para [57] - [59] of these reasons. The Tribunal recommended that this process be completed not later than 31 March 2009, with a view to Mr Stojanovic's certificate of registration commencing not later than 1 April 2009.