Todd v Commissioner for Fair Trading

[2004] NSWADT 278

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION:      Todd v Commissioner for Fair Trading [2004]  NSWADT 278

PARTIES:      APPLICANT
Roderick John Todd
RESPONDENT
Commissioner for Fair Trading

FILE NUMBERS:      043144

HEARING DATES:   20/09/2004

SUBMISSIONS CLOSED: 12/11/2004

DECISION DATE:     02/12/2004

BEFORE:      Montgomery S - Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Property, Stock and Business Agents Act 2002

CASES CITED:       

APPLICATION: Property, Stock and Business Agents Act - Real Estate, Business, Stock and Station Agent - cancellation of licence
Property, Stock and Business Agents Act - Real Estate, Business, Stock and Station Agent - disqualification
Real Estate, Business, Stock and Station Agent - cancellation of licence
Real Estate, Business, Stock and Station Agent - disqualification

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE:            APPLICANT
In person

RESPONDENT REPRESENTATIVE:      RESPONDENT
J Coss, legal officer

ORDERS:      I declare that Mr. Roderick John Todd is a disqualified person pursuant to section 16(l)(m) of the Property Stock and Business Agents Act 2002. Accordingly, the decision to cancel Mr. Todd’s licence was the correct and preferable decision. To that extent the decision of the Commissioner for Fair Trading is affirmed. The decision is otherwise set aside.

Reasons for Decision:

REASONS FOR DECISION

1. This is a review of a decision by the Commissioner for Fair Trading to cancel a Real Estate Agent's and Stock and Station Agent's Licence held by Mr. Todd under the Property Stock and Business Agents Act 2002 ("the Act") and to permanently disqualify Mr. Todd from holding a licence or certificate or being involved in the direction, management or conduct of a Licensee effective from 17 May 2004.

Background

1. Mr Todd was the holder of a Real Estate Agent's and Stock and Station Agent's Licence. He was a sole trader and was the registered proprietor of the business names CCR Ryans Real Estate Batlow and Batlow Real Estate.

2. In mid 2001 the Oriental Hotel at Tumut, the Royal Hotel at Adelong and the Criterion Hotel at Gundagai were on the market. On 7 August 2001 Mr. Melvin Woods arranged to pay $45,000 to Mr. Todd as a holding deposit. Mr. Woods was not the successful purchaser and sought the return of his $45,000 deposit. Mr. Todd had in fact used Mr. Woods’ deposit by transferring the monies out of his Trust Account to his General Account.

3. Mr. Todd claimed that Mr. Woods had given him a personal loan of $45,000 under a verbal agreement. Mr Woods asserted that the funds were used without his authority. Mr. Todd was unable to indicate the term, interest rate, and conditions of this loan.

4. In October 2001 Mr. Todd repaid $16,000 to Mr. Woods. Mr. Woods took action in the Local Court to recover the amounts outstanding. Judgement was made in Mr. Woods' favour and on 22 February 2002 Mr. Todd was ordered to repay $36,291.34.

5. Mr. Todd did not pay the judgement debt. Mr. Woods attempted various enforcement actions including threatened bankruptcy and subsequently made a claim on the Property Services Compensation Fund (“the Compensation Fund”). On 19 May 2003 a payment of $32,679.05 was made to Mr. Woods from the Compensation Fund.

6. On 15 January 2004 a Notice to Show Cause was served on Mr. Todd. The Notice to Show Cause was issued following information received from Mr. Woods in his claim on the Compensation Fund. Mr. Todd provided a response to the Notice to Show Cause but he did not press with any vigour his claim that Mr. Woods entered into a personal loan with him.

7. Mr. Todd’s licence was cancelled and he was permanently disqualified from holding either a licence or certificate. Mr. Todd was also permanently disqualified from being involved in the direction, management or conduct of a Licensee effective from 17 May 2004.

8. Mr. Todd applied for a review of the decision and also sought an urgent stay. The stay application came before me on 17 May 2004. The stay was not granted because it was evident that Mr. Todd was a disqualified person pursuant to section 16(l)(m) of the Act in that he has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund being $9,872.52. A hearing date was set for 30 July 2004 but the matter was adjourned and ultimately come on for hearing on 20 September 2004. At the time of hearing Mr. Todd had not paid the outstanding amount of $9,872.52 and was still a disqualified person. He gave an undertaking to repay the outstanding amount to the Compensation Fund by 22 October 2004. The hearing continued on the basis of Mr. Todd's undertaking.

Applicable legislation and evidence

1. Section 14(1)(d) of the Act provides that a natural person is eligible to hold a licence only if the Commissioner is satisfied that the person is not a disqualified person. Section 16 of the Act defines the term “Disqualified persons”. Section 16(1)(m) provides:

   “16 Disqualified persons

   (1) A person is a disqualified person for the purposes of this Act if the person:

   …

   (m) has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund and the failure continues”.

2. Pursuant to section 3 of the Act the Compensation Fund means the Property Services Compensation Fund established and maintained under the Act.

3. Section 191(d) of the Act provides that disciplinary action can be taken against a person who is or was the holder of a licence or certificate of registration on the ground that the person is a disqualified person or is otherwise not eligible under section 14 to hold a licence or certificate of registration. Pursuant to subsections 192(g) to (i) of the Act the disciplinary action that can be taken includes (g) cancel the person's licence or certificate of registration, (h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period, and (i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee.

4. Mr. Todd asserts that he had an Agreement with Mr Woods to use his $45,000 deposit for an undocumented personal loan.

5. Copies of documents contained on the Office of Fair Trading file relating to Mr. Todd’s licence were put in evidence. This material indicates the history of Mr Woods’ claim on the Compensation Fund and the subsequent payment.

6. Material contained within the Office of Fair Trading indicates that Mr Woods asserted that did not at any time agree with Mr Todd to lend the funds to him nor did he at any time give permission for the use of funds for Mr. Todd’s personal use.

7. It is common ground that at the date of hearing Mr. Todd had failed to pay an amount of $9,872.52 due as a debt to the Crown by way of recovery of an amount paid out of the Compensation Fund. There is no evidence before the Tribunal to indicate that the debt has been cleared. There is however evidence which indicates that Mr. Todd has held assets that could have been diverted to make the repayment.

8. Mr Coss filed written submissions with the Tribunal on 12 November 2004 in which he indicated that Mr. Todd had not paid the outstanding amount on 22 October 2004 nor had Mr. Todd contacted the Respondent. Mr Coss also indicated that Mr. Todd had faxed to the “Senior Legal Officer Dept Fair Trading” a copy of a personal cheque dated 9 November 2004 in the amount of $9,892.52. The Tribunal registry also received a copy of that correspondence. In his submissions Mr Coss stated that the cheque had not been received, banked and cleared.

9. Mr Coss submitted that Mr. Todd has failed to comply with his undertaking to the Tribunal and the Tribunal must therefore find that Mr. Todd is a disqualified person pursuant to section 16(l)(m) of the Act.

Findings

1. It is clear that the Act intends that persons who are disqualified persons should not hold a licence. The evidence suggests that Mr. Todd is a disqualified person pursuant to section 16(l)(m) of the Act. Accordingly he is not eligible to hold a licence. The Commissioner was therefore entitled to take disciplinary action under section 191(d) of the Act.

2. In light of this decision it is unnecessary that I address the other issues in the matter. The appropriate order is that the Commissioner’s decision be affirmed to the extent that Mr. Todd’s licence is cancelled because, pursuant to subsection 192(h) of the Act, Mr. Todd is a disqualified person.

Decision and Order

1. I declare that Mr. Roderick John Todd is a disqualified person pursuant to section 16(l)(m) of the Property Stock and Business Agents Act 2002. Accordingly, the decision to cancel Mr. Todd’s licence was the correct and preferable decision. To that extent the decision of the Commissioner for Fair Trading is affirmed. The decision is otherwise set aside.