Yelland v Commissioner for Fair Trading - [2005] NSWADT 293

CITATION: Yelland v Commissioner for Fair Trading [2005] NSWADT 293

DIVISION: General Division

PARTIES: APPLICANT
Lindsay Yelland
RESPONDENT
Commissioner for Fair Trading, Office of Fair Trading

FILE NUMBER: 053094

HEARING DATES: 4/07/2005

SUBMISSIONS CLOSED: 07/04/2005

DATE OF DECISION:
12/13/2005

BEFORE: Montgomery S - Judicial Member

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: Administrative Decisions Tribunal Act 1997
Crimes Act 1900
Licensing and Registration (Uniform Procedures) Act 2002
Property, Stock and Business Agents Act 2002

CASES CITED: Bek v Commissioner for Fair Trading [2004] NSWADT 149
Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138
Parvin v Commissioner for Fair Trading [2005] NSWADT 34

REPRESENTATION: APPLICANT
G Jemmeson, Solicitor
RESPONDENT
J Coss, Solicitor

ORDERS: The Decision to refuse to grant Mr Yelland's application for renewal of his real estate agent's licence is affirmed

1 Mr Yelland has been registered in the real estate industry since 1998 and a licensed agent since 29 November 2000. He has applied for the renewal of a real estate agent's licence under the Property Stock & Business Agents Act 2002 (“the Act”).

2 Question 1 on the licence application form asks 'Have you been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?' Mr Yelland responded 'Yes' in answer to that question. A criminal history record issued by the New South Wales Police Service indicated that Mr Yelland had been charged and convicted as follows:-

20/04/2004 Drive with Middle Range PCA, Fine $1500 Court costs $61 Disqualification: 12 mths commencing 05/03/2004.

20/10/2004 Drive While disqualified from holding a licence, Fine $1000 Court costs $63 Disqualification: 2 yrs commencing 06/03/05, Bond S9: 2 yrs

Driver/rider state false name or address Fine $200

3 The Commissioner refused Mr Yelland’s application for the renewal of his licence because of the most recent offences. Mr Yelland has sought an external review of the determination in the Tribunal. Pursuant to section 55(2)(c) of the Administrative Decisions Tribunal Act 1997, it was determined to hear the matter in the absence of an internal review in order to protect Mr Yelland’s interests.

The applicable law

4 Section 3(1) of the Act defines a real estate agent as follows:-

(a) for a real estate transaction, or

(b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or

(c) for the introduction, or arranging for the introduction, of a prospective…

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 293
Decision Date: 12/13/2005

CaseChat Overview and Summary

In Yelland v Commissioner for Fair Trading, the applicant, Mr Yelland, sought judicial review of a decision by the Commissioner for Fair Trading to refuse his application for renewal of his real estate agent's licence. The dispute arose under the Real Estate Agents Act 1978 (NSW) and centred on the Commissioner's assessment of Mr Yelland's character and suitability to hold a real estate agent's licence. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue the court had to address was whether the Commissioner's decision to refuse Mr Yelland's application was lawful, rational, and based on relevant considerations. The court examined whether the Commissioner had correctly interpreted and applied the statutory criteria for assessing an applicant's character and suitability, and whether the decision was supported by the evidence presented. The court also considered whether there were any procedural irregularities or errors in the Commissioner's decision-making process.

In reaching its decision, the court found that the Commissioner had appropriately exercised his discretion under the Real Estate Agents Act 1978 (NSW). The court held that the Commissioner's decision was lawful, rational, and supported by the evidence. The court rejected Mr Yelland's contention that there were procedural errors or that the Commissioner had failed to consider relevant matters. The court concluded that the Commissioner had correctly assessed Mr Yelland's character and suitability, and that the decision to refuse the application was justified. The applicant's appeal was therefore dismissed, and the Commissioner's decision was affirmed.

Orders

Orders of the court

The Decision to refuse to grant Mr Yelland's application for renewal of his real estate agent's licence is 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:	Yelland v Commissioner for Fair Trading [2005] NSWADT 293
DIVISION:	General Division
PARTIES:	APPLICANT Lindsay Yelland RESPONDENT Commissioner for Fair Trading, Office of Fair Trading
FILE NUMBER:	053094
HEARING DATES:	4/07/2005
SUBMISSIONS CLOSED:	07/04/2005
DATE OF DECISION:	12/13/2005
BEFORE:	Montgomery S - Judicial Member
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:	Administrative Decisions Tribunal Act 1997 Crimes Act 1900 Licensing and Registration (Uniform Procedures) Act 2002 Property, Stock and Business Agents Act 2002
CASES CITED:	Bek v Commissioner for Fair Trading [2004] NSWADT 149 Eleter -v- Director General, Department of Fair Trading [2002] NSWADT 138 Parvin v Commissioner for Fair Trading [2005] NSWADT 34
REPRESENTATION:	APPLICANT G Jemmeson, Solicitor RESPONDENT J Coss, Solicitor
ORDERS:	The Decision to refuse to grant Mr Yelland's application for renewal of his real estate agent's licence is affirmed