Hards v Commissioner for Fair Trading [2026] NSWCATOD 96 | Case summary | Zoe

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Hards v Commissioner for Fair Trading [2026] NSWCATOD 96 | Case summary | Zoe

The applicant is 32 years of age. He left school at the end of year 10 and has been in the real estate industry since 2011.
The applicant held a certificate of registration under the Act between 18 May 2011 and 22 March 2024 authorising him to carry on the activities of a real estate salesperson whilst employed and under the supervision of a licensed real estate agent.
The applicant was issued a Class 1 real estate agent licence under the Act on 5 August 2019, and a Class 2 licence on 23 March 2020.
On 23 June 2021, the applicant was charged with sexual offences against five complainants, alleged to have occurred in 2017. The applicant was arraigned on indictment for eight counts on 26 August 2022. Separate trials occurred in August and September 2023, and February 2025. The applicant was found guilty of one count of sexual intercourse reckless as to consent (the of****fence), contrary to s 54(1) of the Crimes Act 1900 (ACT) (ACT Crimes Act). The applicant was found not guilty of the seven other counts.
The applicant was convicted and sentenced for the offence in the District Court of NSW on 24 April 2025. The Court exercised federal jurisdiction by operation of s 6 of the Crimes at Sea Act 1998 (Cth) because the applicant's offence had occurred on a cruise ship in the Bahamas on 15 December 2017. The victim of the offending was a person known to the applicant.
The Crown case relied on the causal relationship between the effects of intoxicating liquor and the complainant’s consent to the sexual intercourse under s 67(1) of the ACT Crimes Act. Knowledge that consent of the complainant was caused by her intoxication was deemed to be knowledge the complainant did not consent to sexual intercourse under s 67(3) of the ACT Crimes Act. These provisions have since been amended.
The applicant was sentenced to a term of imprisonment of 18 months, fully suspended, from 24 April 2025 to 23 October 2026. A good behaviour order was imposed for the term of the sentence, subject to conditions that the applicant:
not commit any offence for the term of the order;
appear before the Court if called upon to do so;
submit to supervision by NSW Community Corrections; and
complete 300 hours of community service.
The applicant subsequently resigned from his real estate agent position. He had worked as a real estate agent continually until that time, apart from between June and September 2021. The precise date when he resigned from his real estate agent position was not clear from the applicant’s evidence.
On 20 August 2025, the applicant completed his community service.
On 26 August 2025, the applicant lodged an application for renewal or restoration of his licence under the Act, in which he declared a criminal conviction and provided explanations for the offending.
On 6 October 2025 the applicant completed an EQUIPS course and in November 2025 he completed mandatory counselling through NSW Community Corrections.
When filing his application for review in this Tribunal, the applicant sought interim orders with the effect that he be granted a real estate agent's licence pending the final determination of the review proceedings. The application for interim orders was declined by Senior Member Gatland on 16 February 2026.
The ACT Crimes Act offence provision under which the applicant was convicted has subsequently been repealed and the basis for criminal responsibility under the former provision is no longer available.
In summary the applicant says in his statements that:
He has maintained his training and continuing professional development as a real estate agent at all times.
During the period between 2011 and 2021, while employed as an agent, he was personally involved in over 700 property transactions. During the period in 2023 to 2025 he was involved in approximately 100 further property transactions.
He is not aware of any client or customer ever complaining about him or Fair Trading ever communicating with him or his employer about his conduct professionally.
He is remorseful for the offence and accepts his punishment.
In January 2024, he was assaulted by someone known to one of the complainants under counts for which he was acquitted. After the assault he became fearful about going out.
The applicant has no other skills or qualifications other than in real estate, and he is no longer able to pursue his previous career as a dancer.
Without a real estate agent license, the applicant's life and ability to earn income are significantly impacted. He has been unable to secure other suitable employment.
The applicant gave evidence as follows under cross examination:
He has not apologised to the victim and there has not been any contact between them for this to be considered. He did not consider writing a letter of apology to the victim as part of the sentencing process.
Although he has benefited from the court mandated counselling he has engaged in, and is not opposed to undertaking further counselling, he does not think he needs it.
There was an objection to a line of questioning attributing disparaging comments about the victim in the Crown statement in the s 58 bundle to the applicant. The applicant gave evidence in re-examination that:
The particular comments attributed to him in the Crown statement in the s 58 bundle were not an accurate description of his words or views and he agrees that such words are not appropriate.
In response to questions from the Tribunal concerning his rehabilitation and development of insight, particularly through his counselling and courses, the applicant confirmed that:
His counselling required as per his sentencing conditions consisted of six sessions, after which the counsellor signed him off. He did not recall the name of his counsellor. When asked about what he has learned from the sessions the applicant said that he now knows the impacts alcohol can have on you and, in particular, the effects of intoxicating liquor on others.
In relation to the EQUIPS course completed as part of his sentencing conditions, it was an online group course of two hours duration each week over a 10 week period. The course was structured with activities involving different situations focussing on alcohol and substance abuse issues and required the participants’ engagement as to how they would handle each situation. This meant that the applicant heard the stories of others who were completing the course. When asked about what he learned from the course the applicant said that it reinforced how one decision can impact your life and the lives of others very seriously.
The applicant was earnest, serious and reserved while giving evidence before the Tribunal. The consequences of the offence on him personally and professionally have clearly been significant. The applicant’s evidence tended to show that since his conviction his focus has been on strict compliance with the sentencing conditions, rather than demonstrating his reformation of character beyond this.
Included with the s 58 documents were numerous customer testimonials, that spoke very positively of the applicant’s professionalism and customer service in their dealings with him during his real estate career. Additionally, a total of 17 written character references were provided:
12 of these were personal references authored by members of the applicant’s immediate family (his siblings and also the partner of his sister), close friends of the applicant or his family, and his former partner. I have included the references of the applicant’s two former dance teachers here because over a 20 year period, although initially his teachers, then his colleagues, they are now his friends. It appears that these references were prepared for sentencing in the applicant’s criminal proceedings as they are dated around April 2025, after the applicant was found guilty, and are addressed to the Court. The authors of these references stated that they were aware of the criminal charges. They included observations about how the offending behaviour was out of character for the applicant, the profound impact of the criminal proceedings on the applicant both personally and professionally, the applicant’s genuine remorse for his offending behaviour, how they have witnessed the applicant take even greater care in relationships and with alcohol since that time, and asserted confidently that the applicant will not be putting himself in a similar situation again.
The licensee and manager of an agency where the applicant worked over an 8 year period, and a former colleague in the real estate industry who has known him for over 13 years, authored two references each. Two of the refences appear to have been prepared for the criminal proceedings (dated April 2025) and two of the references were supplied in support of the applicant’s licence application (dated August 2025). It appears from the earlier references that the authors were aware of the criminal charges and the later references refer to the applicant’s conviction. The references are both personal and professional in nature. They refer to the applicant as a decent and respectful person. One observed that he is never inappropriate, especially towards women, even when drinking. It is clear from these references that despite the applicant’s conviction he is still highly regarded by responsible members of the community who know him well.
The final (undated) reference was authored by a partner of a law firm who was a previous client of the applicant and is professional in nature, stating that, in summary, the applicant was faultless to deal with and an asset to agency. It is clear from this reference, and conceded by the applicant, that the author of this reference was not aware of the criminal proceedings at all.
The authors of the references variously attest to the applicant being hardworking, honest, trustworthy, kind, reliable, a team player and a person of strong moral character (or similar). Generally testimonials only provide real value when the author discloses a full knowledge of the conviction and sentence (Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65). It is therefore appropriate for more weight to be given to those references that state the author has knowledge of the applicant’s offence, conviction and sentence. The two references provided after the applicant’s conviction, dated August 2025, are therefore of greatest weight. The references provided by authors with knowledge of the applicant’s offence and finding of guilt (but not the conviction and sentence) are of slightly less weight. The customer testimonials and the undated reference are of limited weight.
Included with the s 58 documents were the remarks of the District Court Judge on sentencing for the offence. Of note are the following findings made by the sentencing Judge as to the objective seriousness of the offence:

In Garland v Commissioner for Fair Trading [2025] NSWCATOD 28 (Garland), Senior Member Sullivan considered whether an applicant was a fit and proper person to be granted a Certificate of Registration as an Assistant Agent under the Act. The Tribunal was not satisfied the applicant was a fit and proper person, having regard to three relatively recent criminal convictions involving domestic violence committed while the applicant was in his forties, and a good behaviour bond which he was still subject to.
The applicant submitted that Garland may be distinguished from the present case because in Senior Member Sullivan’s assessment, domestic violence offences were “of great public concern”, there were multiple convictions, the offending conduct was relatively recent, could not be said to be put down to youth, and the applicant had failed to comply with counselling conditions imposed by the court (at [50]-[55]). Although the applicant in Garland was subject to a good behaviour bond (as is the case here), the applicant had not demonstrated sufficient reformation of character or rehabilitation to address the risk of reoffending to an "acceptably low level” (at [55]).
I agree with the applicant that Garland may be factually distinguished from the present case. Even so, both parties referred the Tribunal to the consideration of the authorities in Garland as the correct approach to be taken by the Tribunal in assessing the issue of fitness and propriety under the Act in the context of a person's criminal history.
In Ziems v Prothonatory of the Supreme Court of New South Wales (1957) 97 CLR 279, the High Court rejected the argument that the fact of conviction and sentence for an offence, even where a sentence of imprisonment is still being served, necessarily meant that the person (a barrister) was not a fit and proper person (to remain on the Roll of Solicitors so as to practice). It is accepted that the applicant’s conviction for the offence must be considered by the Tribunal in assessing whether he is a fit and proper person to be authorised to hold the licence, not the sentence imposed (Garland at [46]).
I have considered the authorities and find that it is the applicant's conviction for the offence of sexual intercourse reckless as to consent which must be considered by the Tribunal in assessing whether he is a fit and proper person to hold a real estate licence, not the sentence imposed. Further, the Tribunal should have regard to the circumstances of the offence and what those circumstances indicate.
The applicant cited a number of cases where the fact that the applicant was serving a good behaviour bond at the time of the time of the decision did not necessarily prevent the person from being considered a fit and proper person (Rasheed v Director General, Department of Transport [2000] NSWADT 5 and McKenzie v Director General, Department of Transport [2000] NSWADT 126).
In Lloyd v Director General, Department of Transport [2001] NSWADT 201 (Lloyd), Judicial Member Montgomery considered the relevance of an applicant’s good behaviour bond and evidence of rehabilitation to his fitness and propriety (at [63]-[65]):

The applicant disclosed his offence on his application form for the licence, demonstrating an appropriate level of candour and forthrightness to the respondent. There have been no other criminal convictions at any time before or after the offence. The applicant has the benefit of a considerable and unblemished career in the real estate industry.
The applicant expressed remorse for his conduct. The applicant said that he has developed insight into his offending behaviour and would never put himself in a situation where he may offend ever again.
I accept that the applicant is remorseful, has developed a level of insight into his offending behaviour, and has low to medium prospects of re-offending. I acknowledge that the considerable delay between the offending and date of sentencing allowed him to demonstrate significant progress in terms of his rehabilitation. The character references produced by the applicant describe him in very positive terms, both personally and professionally. I accept the character reference evidence referred to above at paragraphs [41]-[42] as being the genuinely held views of those referees and give weight to those references (subject to the limitations stated in those paragraphs) as relevant to the applicant's efforts towards rehabilitation.
These are factors strongly in support of the applicant’s case. However they must be weighed together with the matters arising from my assessment of the evidence before the Tribunal as follows:
The nature of the conviction. The offending was of a serious nature. At the time of the offending the victim was intoxicated. She was a young adult some six years younger than the applicant. The applicant was in a trusted relationship with the victim. The applicant placed the victim in a vulnerable position in taking her with him back to his cabin alone. The applicant’s digital penetration of the victim was a serious invasion of her bodily integrity. However, the sentencing Judge considered the offence to be at the lower end of the range of objective seriousness (albeit not at the lowest end). Having considered the circumstances of the offending, I concur with that assessment. Of relevance to the current proceedings, the offence did not involve dishonesty, was not deliberate or premeditated, and did not occur in the course of the applicant's practice as a licensed real estate agent or in connection with it.
The recency of the conduct. The offence occurred over eight years ago. The applicant was a significantly younger man at that time, although he was an adult in his mid-twenties.
Curren**cy of court orders. The applicant was only convicted of the offence relatively recently, on 24 April 2025. A Community Corrections Order is still in place until 23 October 2026, that requires the applicant to be of good behaviour, to appear before the Court if called upon to do so and to submit to supervision by NSW Community Corrections.
Reformation of character or rehabilitation since the conviction. The applicant has had limited time to demonstrate these matters as he was only convicted some 14 months ago. No psychological assessment report or similar objective expert evidence was provided to the Tribunal to assist it to assess the applicant’s current risk of re-offending. The applicant referred to a psychological report completed by NSW Community Corrections post sentence but he did not have a copy to provide to the Tribunal. Nevertheless, he has complied with his sentencing conditions, including community service, undertaking counselling and a relationships course. I also have regard to the two character references produced after the applicant’s conviction, dated August 2025. Although there is limited evidence of the applicant’s reformation of character or rehabilitation since the conviction, I consider that the applicant’s prospects of rehabilitation are reasonably high.
I have taken into account the applicant’s assurances, his compliance with sentencing conditions imposed and his promising steps taken towards rehabilitation. However, the serious nature of the offence (albeit at the lower range of objective seriousness), the limited time to demonstrate reformation of character and rehabilitation since the conviction, and the fact that the applicant remains under a Community Correction Order, which does not expire until October this year, are of significant weight.