HJG v Commissioner for Fair Trading [2025] NSWCATOD 143;

1. The Applicant, HJG held a property licence under the Property and Stock Agents Act 2002 (PSA Act) from 24 January 2018 until it expired on 23 January 2024, latterly, as a Class 1 Agent. On 23 January 2025, the Applicant applied for a Class 1 licence under the PSA Act, but his application was refused. That decision was affirmed on internal review. The Applicant now seeks review by this Tribunal.

1. Section 14 of the PSA Act sets out the eligibility requirements for a licence and provides, relevantly:

(1) An individual is eligible to hold a licence only if the Secretary is satisfied that the individual -

...

(b) is a fit and proper person to hold a licence and each person with whom the individual is in partnership in connection with the business concerned is a fit and proper person to hold a licence, and

...

(d) is not a disqualified person, and

...

1. Section 16 of the PSA Act defines disqualified persons, relevantly:

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

(a) has a conviction in New South Wales or elsewhere for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored

The Secretary may determine that an offence committed by a person should be ignored for the purposes of this section because of the time that has passed since the offence was committed or because of the triviality of the acts or omissions giving rise to the offence.

(1) This section applies to -

(a) any money received by a licensee or registered person on behalf of any person in respect of any transaction in the licensee's or registered person's capacity as a licensee or registered person, or any part of any such money, and

(b) any money so received that is held by the licensee or registered person as a stakeholder or in trust pending the completion of any transaction.

(2) If the licensee or registered person fraudulently converts the money or any part of that money to his or her own use or to the use of any other person, the licensee or registered person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years.

1. The Applicant provided detailed submissions, gave evidence and was cross examined. I also asked him questions.
2. The Applicant also provided a reference from Professor Michael Brydon OAM, the former Head of Paediatrics at Westmead Children's Hospital and an old family friend.
3. The Respondent provided material in accordance with s 58 of the Administrative Decisions Review Act 1997 (ADR Act) and detailed submissions.

1. Section 63 of the ADR Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that a tribunal is not restricted to a consideration of the material that was before the decision-maker, but may have regard to any relevant material before it at the time of the review: Shi v Migration Agents Registration Authority  [2008] HCA 31.  Under s 28(2) of the Civil and Administrative Tribunal Act 2013 (CAT Act) the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the CAT Act. The Tribunal makes its own decision in place of the Commissioner's, and there is no presumption that the decision of the Commissioner is correct: McDonald v Director General of Social Security (1984) 1FCR 353 at 357. The standard of proof that applies in these proceedings is the civil standard, that is, on the balance of probabilities. There is no onus of proof: Nakad v Commissioner of Police, New South Wales Police Force  [2014] NSWCATAP 10.

1. Between 5 December 2018 and 6 July 2022, the Applicant was the licensee in charge of a real estate agency (the Agency). On 16 February 2024, he was convicted of an offence under ss 218(2) and 211(2) of the PSA Act of fraudulently converting money that was received by him as licensee.
2. On 23 January 2025, when he applied for a Class 1 property individual licence under the PSA Act, he wrote "no" in answer to the question: "Have you ever been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?" in circumstances where he knew this was not the case.

1. The substantive issue before the Tribunal is whether the Applicant is a disqualified person under the PSA Act and, if so, whether that can be ignored, and whether he is a fit and proper person to hold a real estate licence.

Is the Applicant a disqualified person: s 16(1) of the PSA Act?

1. The Applicant was convicted of a dishonesty offence which included an element of fraud: s 211(2) of the PSA Act. He was sentenced to an 18-month Community Corrections Order (CCO), which expired on 15 August 2025. There was no dispute that the Applicant has a conviction for an offence involving dishonesty that was recorded in the last 10 years. He is therefore a disqualified person for the purposes of the PSA Act.

Should the offence be ignored because of the time that has passed since the offence was committed or because of the triviality of the acts giving rise to the offence?: s 16(2) of the PSA Act.

1. Passage of time and triviality and are alternatives and do not need to be established cumulatively in order for the offences to be ignored: Paul Voutef v Commissioner for Fair Trading [2023] NSWCATOD 79 at [47]. Having said that, the period of time sufficient to warrant an exercise of the discretion to ignore an offence must be viewed in the context of the offence for which an Applicant has been convicted: Gambino v Commissioner for NSW Fair Trading [2014] NSWCATOD 135 at [52], citing Wilson v Commissioner for NSW Fair Trading [2014] NSWCATOD 79 at [25], and Bek v Commissioner for Fair Trading [2004] NSWADT 149 (Bek) at [47]. The appropriate length of time to have passed before the discretion is exercised depends on the triviality and nature of the acts or omissions: Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186 (Hunt) at [21].
2. In Bek JM Montgomery held [at 47]:

... I note that in Aguerre almost nine years that had passed since the offence was committed justified the exercise of the Tribunal's discretion to ignore the offence. However in Eleter the period of four and a half years without incident after an offence was not considered a sufficient amount of lime given the nature of the offence. It is my view that the period of time that is necessary to have passed must be linked to the offence for which an applicant has been convicted.

1. In Bek, the applicant was convicted of "Driver/Rider State False Name or Address" and was fined $300, JM Montgomery considered that the offence was "at the lower end of the scale" and that "given the nature of Mr Bek's offence, three and a half years is sufficient" to warrant ignoring the offence: at [46]-[47]. See also, more recently, Jones v Commissioner for Fair Trading [2023] NSWCATOD 169.
2. In Hunt JM Higgins considered the offences of obtaining money by deception involving the amount of $6,957.08 as serious. Hunt was fined and placed on a 12-month good behaviour bond. He submitted that the acts and omissions giving rise to his convictions occurred within several days of each other and almost 5 years had passed since they occurred. JM Higgins held [at 21]:

In light of my finding as to the seriousness of Mr Hunt's conduct, in my opinion, a period of 5 years since the offences were committed is not sufficient time so as to make a determination that the offences should be ignored. That determination, in my opinion cannot be made for another 3 years; namely 8 years from the date the offences were committed. This period of time, in my opinion, is the appropriate time given the nature of Mr Hunt's offending conduct. Had the offences not occurred in the course of the licensed activity for which he now seeks an authority, I may have come to a different view.

1. Here, the Applicant's offending occurred in early 2022, now only 3.5 years ago. I do not consider that the time that has passed since the offence is sufficient, at this time, to warrant the offence being ignored, particularly given the amount of money involved and that the offence related directly to the Applicant's role as a real estate agent.
2. The offence for which the Applicant was convicted involved a significant breach of trust committed fraudulently: between 10 and 18 February 2022 over $65,000 was transferred from the Agency's trust account in 10 transactions. The offence is objectively serious as reflected in the maximum penalty that can be imposed: 10 years imprisonment, with the Local Court's jurisdictional limit being 2 years imprisonment. The conduct occurred in the course of the very licensed activity for which the Applicant now seeks an authority. I am not satisfied that the acts giving rise to the offence are trivial, especially as it involved improper use of the Agency's trust account for an amount in excess of $65,000.

1. The Applicant submitted that the circumstances giving rise to the offence should be taken into account. According to the Statement of Facts from the prosecution, his written submissions and in his evidence before me, he claimed that in January 2022 he borrowed money through associates of a former client as a "short term bridging loan" to help another person - "a friend". When the friend disappeared the Applicant was pursued to repay the debt, as it was he who had introduced the friend to the loan-providers. Before me he was unable to articulate how he planned to make the repayment, and he claimed to have been the victim of extortion. He said that from early February 2022 people were intimidating him by driving past his house, knocking on his door at all hours, and coming to his workplace and open homes. One night he was taken to a room where his life was threatened and he was harassed for the money. On another occasion he was tied up, and had a gun put in his mouth and a blow-torch was held against his kneecap and his testicles. He made the mistake of showing the extortioners his bank accounts on his phone, which included the Agency's trust account. He was forced to provide the trust account password, and, he said, the extortionists made the transfers. The money was transferred from the Agency's trust account to the Applicant's personal bank account, then cash withdrawals were made, and that cash was then provided to the extortionists. He said he paid them most of the money but "it was never enough"; there was interest upon interest. He did not report the extortion to Police because he was afraid for his life, but did speak to a friend who is a Police officer.
2. When the Agency's trust account was frozen by the Respondent, he felt trapped and considered suicide. He said in his evidence though that the Respondent's actions in fact "saved [his] life" as he no longer had access to the Agency's funds, so he was then no longer pursued. Conversely, he said he remains in fear for his life as "retaliation" notwithstanding the debt has been repaid in full.
3. The Applicant said he was severely traumatized and was referred to a psychologist; he may have PTSD but it is unclear if there has been a formal diagnosis. He has lost his business, his reputation, his long-term partner and has had to move house twice. His life is a misery. He was clearly distressed in giving his account of the threats that had been made in the course of the claimed extortion.
4. The funds were repaid to the trust account by the Applicant's business partner, to whom, in return, he transferred his share in the business.
5. As to whether these circumstances can be taken into account, in Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 (O'Connor) the Appeal Panel considered the proper construction of s 16(2) of the PSA Act and, at [34] noted that there were only two factors to be taken into account in the exercise of the discretion, namely "the time that had passed since the offence was committed", and "the triviality of the acts or omissions giving rise to the offence".
6. In the present matter the offending behaviour was directly linked to the Applicant's role as a real estate agent as he accessed funds from the Agency's trust account. The amount of money fraudulently converted was significant. In so doing, the Applicant breached his fundamental obligations as a trustee which directly related to his role as a licensee under the PSA Act.
7. The Applicant completed his CCO successfully and has not come to attention again. It is clear from the views expressed by the Appeal Panel in O'Connor however, that the subsequent good behaviour of an applicant is not a relevant consideration.
8. In summary, because the only matters I can consider for the purposes of s 16(2) of the PSA Act are triviality and passage of time since offending, I decline to exercise the discretion under s16(2) of the PSA Act and determine that the dishonesty offence committed by the Applicant should not be ignored for the purposes of s 16.

Is the Applicant a fit and proper person to hold the licence sought?

1. The Respondent also submitted that the Applicant is not a fit and proper person to hold a real estate agent licence because of his history of offending and because he has been disingenuous with the regulator. For completeness, I considered this also, notwithstanding my view expressed above that the Applicant is a person disqualified from holding a licence.
2. The question whether a person is "fit and proper" is one of value judgment: Australian Broadcasting Tribunal v Bond [1990] HCA 33. The expression, on its own, carries no precise meaning and takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities: at 380. See also Hughes and Vale Pty Ltd v New South Wales (No.2) [1955] HCA 28 (1955), Re Percival and Australian Securities Commission [1993] AATA 196, Re Brennan & Australian Casino Surveillance Authority (1995) 38 ALP 794 at [41].
3. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she "is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails."
4. The PSA Act establishes that integrity, honesty and trustworthiness are central to the certification and licensing regime for persons engaged in the real estate industry in NSW: Stojanovic v Commissioner for Fair Trading, NSW Office of Fair Trading [2008] NSWADT 109 at [44].
5. As the Tribunal noted in Maher v Department of Fair Trading [2019] NSWCATOD 21 at [124]:

A licensed real estate agent carries privileges and obligations. Agents are entrusted to hold deposits on sales of properties and to receive rent on behalf of landlords. The industry is regulated to provide the public with a measure of confidence that agents follow rules in respect of trust money and conduct themselves competently, honestly and fairly.

1. The Respondent contended that the Tribunal should not be satisfied the Applicant is a fit and proper person, and submitted, in particular, that the Applicant's offending was directly linked to the real estate licence he held and which he again seeks. The Applicant took funds from the Agency's trust account to which he only had access to because of his licence. The Respondent submitted that the circumstances that the Applicant claimed the offending occurred, were not supported by evidence. However, I do not agree with this criticism because it is unlikely that such corroborative evidence of the alleged extortion would be available in any event.
2. However, the Applicant's account contained some anomalies. The funds were largely recorded as being transferred to his father. He said that these payments were so that his father could take cash to the extortionists because he, the Applicant, wanted nothing to do with them As to payments by his father to gambling sites, the Applicant said this was an additional means of accessing cash "turnover" and agreed that such a strategy would actually require the person betting to win, otherwise the cash would be lost. He said he wasn't thinking clearly and agreed it would have been easier just to make a withdrawal up to his card's daily limit (of which there was no evidence) and repeat that process the following day until the amount payable to the extortionists was reached. The described process contradicted his account of the transfers having been made by the extortionists after he had been forced to disclose the passwords to his accounts, including the Agency's trust account.
3. To establish fitness and propriety it is necessary for an applicant to accept responsibility for the wrongdoing: see Trlin v Department of Fair Trading [1999] NSWADT 72 and Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37. In his written submissions the Applicant indicated that he has taken full responsibility for his actions in the offending in 2022. However, on several occasions in the submissions he appeared to have attempted to minimise his conduct. For example he wrote to the effect that he was manipulated by his so-called friend - which presumably related to his facilitating the loan. He referred to the breach as being an "isolated issue" whereas there was at least 10 fraudulent transactions. He did not believe there to have been "dishonesty or fraud", which is plainly inaccurate. In noting the amount had been repaid, he neglected to mention that it was his business partner who re-instated the funds to the Agency's trust account.
4. The Respondent submitted that the Applicant's description of his actions minimises the offending and does not indicate he has taken full responsibility for his actions. I also observe that the Applicant sought to distance himself from the actual transactions - suggesting they were in fact made by the extortionists, rather than by him personally.
5. I accept the Applicant's submission that he is "not a lawyer" and that his submissions demonstrate his lack of drafting skills. I note though that the Applicant has trained as a real estate, having completed high school (and was school captain); I do not accept he is as unsophisticated as he sought to make out.

1. As outlined above, the Applicant was dishonest in the licence application that is the subject of these proceedings: he wrote "no" in answer to the question: "Have you ever been convicted in NSW or elsewhere of ANY offence that was recorded in the last 10 years?".
2. The Applicant said it was the last day he could submit the application before the 12-month period to renew the licence ended. The Applicant indicated in his internal review request and in his evidence before me that he answered 'no' to the question about his criminal history due to "a misunderstanding". He said that the online application would not allow him to continue without attaching a criminal history if he answered 'yes' to the question. I accept that he provided evidence that he requested a criminal history check from the NSW Police on 21 January 2025, shortly before the licence application was submitted which was the last available date he could make the application. Because he had not received the criminal history check his evidence was that he telephoned the Department was advised to lodge the application nonetheless. He misunderstood that he could subsequently amend his application when the Police check was to hand. When the Police check was received, he said he sought to amend his application but was told that it could not be amended. Conversely, the Applicant in fact emailed the Respondent with changes to his postal address and email address on 22 April 2024. Otherwise, he made no attempt to send in the Police check and instead thought he would rely on the appeal process to have the record corrected. He said he just "handled the process poorly". The Applicant noted that it would be naive of him to suggest that he could pass off the fact of the conviction especially as it had directly involved the Respondent. While there may have been no intention to deceive the Respondent as the Applicant claims, it remains that his approach was cavalier, especially in circumstances where he took other steps to amend his application. The Applicant has been disingenuous, and this reflects on his fitness and propriety to hold the licence.

1. In his written submissions, the Applicant stated: "Over my lifetime in the industry I have never had any issues, disciplinary action or suspensions for any misconduct or breaches previously." While there was no history of trust account non-compliance other than the offence in 2022, the Applicant's statement was not accurate. In fact, Penalty Notices were issued to him personally and/or the Agency (while the Applicant was licensee in charge) in 2019, 2020, and 2021. They related to contravening the code of conduct, failure to supervise the business and failure to respond to departmental requests.

1. The character reference from Dr Brydon was prepared for the purpose of the criminal proceedings. The reference spoke very favourably of the Applicant, in circumstances where Dr Brydon was clearly aware of the Applicant's offence.

1. There was no dispute that the Applicant has no criminal history, and that he acknowledged before me that he had "done the wrong thing" and that what had occurred was "completely out of character". I have also taken the very positive reference into account. On the other hand, as I have observed, there was some obfuscation in the Applicant's evidence in relation to details of the extortion, his attempts to overcome the falsehood in his application and his failure to acknowledge previous transgressions.
2. For these reasons, I am not satisfied that the Applicant is a fit and proper person to hold the licence sought.
3. In his final submissions the Applicant said he would accept a Class 2 licence, which, in summary would authorise him to work in a real estate agency. I observe, firstly that that is not the application before me and, in any event in consideration for such a licence the same tests in relation to disqualification and fitness and propriety also apply. As to whether a (Class 1) licence could have conditions which would preclude his access to a trust account - a de facto Class 2 licence - such that he might be able to again undertake licensed work in the industry I consider that no conditions can be placed on the Applicant's licence to remedy the identified issues with respect to disqualification and fitness and propriety.

(1) The publication or broadcast of the name of the applicant is prohibited. This order is made under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013. Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.