Isacson v Commissioner For Fair Trading [2025] NSWCATOD 60

1. The parties are in general agreement with the background.
2. The Applicant held a held a certificate of registration as a real estate salesperson from May 2005 to May 2010. He was issued a real estate licence in October 2011. He surrendered his licence in April 2021.
3. A conviction was recorded against him at Parramatta Local Court on 30 June 2023. The offence was Dishonestly obtain financial advantage etc by deception under section 192E(1)(b) of the Crimes Act 1900. He was convicted and sentenced to a Conditional Release Order ("CRO") for a period of 12 months, commencing 30 June 2023 and expiring on 29 June 2024. The CRO was subject to certain conditions including that the Applicant "attend upon his GP to receive individualised counselling as recommended by the GP".
4. The agreed Statement of Facts provided the following relevant details:

"1. The Spot Realty Pty Ltd ... (Spot Realty) was ... trading under the business name L J Hooker Randwick until September 2020.

2. Spot Realty was granted corporation licence No 1430645 under the Property Stock and Business Agents Act 2002 ...

3. Mr Anthony Romano was the sole director of the Spot Realty between 19 January 2007 up until 26 April 2021 when second director was appointed. Mr Anthony Romano is the licensee in charge (LIC).

4. Mr Mikael Alexander Isacson (also known as Michael lsacson) (the Defendant) was a Senior Property Manager at Spot Realty. ...

5. Spot Realty held a rental trust account with National Australia Bank ... The LIC was the sole signatory and only person to have banking access.

6. The Defendant held the following bank accounts in which he is the sole signatory:

7. Spot Realty offers residential sales services and property management services. The managed properties included boarding houses, which are short term rental accommodation, Short-term accommodation agreements do not require lodgement of bonds with NSW Fair Trading as they are excluded from the Residential Tenancies Act 2010. The rental bonds collected by Spot Realty (approximately 2-3 weeks rent) were held in its trust account and released upon the tenant vacating the property.

8. At Spot Realty, the Defendant was responsible for the rent roll. His role involved direct contact with landlords, managing rental properties including signing property leases, lodgement and refund of rental bonds, lodging creditor payments into the REST trust accounting system used by the agency, and authorising creditor payments. The Defendant was also in charge of managing the boarding house accommodation including leasing, lodgement of bonds and refund of bonds.

9. To disburse payment from the trust account, the Defendant logged creditor payments into the REST system and authorised payment from the trust account. The Defendant would email the LlC the payment list to check, reconcile and approve. The LlC would then send payment to the bank via electronic means and enter a unique on the spot generated password to approve the payment.

10. On 14 December 2020, the LlC wrote to NSW Fair Trading advising that the Defendant had the day before made admissions to unlawfully taking trust monies from the trust account totalling $24,497.16. The Defendant explained to the LIC that he would process each payment as an invoice using the tenant's name on the pay file and change the account number to his own, Following this meeting, the Defendant sent to the LIC an excel spreadsheet that listed 35 occasions where he had transferred monies to his personal accounts totalling $24,497.16.

11. Following an investigation, NSW Fair Trading identified that there were 38 occasions between 8 December 2017 and 18 September 2020 in which trust money was transferred into the Defendant's bank account totalling $26,952.16. ... The Defendant has since confirmed to investigators that he may have omitted some of the transactions on his spreadsheet as an oversight.

12. The investigation by NSW Fair Trading revealed that upon deposit of the misappropriated amounts, the money was then withdrawn or transferred to ... the Defendant's ... account. The monies that were transferred ... were used for personal expenses ...

13. The Defendant made restitution into the trust account as follows;

1. On 11 December 2020 in the amount of $24,497.16.

2. Between 29 March 2021 and 1 April 2021 over 5 transactions totalling in the amount of $4,275.

14. On 23 Apr11 2021 the Defendant's employment with Spot Realty was terminated.

15. On 24 April 2021 the Defendant surrendered his real estate licence."

1. In a letter to the Local Court the Applicant explained:

In 2017, my mental health was at an all time low. I fell in love with a woman who wasn't good for me. Our relationship was extremely turbulent to say the least and I didn't realise how much it was changing me as a person. I slowly stared drinking alcohol more regularly and it became habit. This addiction was quickly followed by cocaine use and gambling. I was doing whatever I could to numb the pain that I was continuously feeling. It took me so long to see the root of the problem and by the time I had, I had accumulated a number of bad habits which just completely caused my life to spiral out of control.

Due to the increase in my spending on alcohol and cocaine, my financial situation suffered. I remember the first time I took money from the trust account. I was desperate for money and I somehow let myself believe that there was no harm in what I was doing since the money was just sitting in the account. At first, I thought I could use the money to gamble and just put my winnings back in but as soon as I realised that no one was really claiming the money, I just continued. I was being extremely irresponsible and acting completely outside of my professional obligations. I don't know how I could think like that.

In 2020 I broke up with my ex-partner. Not long after, I looked at myself in the mirror and realised what I was doing and how I was living. I felt extremely ashamed and disgusted in myself. I was full of guilt. I knew that I was at a point in my life where I had to do something significant. I knew I couldn't just run away from my problems. I went to my employer and told him everything about my situation and what I had done over the years.

1. The Applicant now wishes to return to working in the real estate industry.

1. The issue for determination is whether the decision to refuse the Applicant's application is the correct and preferable decision.
2. This determination requires consideration of whether the Applicant is a disqualified person for the purposes of the Act. If so, the Tribunal must also consider whether the Applicant's offence should be ignored, 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. The Tribunal must also consider whether the Applicant is no longer a fit and proper person to hold a certificate under the Act.

1. The Tribunal has jurisdiction to review an administratively reviewable decision: section 55 of the of the Administrative Decisions Review Act 1997 ("the ADR Act") The Tribunal has jurisdiction to hear and determine this application for review pursuant to section 27 of the Act.
2. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (section 63(1) of the ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (section 63(2) of the ADR Act). The time at which the correct and preferable decision is determined is when the Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
3. The Tribunal may decide to affirm or vary the administratively reviewable decision or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration: section 63(3) of the ADR Act.
4. The Tribunal is required to base its findings of fact on logically probative material: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; (1980) 44 FLR 41 at 62 and 68. The standard of proof applying in this review is the balance of probabilities. There is no burden or onus of proof on either party: see Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 at paragraphs [28]-[34].

1. The Act provides for the licensing, regulation and discipline of individuals, and corporate or other entities carrying on a business in the real estate industry.
2. Section 19 of the Act states that an application must not be granted unless the applicant is eligible to be granted the relevant licence or certificate of registration that has been sought.
3. The Respondent contends that the Applicant is a disqualified person as a consequence of his convictions and that the Applicant is a not a fit and proper person to hold the licence that he is seeking.
4. Section 14(3) of the Act provides that:

A person is eligible to hold a certificate of registration only if the Secretary is satisfied that the person -

(b) is a fit and proper person to hold a certificate of registration, and

1. Section 16(1)(a) of the Act provides that a person is a disqualified person for the purposes of the Act if the person has a conviction for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined that the offence should be ignored.
2. Section 192E of the Crimes Act 1900 provides:

(b) obtains any financial advantage or causes any financial disadvantage,

1. Section 16(2) of the Act states that the Secretary may determine that an offence committed by a person should be ignored for the purposes of section 16(1)(a) 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.
2. The Respondent refused the application on grounds that the Applicant is a disqualified person under section 16(1)(a) and is not eligible to hold a certificate of registration under section 14(3)(d). The Respondent also contends that the offence was not trivial, and that insufficient time had passed since the offence was committed, to warrant the offence being ignored pursuant to section 16(2).
3. The Respondent also contends that the Applicant is not a fit and proper person to hold a certificate of registration.

1. The Act places an emphasis on the need for licensees to be fit and proper for the role. The Tribunal has considered the issue of whether an Applicant is a fit and proper person to hold a licence on numerous occasions.
2. The issue of an applicant's fitness and propriety is one of fact to be determined objectively, taking into account all the evidence: Smith v Commissioner of Police, New South Wales Police Force and NSW Fair Trading [2014] NSWCATAD 184. The Appeal Panel has pointed out that public interest considerations play a role in the assessment of fitness and propriety: Director- General, Transport New South Wales v AIC (GD) [2011] NSWADTAP 65, [37]; Smith, [30].
3. The question of a person's fitness to hold a licence is to be determined by reference to the activities in issue and consideration of the nature and purpose of the activities that the person will undertake. In the High Court decision in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 Toohey and Gaudron JJ said:

The expression "fit and proper person", standing alone, carries no precise meaning. It 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. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.

The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.

1. In Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Walters J said:

In my opinion what is meant by that expression is that the Applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities devolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails.

1. In Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 the High Court discussed the meaning of the term 'fit and proper' (at 156-7):

"The expression "fit and proper person" is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneus") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do ; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it" - Coke. When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

1. The Respondent noted the Applicant's contention that he brought the conduct to light and that without his admission it might not have been discovered. However, the Respondent nevertheless contends that in light of the Applicant's conduct he is not a fit and proper person to hold a certificate under the Act.

1. The Respondent provided a bundle of documents pursuant to section 58 of the ADR Act. The bundle contains documentation related to the charge brought against the Applicant, agreed facts and other material provided to the Local Court as well as submissions made to the Respondent in relation to the internal review process. The Respondent's legal representative provided both written and oral submissions.
2. The Applicant relies on his own evidence. He attended the hearing and was cross-examined. The Applicant has also submitted a number of documents that were submitted to the Presiding Magistrate including:

Letter dated 29th June 2023 addressed to the "Presiding Magistrate" signed by the applicant.

Letter dated 29th June 2023 addressed to the "Presiding Magistrate" Parramatta Local Court signed by Steven Louis Zahos.

Letter dated 29th June 2023 addressed to the "Presiding Magistrate" Parramatta Local Court signed by Dr Daniel lsacson.

1. In addition to the material filed in these proceedings, the Applicant relies on correspondent submitted to the Respondent including:

Letter dated 21st August 2023 addressed to Department of Fair Trading signed by the applicant.

Submissions contained in correspondence dated 5th August 2024 provided by Ms Lisa Jemmeson Senior Partner of Jemmeson Fisher Legal Pty Ltd.

Letter addressed to NSW Fair Trading Reviewable Decisions Team dated 5th August 2024 signed by Anthony Romano of Olsen Romano Estate Agents.

1. The Applicant's counsel provided both written and oral submissions.

1. The Respondent's solicitor has provided written and oral submissions. As noted, the Applicant was convicted of an offence involving dishonesty in June 2023 and he was sentenced to a CRO for a period of 12 months expiring in June 2024. The essence of the Respondent's case is that the offence that the Applicant committed was not trivial and insufficient time has passed since the offence was committed for it to be ignored.
2. The Respondent contends that insufficient time has passed for the Applicant to demonstrate that he has reformed and that he is fit and proper to return to the real estate industry.
3. The Respondent relies on views expressed by the Administrative Decisions Tribunal Appeal Panel in regard to the proper construction of the discretion in sub-section 16(2) of the Act. In Commissioner for Fair Trading, NSW Office of Fair Trading v O'Connor (GD) [2007] NSWADTAP 37 the Appeal Panel noted at paragraph [34] that there were only 2 factors to be taken into account in the exercise of this 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.
4. In relation to the offence, the Respondent submitted that the agreed facts show that the acts and omissions that gave rise to the offence committed by the Applicant were very serious. Between December 2017 and September 2020, the Applicant transferred trust money into his own bank accounts on 38 separate occasions. He transferred a total of $26,952.16 and used the funds for personal expenses.
5. The Respondent noted that the Applicant admitted that:

a) He had been misappropriating trust funds sending the monies to himself from the trust account.

b) There were 7 occasions where he stated that monies were to go the landlord because the tenant had either not proceeded with the lease or broken the lease however he diverted the monies into his own account.

c) The bond monies were in the agency's AA Bond internal account. He entered an invoice credit to the tenant, left the tenants name there and changed the tenants bank account number to his own account number. He left the description of the transaction on the software system the same as the system generated to avoid detection.

d) He transferred the bond monies to his own account.

e) There were some occasions where he transferred the tenant refunds for example for overpaid rent to his own account by changing the tenants account details with his own.

f) He took the tenants bond monies or overpaid rents after the tenant had vacated.

g) He chose to take monies where he would have been sure that the tenant would not ask for the bond or the refund.

h) None of the affected tenants complained. Most of the tenants involved were overseas students who may have returned home.

I) He used fake descriptions while transferring the trust monies to his own account.

j) He also took monies that were supposed to go to the landlord by changing the landlord's bank account details with his own for example where the tenant broke the lease.

k) He had a dormant bank account which he decided to use for the purposes of depositing the trust monies. He did not use his wages account that was known to the agency to avoid detection.

I) He had no authorisation from anyone including landlords or tenants to take the trust monies.

1. The Respondent accepts that the Applicant made restitution into the trust account but notes that he only did so three years after he had first committed the offence.
2. The Respondent has referred to a number of Tribunal decision that have considered the issue of the amount of time that has passed since the offence was committed. With respect to that issue, the Respondent notes that the last conduct occurred in September 2020.
3. In Eleter v Director General, Department of Fair Trading [2002] NSW ADT 138, Mr Eleter was convicted in 1998 of receiving stolen property. He was fined $200 and ordered to pay compensation of $150 and court costs. Judicial Member Lees stated at paragraph [59]:

59 However the Act sets a 10 year disqualification period for an applicant who is convicted of an offence involving dishonesty. In Mr Eleter's circumstances his offence was one involving dishonesty and one of only several expressly nominated offences requiring instant revocation under the Act. It can be regarded as a significant offence in relation to the Act. It attracts the ten-year disqualification period. As submitted on behalf of the Director General four and a half years is less than half way through the disqualification period. Accordingly, although four and a half years may be sufficient passage of time after some offences, in relation to Mr Eleter's specific offence it is considered an insufficient period and therefore the s. 8(4)(b) discretion is not exercised in Mr Eleter's favour.

1. In Parvin v Commissioner for Fair Trading [2005] NSWADT 34, Mr Parvin was convicted of traffic offences of dishonesty including producing someone else's licence to police when stopped, in circumstances where he did not possess a licence. He received a sentence of home detention. President O'Connor DCJ concluded that Parvin should not be permitted to resume as a licensed person. His Honour stated at paragraphs [17] - [18]:

17 As noted, the Commissioner has refused Mr Parvin re-entry to the real estate profession on two grounds: that he is not a fit and proper person to hold a licence and that he has a conviction for an offence involving dishonesty which was recorded in the last 10 years and the Commissioner has not determined that this offence should be ignored.

18 On the basis of the strong testimonial evidence presented, I am satisfied that, despite his recent bad record, Mr Parvin can now be regarded as a fit and proper person to hold a licence or certificate. On the other hand I agree with the Commissioner that the other ground for refusal remains relevant; and his offences should not, at this point, be ignored. Mr Parvin has committed serious offences involving dishonesty, albeit unconnected with real estate work. The question of his trustworthiness and his integrity is involved.

1. In Bek v Commissioner for Fair Trading [2004) NSWADT 149, Mr Bek was convicted of "Driver/Rider State False Name or Address" and was fined $300. I took into account the nature of the offence and I formed the view that the offence was at the lower end of the scale. I stated at paragraph [47]:

47 I accept the submissions made on Mr Bek's behalf with respect to the time that has passed since the offence was committed. Some three and a half years have passed since the offence was committed. I also agree that the passage of time should not be considered in isolation to consideration of Mr Bek's age at the time of the offence. 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 time 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. In this case, it is my view that given the nature of Mr Bek's offence, three and a half years is sufficient to warrant the exercise of the discretion conferred to treat the offence as one which should be ignored.

1. In Hunt v Director General, Department of Services Technology and Administration [2010] NSWADT 186, Judicial Member Higgins considered the offences of obtaining money by deception involving the amount of $6,957.08 as serious. She stated at paragraph [21]:

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. The Respondent noted that the Applicant has pointed to my decision in Jones v Commissioner for Fair Trading [2023) NSWCATOD 169, in which I set aside the determination of the Regulator. However, the Respondent submitted that the circumstances in Jones can be differentiated from the Applicant's circumstances in this case.
2. In the present matter, the Respondent submitted that:

(1) The offence for which the Applicant was convicted is a serious offence involving dishonesty.

(2) He committed the offence while employed as a Senior Property Manager at Spot Realty. The offence occurred in the course of the licensed activity for which he now seeks an authority.

(3) It was on 18 September 2020 when the last conduct occurred.

(4) he was convicted on 30 June 2023 and sentenced to a CRO that only expired on 29 June 2024.

1. The Applicant committed a serious offence involving a significant breach of trust committed in a fraudulent way. The question of trustworthiness and honesty is central to real estate work for which he seeks an authority.
2. It is submitted that taking into account the matters set out above, the period since the offence was committed is insufficient to warrant the exercise of the discretion to ignore the Applicant's serious offence.
3. With respect to the question of whether or not the Applicant is a fit and proper person to hold the certificate that he is seeking, the Respondent noted that at the time of the offence, the Applicant had been in the real estate industry for over 12 years. He had initially been a certificate holder and subsequently a licence holder.
4. The Respondent notes a report dated 15 June 2023 from Mr John Machlin, Clinical Psychologist which refers to contributing factors with respect to the offence. Mr Machlin noted:

Mr Isacson discussed the offending with contrition, relating that he acted out of character and ultimately came forward out of guilt. He related that his alcohol and cocaine habit increased in the context of his dysfunctional, four-year, on-and-off relationship. He said of his partner, "I was really in love with her," but she was "confused about what she wanted." He said during that time his gambling habit on poker machines and online sports betting increased to the extent that he would spend whatever he had left of his income.

He recalled justifying to himself that the monies would not be missed, such as bonds and overpaid rent that the tenants never claimed. It seemed the money was "just sitting there, " at least in some instances, though in other instances he felt worse when losses incurred by others were more distinct. He said he was continually chasing his gambling losses with the intention "to put money back in."

1. The Respondent submitted that, even accepting that the Applicant was under personal stress and experienced mental health issues at the relevant time, these matters do not absolve the Applicant of his dishonest and fraudulent conduct.
2. The Respondent also noted that Mr John Machlin had referred to counselling sessions attended by the Applicant. He reported:

He said he consulted a psychologist, Steven Albert in Double Bay, with a view to "getting my mental state together." He recalled addressing his emotional distress, relationship problems, drug use, gambling, and some paranoid thoughts about people denigrating him which he attributed to his cocaine use. Although he only attended two or three meetings, he said he derived support and some useful mindfulness skills. He said he ceased attending because of the expense and because he felt he was already improving.

1. The Respondent also noted that the CRO was subject to the condition that the Applicant "attend upon his GP to receive individualised counselling as recommended by the GP". The Applicant's evidence was that he had attended some counselling sessions, but that the cost had become prohibitive. In substitution he had been regularly counselled by his brother who is a GP. However, the Respondent noted that there is neither a report nor information provided regarding his progress in counselling and rehabilitation. Further, the Respondent argued that the Applicant could have accessed free counselling.
2. The Respondent noted that the Applicant has submitted a number of references, however it is submitted that those references are not sufficient for the Tribunal to find, on balance, that the Applicant is a fit and proper person such that he should be issued the certificate. It is submitted that they should be given little to no weight.
3. In the circumstances, the Respondent submits that the Tribunal should affirm the decision refusing the application for a certificate of registration.

1. The Applicant attended the hearing, gave evidence and was cross-examined. The Applicant's counsel provided both written and oral submissions.
2. The Applicant does not dispute that the offence involved a serious act of dishonesty. However, his position is that the circumstances of this matter are unique and that therefore the authorities to which the Respondent has referred can be distinguished because of the unusual circumstances of this matter. The Applicant has no other criminal convictions.
3. It is also not in dispute that the Applicant exposed the commission of this offence himself. The is no suggestion that the offending was about to be exposed, or that it was necessarily likely that it would have been exposed. This is not a matter in which the offence was discovered and then the Applicant made the admission. The Applicant's self-disclosure of the offence resulted in the investigation of the matter.
4. The Applicant informed Mr Anthony Romano, the licensee-in-charge of Spot Realty, of the misappropriation. Mr Romano subsequently informed NSW fair Trading. The Applicant surrendered his licence after he came forward with respect to the misappropriation of monies.
5. It is also not in dispute that with the Applicant fully and honestly co-operated with the investigation and made full financial restitution for the funds that had been misappropriated.
6. The Applicant has expressed remorse. He was otherwise of good character. He submits that his conduct in committing the offence was out of character and he is commitment to honesty in his future employment. It is submitted that the fact that he self-reported his conduct, assisted investigators with these inquiries and entered a plea of guilty on the first occasion supports the contention that the offence was out of character.
7. The Applicant competed the CRO without blemish.
8. With respect to the Respondent's contention that the Applicant failed to comply with the condition that he attend counselling, it is the Applicant's evidence that he did attend upon his GP and he attended some counselling sessions. The CRO condition did not specify any particular number of counselling sessions, and he has continued to receive informal counselling from his brother who is a GP. The evidence is that he consults with his brother regularly.
9. The application is for the Applicant to be able to be employed in the real estate industry in a limited role, without any involvement in financial accounting or handling of trust funds.
10. The Applicant's counsel submitted that if granted the certificate that he is seeking, the Applicant would be employed as a Leasing Agent. The position would not be involved with Trust monies. He would be under the direct supervision of the licensee in charge, Mr Romano.
11. The Applicant's role would be to assist the property manager, showing vacant properties for rent, undertaking periodical inspections, and attending to repairs and maintenance such as obtaining instructions from landlords. There would be no opportunity at all to be involved in financial matters in the real estate industry. The Applicant would therefore have the opportunity to prove over an extended period of time that he can be trusted and responsible.
12. It is submitted that the discretion to ignore the dishonesty offence should be exercised because of the length of time that has passed since the offence was committed. The passage of time should not be considered in isolation. It is submitted that in this case, the circumstances of the offence include the manner in which the offending was disclosed, and the implied honesty with which the Applicant cooperated with the investigation. It is of significant importance that the Applicant revealed the offending himself. Voluntarily disclosing such offending is rare and should be regarded as an extraordinary circumstance. The Applicant was otherwise of good character.
13. It is submitted that in all the circumstances, the Tribunal should allow the application for a certificate of registration under the Act in the limited terms sought by the Applicant.

1. As noted, this is a matter in which the Applicant's application for a Certificate of Registration under the Act was refused because of a dishonesty offence recorded against him.
2. The background is not in dispute and is essentially as set out above. the Applicant has previously held a licence under the Act and at relevant times he was employed at Spot Realty.
3. In June 2023 the Applicant was convicted of the offence of Dishonestly obtain financial advantage etc by deception under section 192E(1)(b) of the Crimes Act 1900. He was convicted and sentenced to a CRO for a period of 12 months, expiring on 29 June 2024.
4. As noted, the Applicant was employed as a Senior Property Manager at Spot Realty and in that position, he was responsible for the rent roll, lodgement of bonds and refund of bonds. In December 2020, the Applicant made admissions to misappropriating trust monies from the Spot Realty trust account totalling $24,497.16. The Applicant identified 35 occasions where he had transferred monies to his personal accounts. The Respondent was notified of the conduct and undertook an investigation. As a result, further three transfers were identified. Between 8 December 2017 and 18 September 2020 funds totalling $26,952.16 were transferred into the Applicant's personal accounts.
5. It appears that the Applicant had made an error in his calculations and that he had not deliberately withheld the deals of the transfers that were identified in the investigation.
6. The Applicant's employment with Spot Realty was terminated and he surrendered his real estate licence."
7. It is common ground that a person is a disqualified person for the purposes of the Act if the person has a conviction for an offence involving dishonesty that was recorded in the last 10 years, unless the Secretary has determined that the offence should be ignored. An offence may be ignored for the purposes of section 16(1)(a) 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.
8. I accept 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 Act unless the offence should be ignored pursuant to section 16(2) of the Act.
9. The parties agree that the offence is a serious offence involving dishonesty. At the time of the offence, the Applicant had been in the real estate industry for over 12 years and was a licence holder. The offence involved a significant breach of trust committed in a fraudulent way. The conduct occurred over a long period of time and occurred in the course of the licensed activity for which the Applicant now seeks an authority. I am not satisfied that the acts or omissions giving rise to the offence are trivial.
10. However, I agree with the Applicant that the circumstances of this matter are rare and can be regarded as extraordinary. In my view this is a relevant consideration in regard to whether the offence should be ignored for the because of the time that has passed since the offence was committed.
11. It is also my view that the circumstances are relevant to consideration as to whether the Applicant is a fit and proper person to hold a certificate under the Act.
12. I found the Applicant to be a truthful witness. He did not make any attempt to minimise the seriousness of his conduct. He expressed remorse and while he provided an explanation of his circumstances at the time of his offending, and factors that contributing to his conduct, he accepts responsibility for the offence.
13. Notwithstanding his conduct, I accept that the Applicant is otherwise an honest person. This is demonstrated by the fact that he self-reported his conduct, assisted investigators with their inquiries and entered a plea of guilty on the first occasion. He accepted the penalty imposed by the court and complied with the conditions of his release.
14. I note the Respondent's contention that he did not comply with the intention of the CRO condition relating to counselling. I agree that it would have been better had he received independent counselling, but I do not consider that he has breached the condition. I accept that he did attend upon his GP to receive counselling, and I accept that he is continuing to undergo counselling with his GP brother.
15. Each of the parties has referred me to a number of Tribunal decision which have dealt with the issue of whether an offence should be ignored because of the time that has passed since the offence was committed. I accept that those decisions are helpful in highlighting factors that should be considered. However, I agree with the Applicant that each of those matters can be distinguished from the present matter because its particular circumstances which can be regarded as extraordinary.
16. As noted, the Applicant's conduct extended from December 2017 to September 2020. A period of 4 ½ years has passed since the last misappropriation of funds by the Applicant. Given the extraordinary circumstances in which the conduct was disclosed and the Applicant's subsequent behaviour, it is my view that sufficient time that has passed since the offence was committed to allow the offence to be ignored for the purposes of section 16(1)(a) of the Act.
17. I also note that I do not share the respondent's concern in regard to the Applicant's fitness and propriety. In that regard I note that the Applicant's evidence is that he has the opportunity to be employed under the direct supervision of Mr Romano. Given their former relationship, Mr Romano is aware of the details of the Applicant's offence and nevertheless holds the Applicant in high regard. It is also my view that the risk to the public is minimised because of the requirement for supervision of a certificate holder.
18. In all of the circumstances, I am satisfied that the correct and preferable decision is that the application for a Certificate of Registration - Assistant Agent under the Act should be granted.

(2) In substitution the decision is made that the application is granted.

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.