Shoostovian v Commissioner for Fair Trading

Background

1. Mr Shoostovian has previously held occupational licences (a Real Estate Licence) issued and administered by the Commissioner. On 21 October 2009 the Commissioner cancelled Mr Shoostovian's Real Estate Licence and permanently disqualified him from ever holding a Real Estate Licence again. That cancellation arose in the context of disciplinary action arising from the Commissioner issuing a Notice to Show Cause (NTSC) under the provisions of the then Property Stock and Agents Act 2002 now known as the Property Stock and Business Agents Act 2002.
2. The NTSC was issued as a result of matters coming to the Commissioner's attention as a result of a Judgment of the Supreme Court of NSW against Mr Shoostovian in civil proceedings concerning his conduct as a Director of a Company found to have engaged in multiple breaches under the Consumer Credit Administration Act 1995 (NSW).
3. Those Supreme Court proceedings concerned alleged breaches of the Consumer Credit Administration Act 1995 where Mr Shoostovian was convicted of 108 breaches under that Act (See Commissioner for Fair Trading, Department of Commerce v Armond Shoostovian [2009] NSWSC 713).
4. The Commissioner's delegate formed the view that as a result of the findings and the basis of those findings by the Supreme Court, Mr Shoostovian was not a fit and proper person to be the holder of a certificate (issued under the HB Act). The delegate was not satisfied that Mr Shoostovian was of good repute due to his deceptive behaviour and lack of integrity when dealing with his previous clients and Fair Trading. (Initial refusal decision 9/11/2020)
5. As a result of this finding (and confirmed / affirmed on Internal Review on 26 November 2020) the delegate refused the application for a contractor licence in the category of Builder, under the provisions of s 20 (1) (a) and 20 (1A) and 33A (1) (d) of the HB Act.

Jurisdiction

1. The refusal in first instance and on Internal Review was issued under the provisions of s 20 (1) (a) of the HB Act and the other provisions referred to at [10] above. Those sections provide: 20 Issue of contractor licences (1) The Secretary must refuse an application for a contractor licence if - (a) the Secretary is not satisfied that the applicant is a fit and proper person to hold a contractor licence, or … (1A) Without limiting subsection (1)(a), in determining whether an applicant is a fit and proper person to hold a licence the Secretary is to consider whether the applicant is of good repute, having regard to character, honesty and integrity. ….. 33A Disqualification from holding authorities (1) A person is disqualified from holding an authority (other than an owner-builder permit) if the person - (a) has been convicted in New South Wales or elsewhere of an offence involving dishonesty within the last 10 years, unless the Secretary has determined under subsection (2) that the offence should be ignored, or (b) has been convicted within the last 5 years of an offence under section 46A (Lending of authority prohibited), unless the Secretary has determined under subsection (2) that the offence should be ignored, or (c) is disqualified from holding a licence, certificate of registration or other authority under a corresponding law or is the holder of such a licence, certificate of registration or other authority that is suspended, or (d) is the holder of a licence, permit or other authority that is suspended under legislation administered by the Minister or is disqualified from holding a licence, permit or other authority under legislation administered by the Minister, unless the Secretary has determined under subsection (3) that the suspension or disqualification should be ignored, or
2. The HB Act provides: 83B Administrative reviews by Tribunal (1) An applicant for the issue, alteration, renewal or restoration of an authority aggrieved by any decision of the Secretary relating to the application may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (Emphasis added)
3. The Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
4. The Tribunal has jurisdiction under the HB Act as noted at [12] above.
5. As noted from the section above, an application under s 83B of the HB Act is an administrative review. The Tribunal's function on review under section 63 of the ADR Act 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 in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

What issues do these proceedings raise for determination?

1. On my assessment the issues are as set out by the Commissioner's representative:

• Whether the Tribunal can be satisfied that Mr Shoostovian is a fit and proper person to hold a contractor licence in the category of Builder;
• Whether sufficient time has elapsed since Mr Shoostovian's convictions to lift the disqualification pursuant to s 33A (2)

1. Sections 33A (2) and (3) of the HB Act in respect of waiving the disqualification referred to under the section provide: (2) 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. (3) The Secretary may, in any case that the Secretary thinks it appropriate to do so, determine that a suspension or disqualification from holding a licence, permit or other authority under legislation administered by the Minister (as referred to in subsection (1)(d)) is to be ignored for the purposes of this section.

Applicant's written evidence

• Exhibit 'A-1': Affidavit of A Shoostovian sworn 13 August 2021 including Exhibit to Affidavit 'AS-1' (406 folios)
• Exhibit 'A-2': Emails attaching evidence of searches for outstanding fines debt to Courts and State Debt Recovery Office (SDRO) and search results.
• Exhibit 'A-3' Tender Bundle of documents produced from Leverage Solicitors in response to summons.

Respondent's written evidence

• Exhibit 'R-1' Documents filed under s 58 ADR Act (704 folios)
• Exhibit 'R-2' Affidavit of O. Morrisey affirmed 16 November 2021.
• Exhibit 'R-3' Affidavit of B. Compton affirmed 1 March 2022.
• Exhibit 'R-4' Affidavit of E. Wang affirmed 10 February 2022.

1. Both parties were legally represented by both Solicitors and Counsel and provided detailed written submissions and made oral submissions at hearing.
2. Mr A Shoostovian (the applicant), Ms E Wang and Mr B Compton (previous solicitors for the applicant) gave evidence and were subject to cross examination at hearing.

The applicant's case

1. Mr Shoostovian's case is that he admits his wrongdoing and is sufficiently rehabilitated to be considered of sufficient character to be adjudged as a fit and proper person to have issued the relevant contractor licence. In addition he submits that sufficient time has elapsed to enable him to be adjudged by the Commissioner as no longer being classified as a disqualified person.
2. Mr Shoostovian believes that the discretion in s 33A (3) of the HB Act should be enlivened and exercised in his favour. Whilst he agrees that his offences were not trivial, he believes that there has been a sufficient passage of time elapsing to enable the discretion in s 33A to be applied allowing the Commissioner to ignore the statutory disqualification for the purpose of issuing the licence.

The Commissioner's case

1. The Commissioner submitted that the evidence establishes that Mr Shoostovian remains a person who is not of good repute and is therefore not a fit and proper person to hold the licence applied for. The Commissioner believes that there is insufficient evidence of rehabilitation and the Tribunal (and consumers) would be required to take Mr Shoostovian at his own word.
2. The Commissioner also believes that Mr Shoostovian has shown repeated carelessness in dealing with Fair Trading and regulatory authorities and that his responses are not accurate and careful or diligent.
3. The Commissioner believes that the nature and seriousness of the original offending / misconduct is such that Mr Shoostovian is 'not possessed of the requisite degree of honesty and integrity to hold the licence'.
4. In respect of the disqualification from holding a licence the Commissioner believes that the offences are sufficiently serious to warrant not exercising the discretion. In addition the Commissioner believes that the protection of the public weighs against ignoring the disqualification and that due to Mr Shoostovian's failure to keep records and the destruction of other documents he deliberately and wilfully prevented the regulator (the Commissioner) from being able to adequately protect the consumers impacted by Mr Shoostovian's significant breaches.
5. The Commissioner also believes that based on the evidence adduced around the 2016 application, then the non-disclosure of his prior convictions to Fair Trading was a matter within Mr Shoostovian's responsibility based on the totality of the evidence of his former Solicitors who were involved with assisting with the 2016 application. According to the Commissioner, this position establishes that in the last five years Mr Shoostovian was still attempting to mislead the regulator.

Further Background

1. The Commissioner's case also relied on matters that had arisen in the period between the Supreme Court proceedings which concluded in 2009 and the making of the current application for a contractor licence in late 2020. By way of background Mr Shoostovian made an earlier application for a licence in March 2016 - as discussed at [26] above. That application disclosed matters relating to traffic offences but (as set out in Exhibit 'R-2') did not disclose the convictions for the 108 breaches of the Consumer Credit Administration Act 1995.
2. The 2016 application was refused on 16 September 21016 on the basis that Mr Shoostovian was not a fit and proper person to be granted a licence. Mr Shoostovian applied for an Internal Review of that decision and on 4 November 2016 the Commissioner upheld the earlier decision.
3. Mr Shoostovian applied to the Tribunal for Administrative review of the decision on Internal Review to refuse his licence application. Those proceedings in the Tribunal (2016/00378832) were heard on 11 July 2017. Both parties were legally represented and at the end of the hearing on 11 July 2017 they were adjourned part heard for directions on 9 August 2017. Prior to the Directions date Mr Shoostovian decided to withdraw his application for administrative review of the decision and as a result the proceedings came to an end without any adjudication by the Tribunal. It is uncontroversial that a central issue canvassed at the hearing of those proceedings in July 2017 was the issue around the lack of reference to the conviction for breaches of the Consumer Credit Administration Act 1995 (the Supreme Court convictions).
4. In respect of the lack of disclosure of the Supreme Court convictions the Commissioner maintained and continues to maintain that Mr Shoostovian deliberately did not disclose those matters in his 2016 application. However this issue was not fully pursued in the 2017 hearing before the Tribunal as the matter was withdrawn before the conclusion of the evidence for what Mr Shoostovian stated at the time and in his current affidavit (A-1) as 'personal reasons'.
5. In the current proceedings the Commissioner decided to pursue those matters in respect of being additional matters (the non-disclosure) to support a finding that Mr Shoostovian was not of good repute and not fit and proper to hold a licence.
6. Whilst there were various objections to the introduction by the Commissioner of a fresh line of evidence (on the day of hearing) without formal notice, Mr Shoostovian was given sufficient time between the first day of hearing in November 2021 and the second day in March 2022 so that there was no procedural unfairness. Parties were given leave to issue summons to call Mr Shoostovian's former Solicitors, and when the matter proceeded (after dealing with admissibility issues concerning legal professional privilege), both Solicitor witnesses gave some evidence to the Tribunal about the scope of their instructions and their roles in assisting Mr Shoostovian with his 2016 application to Fair Trading.

Mr Shoostovian's oral evidence

1. Mr Shoostovian gave evidence on day one and was subject to cross examination.
2. In evidence in chief Mr Shoostovian adopted his affidavit (Exhibit 'A-1').
3. In cross examination Mr Shoostovian was asked about his eyesight and ability to read documents. He said that he can read documents on paper and on a computer screen. He could read the 2017 documents in front of him, and on his screen with his glasses as well as surgically designed contact lenses.
4. Mr Shoostovian was taken to page 475 of the s 58 documents which contained a letter from Mosman Accountants dated 2 September 2020 which estimated his income if a licence granted as being $150,000.00 per annum with $270,000.00 being the total value of his current assets. Mr Shoostovian was asked to confirm that the fine imposed by the Supreme Court in the sum of $183,000.00 remained outstanding which he confirmed it did.
5. When asked what steps he had taken about the fines Mr Shoostovian said that he contacted the SDRO and there was apparently no record of any fine outstanding.
6. Mr Shoostovian was asked about a licence application in March 2016 which appears at page 4 of the s 58 documents. Mr Shoostovian accepted that that application did not disclose the convictions imposed by the Supreme Court. Mr Shoostovian said that he agreed with the proposition that he relied on the advice of his lawyers at that time to complete the licence application as he needed glasses. He said that he followed his Solicitor's instructions as to what to do. Mr Shoostovian agreed with the proposition that he could have checked the application, but he did not, and walked straight to Service NSW at Wynyard and lodged the application and paid the fee. He said that he went to see a lawyer to assist him with the application because of the prior Court matter. Mr Shoostovian was asked that if his lawyer had told him to disclose the Supreme Court convictions on his application would he have followed that advice. Mr Shoostovian said he would have followed that advice.
7. It was put to Mr Shoostovian that his main Solicitor at the time, Mr Compton, had refused to give him advice about whether to disclose the Supreme Court convictions. Mr Shoostovian denied this and denied that the 'advice' was that it was a matter for Mr Shoostovian whether he decided to obtain advice about disclosing those matters. Mr Shoostovian denied the proposition that because Mr Compton had not been provided with the Supreme Court judgment (reasons), then he was unable to advise him about the necessity or otherwise for disclosure. Mr Shoostovian disagreed and stated that the Solicitors had everything, all of his documentation, Liquidators reports, judgments and police records and that he had 'given them everything'.
8. Mr Shoostovian was taken to the judgment of Howie J in the Supreme Court proceedings which was before the Tribunal in the s 58 documents. When asked if he remembered the facts of the case Mr Shoostovian said that he had not read it recently but had read it many times. He acknowledged that his company had taken commissions from clients without letting clients know.
9. Mr Shoostovian agreed that the commissions totalled approximately $700,000.00 in value. It was put to Mr Shoostovian that at that time he had taken steps to thwart Fair Trading's investigation and that this had included destroying documents. It was put to Mr Shoostovian that if Fair Trading had cause to investigate him again then he would act in a similar way and thwart any investigation by destroying documents when placed in a stressful situation. Mr Shoostovian denied this and said that he had learnt his lesson after what he had been through. He said that he 'didn't think that (he) would be doing any sort of conduct like that ever again'.
10. Mr Shoostovian was reminded by the Commissioner's Counsel that one of the remarks from Howie J was that he was concerned that it wasn't a question of if (Mr Shoostovian ) will offend again, but when (he) would offend again. Mr Shoostovian recalled that comment at sentencing.
11. Mr Shoostovian was taken to his affidavit (Exhibit 'A-1') and asked about paragraphs [16] - [20] which concerned the former company being placed in Administration and then Liquidation. Mr Shoostovian said that the company (Save Finance) was placed into voluntary administration because of the Global Financial Crisis (GFC). Counsel suggested to Mr Shoostovian an alternate reason, namely that the company had been living beyond its means and trading whilst insolvent prior to the GFC and being unable to borrow money from banks. When asked whether Save Finance was trading whilst insolvent Mr Shoostovian confirmed in his evidence that it was and that it had been trading whilst insolvent for a number of years. When then asked about the discrepancy between his oral and affidavit evidence Mr Shoostovian in effect denied his earlier evidence and when it was clarified to him, he claimed that he must have misunderstood the questions.
12. It was put to Mr Shoostovian that the company had been losing money since 2004 and that the losses by 31 December 2007 were in excess of $1.8 million and that the Liquidator had formed the view that the Company had been trading whilst insolvent. Mr Shoostovian maintained that the GFC was the reason for Administration and then Liquidation. His evidence being that he seemed to accept that insolvency may have been in the mix, but he attributed the significant issues solely to the impact of the GFC.
13. Mr Shoostovian was asked about the demand by Fair Trading during the liquidation process that the Company repay to customers the $700,000 in illegal commissions but the Liquidator's proposal was 10 cents in the dollar. Fair Trading rejected this offer and as a result put a ban on the Company trading. Mr Shoostovian denied any knowledge of these matters and only recalled a fine. However he denied that the inability to pay the fine was the final basis for liquidation and the Company being wound up. Mr Shoostovian continued to maintain that the cause was the GFC.
14. Mr Shoostovian was asked about a reference to seeking mental health treatment as referred to in his affidavit evidence. He was asked whether he had seen a psychologist in the last 10 years which he denied.
15. Reference was made to [40] of Mr Shoostovian's affidavit and whether the matters deposed there were the basis for the acts which gave rise to the charges. Mr Shoostovian agreed and summarised the situation as follows: The business grew too quickly, he was careless in how he ran the business, there were not enough resources to run the business properly with regards to compliance matters, and personal matters affected his ability to properly respond to issues as they arose.
16. The Commissioner suggested that the offences / breaches and sentences were not imposed due to carelessness but because of matters arising from multiple consumer complaints. When asked how future consumers might feel about assertions that he would take certain protective measures if he was granted a contractors licence (as set out at [54] of his affidavit), Mr Shoostovian agreed that consumers would have to take him at his word.
17. When asked about a Broker Application Form at pg 385 of the exhibit to his affidavit and the discrepancies in some answers to questions (as in when a question is prefaced with 'in the last 10 years' and at other times the words 'have you ever') why he had not disclosed any default judgments against him, Mr Shoostovian said that he had answered truthfully, because there were no judgments in the last 10 years. The default judgement question did not include the phrase 'in the last 10 years'.
18. When asked about why he had indicated in the forms that he had committed no offences whilst the holder of a Real Estate Licence, Mr Shoostovian said that he had committed no offences under that licence, even though he was at the relevant time the holder of such a licence. His position was that he fully disclosed even if some answers might be considered ambiguous on closer scrutiny, and that he had disclosed other matters elsewhere in the documentation.
19. The Tribunal asked a number of questions of Mr Shoostovian consistent with its powers under s 38 of the NCAT Act. These questions related to the material he submitted for the current licence application (which relates to the Tribunal's review). Mr Shoostovian was taken to the various pages on the evidence before the Tribunal and asked to confirm his signature and how certain entries were completed (by hand or typed on computer). Mr Shoostovian said that for some of the process he telephoned Fair Trading and sought advice and assistance. He said that he was very specific over the phone and went through every question with the officer. Mr Shoostovian confirmed to the Tribunal that he completed the 2020 form with his own hand.
20. The Tribunal raised with Mr Shoostovian matters relating to the 2016 NCAT proceedings heard in 2017 before Senior Member Isenberg. The Tribunal inquired as to why Mr Shoostovian sought formal legal assistance in 2016 but not in 2020. Mr Shoostovian's evidence appeared to be that the basis of the 2016 assistance was due to not have his reading glasses with him, whereas in 2020 he had access to his reading glasses. Reference was made to a letter from Prof Coroneo Ophthalmic Surgeon dated 19/10/2015 concerning Mr Shoostovian's history of eye surgery and treatment at pg 339 to the Exhibit to 'A-1'.
21. At the conclusion of the applicant's evidence his Counsel foreshadowed a costs application under s 60 of the NCAT Act for the second day of hearing to examine the former solicitors for Mr Shoostovian from 2016. The Tribunal observed that there was an almost 12 month history to the proceedings prior to this hearing and the basis for that might be relevant to any s-60 consideration, but otherwise this issue was reserved.

Evidence of E Wang

1. Ms Wang Solicitor was questioned about her affidavit (Exhibit 'R-4') on day 2 of the hearing.
2. In cross examination the witness confirmed that she was a Solicitor in 2016 and confirmed her evidence at [8] of her affidavit that she has no recollection of any knowledge about Mr Shoostovian's offences at the time she dealt with him in 2016. She said that 'from what I remember, I do not recall it being disclosed to me', and that 'something so significant would have caused further consideration'.
3. The witness confirmed that she had certified the copies of documents with the notation on page 18 of the s 58 documents by confirming her signature and handwriting. On the entries on the 2016 licence application form at page 9 of the s 58 documents the witness also confirmed that the entries were in her handwriting. She said that she believed that the information would have been obtained directly from Mr Shoostovian.
4. The witness said that a file would have been created and that her charge out rate at the time was between $300 and $350 per hour.
5. The witness was taken to the letter to pages 20-23 of the s-58's on her then employer's letterhead. The witness did not recall seeing this document. In respect of the Tax Invoices now tendered, the witness did not recall seeing those invoices. In respect of whether there were any the file notes the witness stated that it was good practice to make file notes. When asked whether any file notes were made about her engagement with Mr Shoostovian when she finished the matter the witness said that she made as many file notes as she could. (Pg 17 of 'A-3' appears as a file note before the Tribunal).

Evidence of B Compton

1. Mr Compton (who was Ms Wang's principal) gave evidence at the hearing.
2. The witness in cross examination confirmed that he as the Principal of Leverage Solicitors in 2016 and that his rate was approximately $500.00 per hour. The witness confirmed his vision impairment and said that either the paralegal or PA would have helped him with the letter of 22 February 2016 not Ms Wang. (The letter that accompanied the application to Fair Trading in 2016).
3. The witness was asked whether Leverage Solicitors provided legal services to Mr Shoostovian after 22 February 2016 and the witness confirmed that they did.
4. A proposition was put to the witness that Leverage Solicitors were retained by Mr Shoostovian to apply for a Contractor Licence in February 2016. The witness agreed (consistent with the read paragraphs of his affidavit (Exhibit 'R-3') that was the case.
5. The Tribunal notes from the parts of the affidavit that were read that the witness confirms that he knew of the 2009 Supreme Court proceedings but was not instructed to review those proceedings in connection with the licence application, and as such had not reviewed then and had not formed any view about the convictions or whether they needed to be disclosed. Due to his vision impairment he was not practically able to assist with the completing of the application form and delegated this function to Ms Wang. The affidavit refers to instructing Ms Wang not to provide advice or answer any questions just to complete the form as Mr Shoostovian instructs.
6. The Tribunal also notes that prior to the oral evidence of Ms Wang and Mr Compton and exhibits R-2, R-3 and R-4 as well as Mr Shoostovian's exhibit 'A-3' (from Leverage's file produced under summons) there was a lengthy application and determination by the Tribunal as to which aspects of that evidence could be adduced and admitted having regard to s 67 of the NCAT Act. For this reason paragraph [6] of 'R-2', and pages 46, 47 and 48 of 'A-3' were not admitted.

Mr Shoostovian's submissions

1. Mr Shoostovian's representatives made written submissions prior to and after the hearing and brief oral submission at hearing as well as lengthy submissions on the question of privilege and the admissibility of evince as referenced at [64] above.
2. In respect of the substantive application in oral submissions at the beginning of the hearing it was conceded that the offences and prior breaches were serious, but that what stood in Mr Shoostovian's favour was the effluxion of time since July 2009. Significant time had elapsed since the offending behaviour occurred in the early 2000's and Mr Shoostovian had been convicted and sentenced for these matters in 2009. It was submitted that Mr Shoostovian had fully disclosed all matters in the current application even if some of his answers are ambiguous. It was submitted that where full disclosure had been made to Fair Trading elsewhere in the material submitted for the application, that obviated any issues concerning non disclosure.
3. Counsel submitted that Mr Shoostovian sought advice about whether the 2009 conviction needed to be disclosed. On Mr Shoostovian's account he provided a copy of the judgment and asked whether the reasons needed o be disclosed to Fair Trading. It was submitted that Mr Shoostovian denies that Mr Compton said that he would not advise him on whether those matters needed to be disclosed. It was submitted that Mr Shoostovian has given a positive account that he sought advice and relied upon it.
4. It was submitted that Mr Shoostovian gave the Solicitors everything and that he relied upon their advice.
5. In written submissions Mr Shoostovian conceded that he is disqualified from holding a licence under the HB Act because of the operation of s 33A (1) (d) which arises due to his disqualification in October 2009 from holding a Real Estate Licence under the Property Stock and Business Agents Act 2002. It was also conceded that Mr Shoostovian is also disqualified form being involved in the direction, management or conduct of the business of a licensee under that Act permanently.
6. General submissions were made about the notion of fitness and propriety and a person being of good repute. Reference was made to the case of Director General Ministry of Transport v FV (GD) [2008] NSWADTAP 60 at [13] 13 This Tribunal has accepted that the requirements of 'good repute' and 'fitness and propriety' go to different aspects of a person's attributes. 'Repute' denotes the estimation in which a person is held by those who know him, and the wider community. Whereas, the question of whether a person is 'fit and proper' to hold an authority raises the question of the person's intrinsic moral character. 14 It may turn out that a person is held in high esteem by the community but there are issues of intrinsic moral character, or underlying qualities of character, that disqualify the person from being granted a relevant licence or authority, especially when account is taken of the nature of the industry or occupation for which the authority or licence is sought. Equally a person may be held in low esteem, but be, in fact, a person of good intrinsic moral character. (As to the assessment of character, see Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at [9] per Dixon CJ, McTiernan and Webb JJ and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at [13] per Mason CJ, and at [36] per Toohey and Gaudron JJ.)
7. It was submitted that the main practical issue concerning granting the licence would be that Mr Shoostovian would be able to contract with consumers directly.
8. In respect of enlivening the statutory discretion referred to in s 33A (3) of the HBA, Mr Shoostovian submitted that whilst there were no authorities on this issue, when considering the underlying conduct and the objectives of the HB Act, the Tribunal should look at the matters in s 33A (2) concerning triviality of the conduct and the length of time that has passed. It was conceded that the offences and offending were not trivial but submitted that sufficient time had elapsed so that the offences giving rise to the disqualification could be ignored.
9. Reference as made to the case of Edwards v Commissioner for Fair Trading, Department of Finance Services and Innovation [2019] NSWCATAP 208 where the Appeal Panel of the Tribunal found that as almost 13 years had passed, sufficient time had elapsed since the serious offences (claiming $380,000 in false GST receipts) to grant the licence. Counsel set out a compendium of examples from where the Tribunal had considered the passage of time and identified five examples concerning different time frames and different offences. It was submitted that in this regard the case law made it clear that the more serious the offence and underlying conduct the more time must elapse before the Tribunal may ignore the conduct for the purpose of s 33A (1) (d) of the HB Act.
10. A submission was made that 14 years was sufficient time to have elapsed and have Mr Shoostovian reflect on the conduct, and that his affidavit shows not only an acknowledgement of the conduct but also an understanding and insight as to why it occurred and preventative steps that have been taken to ensure that similar conduct does not occur.
11. It was also submitted that Mr Shoostovian is a fit and proper person having regard to the fact that he had returned to work in the financial industry without any issues arising, he has not engaged in any other unlawful behaviour in the intervening period, and he has the knowledge skill and experience as demonstrated by his qualification and referee statements. In respect of honesty Counsel submitted that this would be tested during cross examination.
12. In closing submissions it was submitted that the Tribunal would fall into error applying 'blanket' adverse credit findings against Mr Shoostovian for matters that occurred more than 14 years ago.
13. It was submitted that Mr Shoostovian did not lie or deliberately withhold information from his Solicitor in 2016 and that all documents including the Howie J decision were provided. Any absence of disclosure (not conceded) was not the fault of Mr Shoostovian.
14. It was also submitted that based in Ms Wang's evidence, Mr Shoostovian is the only witness who has a clear recollection of what occurred and as it was important to him, his recollection is accurate and as a result it should be preferred.

Commissioner's submissions

1. In oral submissions prior to receipt of evidence the Commissioner submitted that there were two questions to determine, is Mr Shoostovian a fit and proper person to hold the licence and should the discretion to override the disqualification be exercised.
2. In written submissions the Commissioner referred to the 108 breaches of the Consumer Credit Administration Act 1995 (NSW) for misconduct relating to banking contracts and failures to keep records resulting in convictions on the 108 breaches and a fine of $183,000.00 and the imposition of a two year Good Behaviour Bond.
3. Reference was made to the observations of Justice Howie that Mr Shoostovian had demonstrated little remorse. Reference was also made to the cancellation of the Real Estate Licence which gave rise to the general disqualification from October 2009 and was said to be as a result of 'offences that caused the disqualification were serious and involved a prolonged period of dishonest behaviour, including misleading the regulator'.
4. The Commissioner submitted that the matters relied upon in the review concerning whether or not Mr Shoostovian was a fit and proper person to hold the licence under the HB Act concerned his criminal convictions, a lack of evidence of rehabilitation and previous carelessness in dealing with the regulator. Reliance was placed on the reasoning in the case of McIvor v Commissioner for Fair Trading [2017] NSWCATAD 258 ay [19]: 19. One of the functions of the licensing regime under the Act is to ensure there is public confidence in the home building industry. In McEvoy v Director General of the Department of Fair Trading [2000] NSWLEC 183, the Land and Environment Court refused a person's registration as a valuer on the basis that he was not a fit and proper person. In reaching such a view the Court said: Secondly, the act of registration as a valuer amounts to public certification that the person is an honest in whom confidence can be reposed (in Re Arnold). Both the public and the court must be able to repose confidence in registered valuers and must be able to accept without question their honesty and good character. In cases of this kind greater weight must be given to the public interest and to the need to maintain public confidence in the profession than to the consequences of the imposition of a penalty to the individual (Dad v General Dental Council [2000] UKPC 17; [2000] 1 WLR 1538 at 1534. PC). Entry to a profession which is in the public eye is a privilege which is reserved for those who are of good character (Ex part Davis, Sakellis)."
5. Reference was also made to the Tribunal's observations in Cobar Constructions Pty Ltd v Director General New South Wales Fair Trading [2015] NSWCATOD 67 at [99]: 99. Consistently with the decisions of the High Court in Hughes & Vale Pty Ltd v The State of New South Wales (No 2) and Australian Broadcasting Tribunal -v- Bond and Ors [1990] HCA 33; (1990) 170 CLR 321 the holding of a contractor licence under the Act attests that the holder is a person who will honestly perform his or her role as a contractor: see also Kioussis -v- Director General, Department of Fair Trading [2002] NSWADT 2 at paragraph 69, per Henessy DP. What fit and proper means must be viewed in the light of, "... the activities in which the person is or will be engaged": Re Percival and Australian Securities Commission [1993] AATA 196; (1993) 30 ALD 280, at 290. What is fit and proper will depend on the legislative context and the nature of the particular profession, trade or occupation in question: Re Brennand & Australian Casino Surveillance Authority (1995) 38 ALD 794, at 796 para [41].
6. The Commissioner summarised the circumstances leading up to the prosecution in the Supreme Court concerning Mr Shoostovian's conduct as the sole Director of Save Finance. In respect of the Supreme Court proceedings the Commissioner submitted that consistent with the case of Pobje v Commissioner for Fair Trading, NSW Office of Fair Trading [2007] NSWADT 142 the Court's findings are binding on the Tribunal. 3. I have already found in the course of this proceeding that a number of factual findings made by Sully J are binding on the parties before me and that they are estopped from denying them. There is substantial agreement between the parties as to which findings made by his Honour create estoppels binding on them. Sully J also made findings of law concerning the interpretation of the Home Building Act 1989 which are binding, in a wider sense, as a matter of law.
7. Justice Howie's findings are found at paragraphs 11-29 of the judgment, the factual findings being at paragraphs [11], [12], [13], [18], [19], [20] [25] and [29] below, with comments which His Honour made in reaching his conclusion being found at Paragraphs: p[13], [17], [18] 19], [25] and [27]: 11 The offences committed by the defendant should be considered in the context that these are not the only occasions when he has failed to comply with his obligations under the relevant legislation. This does not mean that the offences are aggravated by that fact or that the defendant is to be punished for his past misbehaviour. But he cannot have these offences considered as lapses in an otherwise blameless career as a finance broker. The offences come in the face of warnings by Fair Trading and undertakings by the defendant. 12 The offences are not technical breaches of regulatory offences. They are examples of deceptive conduct in which persons who were in need of finance were deprived of the full information they required to be able to determine whether or not to enter into loan agreements procured by the defendant. Of course they are not as serious as fraudulent activity found in offences under the Crimes Act. The offending conduct does not make the defendant liable to a prison sentence. 13 I should record my concern that the conduct of the defendant might have amounted to offences under the Crimes Act. For example, it seems to me that the defendant could have been investigated for obtaining a financial advantage by deception in some of these cases. There is little doubt that the defendant's conduct would have been dishonest for the purpose of any offence that he had committed. I feel hamstrung in properly punishing the defendant by the fact that he has been charged with offences under the Act for which he can only be fined, particularly having regard to what I know of his financial situation. I am limited in my ability to protect the public from future offending by the defendant. The defendant's offending in these matters has a complexion about it that is more than simply a failure to fulfil regulatory requirements. However, I make it clear that I am only punishing him for the offences under the Act. 14 The purpose of these offences is the protection of members of the public who are likely to be vulnerable because of a pressing need for finance. The Minister for Fair Trading stated the following in his speech introducing the legislation into the Parliament in April 2003: The proposals in the bill are based on the recommendations of a National Competition Policy review of the Credit (Finance Brokers) Act 1984. The review found that consumers continue to experience some risks in their dealings with finance brokers, and that these risks justify continued regulation of the finance broking industry. The main risk faced by consumers of finance broking services are: lack of broker independence where commissions paid by lenders, which may result in consumers entering into overpriced credit arrangements; consumer loss where brokers commission is paid in advance and the credit is not subsequently obtained; the charging by brokers of excessive, undisclosed, commissions or other fees; unethical conduct whereby consumers are persuaded to borrow larger amounts than needed or to include fraudulent information in credit applications; and difficulty in obtaining redress where consumers have not been provided with a copy of their agreement with the broker. Given these risks, the review concluded that the objectives of the Credit (Finance Brokers) Act remain valid. These objectives are: ensuring that consumers have sufficient information when dealing with finance brokers; reducing the cost of obtaining information from finance brokers and enforcing contracts against finance brokers; and protecting consumers from financial loss................. 15 The review to which the Minister referred considered that there was a benefit in retaining penalties for breaches of the legislation because it provided "a potential benefit to consumers and the economy by discouraging overcharging, misappropriation of monies and other unfair conduct by brokers". I would caution against the use of these offences where the conduct is truly criminal, as it appears on its face to be in some instances in the present case. For example I do not believe that breaches of the legislation should be to protect against "misappropriation of monies". The threat of criminal charges is obviously a greater deterrent than the regulatory charges under the Act. 16 Part 1A of the Act deals with the regulation of finance broking. It is the Part in which the offence provisions referred to above are found. Section 4A is as follows: 4A Object of Part The object of this Part is to provide for the regulation of persons who engage in finance broking so as to ensure that the clients of finance brokers: (a) are given adequate information before entering into finance broking contracts, and (b) are protected from unfair practices engaged in by finance brokers, and (c) have access to a redress mechanism when finance brokers breach the terms of the finance broking contract, engage in unjust conduct or charge excessive commission. 17 Clearly penalties imposed under the Act must have a deterrent effect on persons generally engaged in this type of business activity. In the present case they should also have a personal deterrent effect upon the defendant. As I understand the situation there is no requirement that a finance broker be licensed. Therefore there is apparently nothing to prevent the defendant from undertaking this business under a different company. There is no system of licence or registration so that a serial offender can simply be barred from carrying on this business if he or she is prepared to flout the requirements of the legislation and put members of the public at risk. 18 There is material before me that suggests that the defendant is such a person. There is evidence that he has in the past sought to frustrate Fair Trading by deliberately destroying documents. It may well be the case that this is what has happened here. Again I am not punishing him for that activity, but it cannot be, and was not, asserted on behalf of the defendant that he was simply disorganised in carrying out his business or negligent in overlooking the requirements imposed upon him by the legislation. 19 I know little about the defendant personally. He did not give evidence. He pleaded guilty and that had the utilitarian value that a hearing of about two weeks was not required. There is little to indicate remorse but I am prepared to accept that his pleas saved witnesses, they being ordinary citizens, the time and effort of giving evidence. He has no relevant criminal record but, as I have indicated, these are not isolated lapses. Generally he is of good character otherwise than in the carrying on of his brokering business and in relation to and associated with drink driving matters. I think that the defendant has two standards of integrity in relation to his commercial activities; one outside his business and another within it. 20 The offences resulted in the Company obtaining over $700,000. This does not necessarily represent a loss to the persons who were the subject of the agreements, even though the Company was not entitled to take a fee because of the failure to disclose information. The real harm to the defendant's clients may be in default under the mortgages he brokered. Nor was it all a benefit received personally by the defendant. It is difficult to discern what was the loss to individual members of the community of the defendant's misconduct or what his personal gain. 21 My concern, and I think that of the prosecutor, is that the defendant will offend again if, and when, he is able to do so. He has little, if any, ability to pay fines in view of his apparent financial situation although I do not know the full depth of it. Submissions made by counsel representing him suggest that he will again enter into the business of finance broking on his own behalf. Although it was submitted that there is less likelihood of re-offending because of proper legal advice, I doubt that will be the case. 22 The total of the applicable fines is $770,000. Of course questions of totality arise both in respect of fines relating to transactions with particular individuals where there is more than one charge and the overall totality of his breaches of the Act. 23 The prosecutor submitted that in respect of the breaches of ss 4C(1) and 4C(4) the penalty should be "not less than the average amount of commissions unlawfully obtained" by the Company. In relation to the s 4H(1) offences the prosecutor submitted that the Court should impose the maximum fine. I do not accept that it is appropriate to determine the fine by reference to the amount of commission obtained. It is a penalty provision not a form of restitution of the gains made as a result of conduct in breach of the provisions of the Act. 24 It does not seem to me that there is much assistance to be gained in considering the general purposes of punishment as stated in s 3A of the Crimes (Sentencing Procedure) Act or the aggravating and mitigating factors in s 21A. However, there was one submission by the prosecutor that cannot be sustained. It is said that the offences were committed in breach of a position of trust. I do not believe that there is a position of trust between the defendant and his client; see Suleman v R [2009] NSWCCA 70. Commercial relationships do not usually give rise to a position of trust. But in any event, if there is a position of trust, then all offences under the Act would contain that element so that it is an inherent characteristic of the offences: see R v Elyard [2006] NSWCCA 43. 25 I do not intend to consider each and every one of the charges to determine whether it is in the worst category. They are all generally within that category because each is part of a systematic refusal to comply with the legislation. The particular failure in any particular case is merely a matter of chance, as I have no doubt that the defendant never intended to comply with the provisions of the Act and any suggestion that he was endeavouring to do so was a charade. 26 I intend to take an unusual course but one that I believe will offer the best protection for the public. I intend to fine him for the offences which are breaches of ss 4C(1) and 4C(4). There are 108 such offences. I will dismiss the charges for breaches of s 4H(1) on condition that he enters into good behaviour bonds. There are 28 such offences. I am taking this course in the hope that the defendant may seek to avoid the costs and indignity of coming again before this Court to answer for his misconduct and with the knowledge that I have the power to impose upon him further substantial fines. Without making any threat those matters would warrant a fine close to, if not at, the maximum. 27 I have chosen to split the offences up as I have not because of any view that one is less serious than another but because it is convenient to do so. In the s 4C matters the non-disclosures are apparent, as is the amount of brokerage fee that he received to which he was not entitled. Because he failed to keep records in the other matters the extent of the deceptive conduct is unknown. Although on one view a discharge and bond is no punishment, it is unlikely that any fines I impose will be paid at any time soon. I think that there is a stigma in a bond to be of good behaviour that is not present in the payment of fines. After all fines are imposed for minor motor traffic offences. I hope the imposing of a bond might have some impact to control his misbehaviour. … 29 I wish to make it clear that I am making an order under s 10(1)(b) because I am satisfied in accordance with s 10(2)(b) that it is expedient to release him on a bond. I am not taking into account that the offences are of a trivial nature, because they are not, or the extenuating circumstances in which the offences were committed, because there are none. I am taking this course because it appears to me to be proper to place the defendant under the supervision of this Court in relation to his conduct in this type of activity and it is the only chance, although a slim one, that he might be deterred from similar conduct in the future. Of course I understand that if he breaches the bonds I can but fine him, but that is the only power I presently have.
8. The Commissioner also made submissions on the disqualification issues namely that Mr Shoostovian's licence was cancelled and he was disqualified because he had been found guilty in the previous 10 years of dishonesty offences, was an undischarged bankrupt and was not a fit and proper person to hold a licence.
9. In respect of the 2016 refusal the Commissioner submitted that the Internal Reviewer appropriately determined that his application should be refused as he was a disqualified person and that there was no basis to exercise the discretion positively. In that decision the sentencing remarks of Howie J were referred to and relied upon.
10. In respect of whether Mr Shoostovian was fit and proper to hold the licence the 2016 reviewer found that he was not such a person. Emphasis was placed on the dishonest dealings and financial arrangements and a lack of confidence in Mr Shoostovian's conduct in entering into substantial financial arrangements / contracts and complying with all regulatory requirements of the HB Act.
11. The Commissioner submitted that on the current application a longer period of time to consider whether the disqualification should be lifted was necessary because of the seriousness of the offending behaviour. Reference was made to the case of Hammond v Commissioner for Fair Trading [2020] NSWCATOD 132 where the Tribunal observed at [45] when reviewing the authorities on such matters: 45. In Farah v Director-General, Department of Finance and Services [2013] NSWADT 198, Judicial Member Montgomery listed a number of Tribunal decisions which had dealt with the issue of whether an offence should be ignored on the basis of the passage of time: 86 In Bek v Commissioner for Fair Trading [2004] NSWADT 149 I held the 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. Mr Bek was convicted of "Driver/Rider State False Name or Address" and was fined $300. I agreed that it was an offence at the lower end of the scale and that three and a half years was sufficient to warrant ignoring the offence. 87 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 and that a period of 5 years since the offences were committed was not sufficient time so as to make a determination that the offences should be ignored. She considered that a period of 8 years from the date the offences were committed was the appropriate time given that the offences had occurred in the course of the licensed activity. 88 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. O'Connor DCJ was of the opinion that 2 years was insufficient time to exercise the discretion under section 16(2) of the Act. 89 In Yelland v Commissioner for Fair Trading [2005] NSWADT 293 I was of the view that the 14 months that had passed since Mr Yelland gave false information to police in order to avoid the consequences of his action was not sufficient to warrant ignoring the offence. 90 In Eleter v Director-General, Department of Fair Trading [2002] NSWADT 138 Judicial Member Lees considered that the nearly four and a half years that had passed since Mr Eleter's offence of receiving stolen property was an insufficient period for the discretion to be exercised in Mr Eleter's favour. 91 In Nizhnikov v Commissioner for Fair Trading [2006] NSWADT 284, Judicial Member Handley considered the seriousness of the offence, the time which had elapsed since his conviction, and the fact that he was on a good behaviour bond. The Judicial Member considered that the 15 months since the conviction for two serious offences, of "assault actual bodily harm" was an insufficient period for the discretion to be exercised. 92 In Song v Commissioner for Fair Trading, NSW Office of Fair Trading [2006] NSWADT 218, Judicial Member Molony considered the period of less than two years which had lapsed since Mr Song was convicted of "Goods in personal custody suspected of being stolen" was insufficient. 93 In Hadroj v Director General, Department of Fair Trading [2002] NSWADT 95 Deputy President Hennessy considered the 12 months which had lapsed since Mr Hadroj was convicted of four offences: three counts of goods in custody winch may be reasonably suspected of being stolen or otherwise unlawfully obtained and one count of selling second-hand goods without holding a licence was insufficient to warrant ignoring the offence. 46. As Senior Member Isenberg stated in Salcedo v Commissioner for Fair Trading [2016] NSWCATOD 19 at [53], those cases indicate that "whether or not sufficient time has passed to ignore offences is dependent on the circumstances peculiar to each applicant and there is no one rule which suits all applicants".
12. In the absence of specific case law on this point the Commissioner referred to and relied on the principles of statutory interpretation. Consistent with the observations of the High Court in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 35 at [78] in that the words should be given their ordinary and natural meaning. It was submitted that the Commissioner and the Tribunal have a broad discretion including to ignore the disqualification and that Mr Shoostovian's offences were more serious than the circumstances referred to in Farah.
13. The Commissioner submitted that Mr Shoostovian is not a fit and proper person to hold the licence and referred to the line of cases including Australian Broadcasting Tribunal v Bond 1990 170 CLR (Bond) which referenced that the meaning is being derived from the conduct that the person will or will not be engaged in. Having regard to the nature of the conduct, will the offending behaviour be likely to occur, whether improper conduct has occurred and whether it can be assumed that it cannot occur.
14. Submissions were made concerning the HB Act being a consumer protection Act. Honesty was raised as a relevant consideration and reference made to the case of Hughes and Vale v the State of New South Wales (1995) CLR 127 and the observation that honesty knowledge and ability are significant for the fit and proper test. The Commissioner submitted that this was because a contractor licence under the Act attests that the builder is a person who will honestly perform his or her role as a contractor and that the consumers place their trust and money in builders without this confidence being abused.
15. In closing submissions the Commissioner submitted that the non disclosure of his conviction in the 2016 application was of significance in determining the fit and proper issue and deciding on whether to exercise the discretion in Mr Shoostovian's favour.
16. In respect of the purported disclosure to Ms Wang, it was submitted that the Tribunal should not accept Mr Shoostovian's submission or assertion that he disclosed the past convictions to Ms Wang. This was because such a position would require the Tribunal to accept that Ms Wang was provided with a copy of the judgment but decided not to disclose the information in the application, had not spoken to her supervising Solicitor Mr Compton about the matter, and did not retain a copy of the judgment.
17. In respect of Mr Compton, the Commissioner submitted that there was a conflict in the evidence between him and Mr Shoostovian. Mr Compton's evidence was that he was not instructed to provide advice on the judgment or disclosure of the convictions. Mr Shoostovian's evidence was that he relied on the advice of Mr Compton in the matter (including this issue).
18. Whilst both sets of evidence were consistent with the documents before the Tribunal, the Commissioner submitted that Mr Compton's evidence was impartial and for that reason should be preferred.
19. The Commissioner also submitted that Mr Shoostovian's failure to review the application prior to submission was not reasonable because even if he engaged a Solicitor to prepare it, that did not excuse his obligation to check it before signing and submitting.
20. Whilst this approach may have been excusable for a straightforward matter with no consequences other than a requisition, the Commissioner submitted that this occurred with Mr Shoostovian having full knowledge of the backdrop of having been: (a) convicted of 108 breaches of the Consumer Credit Administration Act 1995 (NSW) , and (b) being permanently disqualified from holding a real estate licence.
21. The Commissioner submitted that there was no urgency in lodging the application and that Mr Shoostovian had ample opportunity to check that everything was disclosed. It was submitted that at the very least this evidence demonstrates that Mr Shoostovian is careless when dealing with the regulatory authority.
22. In closing the Commissioner maintained their position that (a) Mr Shoostovian is not currently a fit and proper person to hold the licence applied for, and (b) as a result there is no basis to exercise the discretion to override the disqualification.

Consideration

1. In respect of the term 'fit and proper' I note the earlier references above to the lead case of Hughes and Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28. At paragraph 9 the Court sets out the considerations which make up the meaning of the expression. Dixon CJ, McTiernan and Webb JJ said at paragraph 9 that: 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.
2. The Tribunal was also taken to the case of Australian Broadcasting Tribunal v Bond [1990] HCA 33 where Toohey and Gaudron JJ at paragraph 36 of the decision addressed the issue. 36. 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. Both Hughes and Vale and Bond were referred to by parties in submissions during the proceedings.
3. I have carefully considered all of the material submitted by the parties in these proceedings. As observed many of the issues are conceded between the parties and are to that extent uncontentious. Qualifications and experience arte not in dispute.
4. One issue that remained controversial related to the fines imposed on Mr Shoostovian and whether anything adverse should turn on his character concerning the current fine balance. Mr Shoostovian's evidence was that there were no fines or other charges due to the Crown which remained outstanding. Exhibit A-2 was tendered which included an email dated 11 November 2020 which included correspondence from the SDRO dated 10 November 2020 advising that Mr Shoostovian's current balance was '$0.00' as at that day.
5. Another email in ('A-2') concerned a response from NSW Courts Service Centre of 11 November 2020 which stated: As requested, after checking our system there are no outstanding judgments or fines in your name with the Supreme Court of NSW.
6. A further email dated 19 November 2020 from Revenue NSW stated: A search of our records show that you have NO outstanding matters as of today [sic] date, 19 November 2020 these include parking fines, littering fines, Driver Demerit Point fines, animal fines or Court Fine Enforcement Orders, we have no access to any possible matters that may be held with the Courts.
7. It was suggested that the evidence established that Mr Shoostovian had not settled the fines but that they had been captured in his bankruptcy petition by being included in the proof of debt. Whilst the legal position was correctly characterised that Mr Shoostovian had no debts owing to the Crown, as a matter of fact there was also a lack of evidence that he had paid the fines, but rather that he no longer had any financial liability to the Crown.
8. In the earlier proceedings before the Tribunal (2016/00378832) on 11 July 2017 during cross examination and questions by the Tribunal the following matters are canvassed:

• At page 70 of the Transcript - $1.2 million is owned to consumers
• At Page 74 of the Transcript - no attempt to make any repayments to former customers
• At page 76 of the Transcript - NSW Fair Trading listed as a creditor in the sum of $190,000.00 in the second report to creditors by the Trustee in Bankruptcy for Mr Shoostovian.

1. It is clear from the totality of this evidence that from a financial liability perspective Mr Shoostovian was able to avoid making any payments in respect of his liabilities arising under the breaches of the Consumer Credit Administration Act 1995 (NSW) which include fines and repayment amounts. Mr Shoostovian's Counsel did make submission at the conclusion of his evidence that more recently (in respect of the current licence application) Mr Shoostovian took steps to ascertain his liability and possibly meet it, the evidence was that any previous liability was now extinguished (Exhibit A-2).
2. Having reviewed the sections of the Transcript provided in respect of the 2017 hearing and day 1 of this hearing, it is difficult to actually understand Mr Shoostovian's specific evidence in respect of using lawyers to assist with his forms in 2016, and not using lawyers to assist with the current process as commenced between Mr Shoostovian and Fair Trading in 2020. Whilst his evidence is clearly at odds with aspects of the evidence of his former lawyers it remains unclear to the Tribunal as to why he did engage lawyers in 2016 and not in 2020. At it's highest it appears that in 2016 Mr Shoostovian engaged the assistance of legal practitioners because of his vision issues and needing assistance in completing the forms in that regard, whereas in 2020 his vision aids were sufficient to enable him to complete the task himself. It seems that he used solicitors because he did not have his glasses with him, or that there was some underlying vision issue not fully established in the exhibit to his affidavit. The evidence records that this issue was the most consistent answer from Mr Shoostovian on this point during his testimony at hearing.
3. Irrespective of these matters it is clear that Mr Shoostovian did not disclose his Supreme Court convictions in his 2016 initial application for the licence. He maintains that this responsibility rests with his lawyers where the evidence of his lawyers at its highest is that they were never instructed to provide advice on the issue of the disclosure. On my assessment it would appear that the evidence of the lawyers has some weight as there could be no alternate explanation for why they would give evidence that they were not instructed to advise. If they were instructed and their legal position was that the convictions did not require disclosure that would explain the situation of the non disclosure in a logical manner. But that was not their evidence, as they did not provide advice on disclosure so in that regard, they have no evidence to explain the non disclosure. I observe that during the hearing before me Mr Shoostovian admitted in cross examination that he could have checked the documents himself (see [38] above), but did not and walked straight to Service NSW to lodge them. I note that evidence was given before that of Ms Wang and Mr Compton.
4. Whilst the Commissioner submits that the 2016/2017 proceedings were withdrawn by Mr Shoostovian to avoid his lawyers being called to give evidence that would expose a lie by him, Mr Shoostovian denies this was the case. His evidence was that those proceedings were withdrawn for what he describes as 'personal reasons'. No other explanation was provided to the Tribunal.

Costs

1. Mr Shoostovian foreshadowed an application for costs necessitated by the Commissioner's desire to press on with day two of the hearing and call the former Solicitors. In these proceedings s 60 of the NCAT Act would apply which only allows for an order for costs in special circumstances. The request to call the further witnesses was managed in such a manner that in my view there was no lack of procedural fairness to Mr Shoostovian. Sufficient notice was eventually given and the parties were on notice at least from the morning of day 1 of the hearing that the application to adduce further evidence would be made.
2. Whilst it is clear that both parties costs are greater because of the additional witnesses, having regard to the provisions of s - 60 my preliminary view is that no order for costs should be granted. However I make no finding at this stage and I will allow the applicant to file and serve submissions within 14 days of publication of these reasons should he wish to pursue this issue with legal argument other then the brief oral application. If that eventuates the respondent will have 14 days to respond and in the absence of any submission to the contrary the matter will be decided on the papers by the Tribunal without a further hearing.

Conclusion

1. For the reasons set out above, because of the two findings that I have made at [129] and [132] the Commissioner's decision that Mr Shoostovian is not a fit and proper person pursuant to section 20 (1A) of the HB Act will be affirmed.
2. The correct and preferable decision will be to affirm the Commissioner's decision to refuse the Licence application.

Orders 1. The decision of the respondent is affirmed. 2. Any submission by the applicant for costs is to be filed and served within 14 days of publication of these reasons.

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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 August 2022