Option Realty Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 27

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Option Realty Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 27 Hearing dates: 22 February 2022 Date of orders: 2 March 2022 Decision date: 02 March 2022 Jurisdiction: Occupational Division Before: S Montgomery, Senior Member Decision: The decision under review is affirmed. Catchwords: LICENSING – real estate agent – disciplinary proceedings – failure to provide audit – conduct conceded – penalty only issue Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Property and Stock Agents Act 2002 (NSW) Cases Cited: Amazing T Investment Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 6 McDonald v Director General of Social Security (1984) 1FCR 353 Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10 Shi v Migration Agents Registration Authority [2008] HCA 31. Texts Cited: None cited Category: Principal judgment Parties: Option Realty Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Solicitors: Applicant (Self-Represented) Department of Customer Service (Respondent) File Number(s): 2021/00333331 Publication restriction: Nil

Reasons for Decision

Introduction 1. The Applicant, Option Realty Pty Ltd, holds a real estate licence that was issued in September 2016. The directors of the Applicant are Ms Shengnan Qian and Mr Howard Hao Ting Cao. 2. During the 2019/2020 financial year the Applicant operated a trust account but it failed to lodge an audit of the trust account by 31 December 2020, as required under the Property and Stock Agents Act 2002 (NSW) (the PSA Act). The Respondent issued a notice (the Notice to Show Cause or NTSC) inviting the Applicant to show cause as to why disciplinary action should not be taken against it for that failure. When the Applicant did not respond to the NTSC, a delegate of the Respondent determined to reprimand the Applicant and to require the Applicant to pay, as a monetary penalty, an amount of $8,250. 3. That decision was affirmed on internal review. The Applicant has applied to the Tribunal for external review of the decision.