Cumberland Real Estate Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 99

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cumberland Real Estate Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 99 Hearing dates: 9 May 2022 Date of orders: 6 September 2022 Decision date: 06 September 2022 Jurisdiction: Occupational Division Before: K Ransome, Senior Member Decision: (1) The name of the applicant is amended to Cumberland Real Estate Pty Ltd. (2) The decision under review is set aside. (3) The decision is made to take no further action. Catchwords: ADMINISTRATIVE REVIEW – real estate licensee – failure to audit trust account – disciplinary action – exercise of discretion – relevant factors Legislation Cited: Administrative Decisions Review Act 1997 Property and Stock Agents Act 2002 Cases Cited: Amazing T Investment Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 6 Option Realty Pty Ltd v Commissioner for Fair Trading [2022] NSWCATOD 27 Category: Principal judgment Parties: Cumberland Real Estate Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Counsel: A Douglas-Baker (Respondent)

Solicitors: R Hurley (Director)(Applicant) Department of Customer Service (Respondent) File Number(s): 2022/00016155 Publication restriction: Nil

REASONS FOR DECISION 1. Cumberland Real Estate Pty Ltd holds a corporation real estate licence issued on 21 March 2002. Robert Hurley and Adam Denina are the directors of Cumberland Real Estate. Mr Hurley (known as Mark Hurley) has been the Licensee in Charge of Cumberland Real Estate since 8 October 2011. Cumberland Real Estate operates a number of trust accounts. 2. It is a requirement of s 111 of the Property and Stock Agents Act 2002 that a person who is a licensee must, within three months after 30 June each year (or within such other period as fixed by the Commissioner for Fair Trading), cause the records and documents relating to any money held in a trust account during the period to be audited. For the 2019-2020 period, due to the impacts of COVID-19, the Commissioner for Fair Trading extended the trust account audit period to 31 December 2020. Notice of the extension of time was posted on the NSW Fair Trading website. On 27 November 2020 NSW Fair Trading sent a generic email to all licence holders who were required to submit a trust account audit notifying them of the deadline of 31 December 2020. 3. At the time, Cumberland Real Estate operated four trust accounts. Cumberland Real Estate submitted audits by the due date. On 9 February 2021 an officer from NSW Fair Trading sent an email to Cumberland Real Estate advising that an audit had not been submitted for one trust account (account number ending in 59) ("the 59 account"). The email advised that the auditors portal would re-open between 15 February 2021 and 31 March 2021 for the submission of late 2020 audits. The audit for the 59 account was not submitted by 31 March 2021. 4. On 21 June 2021 NSW Fair Trading sent a Notice to Suspend and a Notice to Show Cause to Cumberland Real Estate. The Notice to Suspend was in relation to the corporate licence held by Cumberland Real Estate. The Notice stated that the licence would be suspended from 19 July 2021. However, if the trust account audit was returned no later than 5 July 2021, the suspension would not take effect. Cumberland Real Estate was also invited under the Notice to Show Cause to show cause by 5:00 pm on 5 July 2021 as to why disciplinary action should not be taken against it. 5. On 19 July 2021 the corporate licence was suspended. The suspension was removed on 20 July 2021 when the audit for the 59 account was received by NSW Fair Trading. On 12 November 2021 the Commissioner for Fair Trading made a decision to take the following disciplinary action against Cumberland Real Estate for a contravention of a provision of the Property and Stock Agents Act: 1. to reprimand Cumberland Real Estate; and 2. to require Cumberland Real Estate to pay a penalty of $5,500. 1. That decision was affirmed on internal review on 22 December 2021. Cumberland Real Estate then sought administrative review of the disciplinary decision by this Tribunal under the Administrative Decisions Review Act 1997. 2. The application to the Tribunal was lodged in the name of Robert Hurley, a director of the company and licensee in charge. The correct applicant against whom disciplinary action was taken is in fact the company and the applicant's name is therefore amended to Cumberland Real Estate Pty Ltd.