Lisimcol Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 2

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lisimcol Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 2 Hearing dates: 28 April 2022 and 1 June 2022 Date of orders: 9 January 2023 Decision date: 09 January 2023 Jurisdiction: Occupational Division Before: C Mulvey, Senior Member Decision: The decision under review is affirmed. Catchwords: LICENSING – real estate agent – failure to lodge trust account – breach of s 111 Property and Stock Agents Act 2002 – ss 191 and 192 Property and Stock Agents Act 2002 – reprimand – adequacy of penalty Legislation Cited: Administrative Decisions Review Act 1997 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: Lisimcol Pty Ltd (Applicant) Commissioner for Fair Trading (Respondent) Representation: Mr C Bice (Director) (Applicant) Legal, Corporate Services, Department of Customer Service (Respondent) File Number(s): 2022/00033024 Publication restriction: None

REASONS FOR DECISION

Introduction 1. The Applicant, Lisimcol Pty Ltd, holds a real estate licence that was issued on 1 December 2018. The directors of the Applicant are Mr Colin Bice and Ms Lisa Borstel. Ms Borstel is the licensee in charge. 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'). A notice (the Notice to Show Cause or NTSC) was issued by the Respondent inviting the Applicant to show cause as to why disciplinary action should not be taken against it for that failure. Submissions were required to the NTSC by 26 July 2021. That same day, a notice to suspend was simultaneously issued on the Applicant stating that Property Licence Number 10080410 was suspended from 9 August 2021 ('Notice to Suspend'). 3. A number of submissions were made by Mr Bice on behalf of the Applicant in response to the NTSC. The auditor provided the completed 2020 auditor's report on behalf of the Applicant and in it declared that he had not been provided with the records and documents for the trust account until 12 July 2021. 4. On 1 December 2021, the Delegate of the Secretary established the ground on which disciplinary action could be taken against the Applicant under s 191(a) of the PSA Act, where the licensee holder contravened a provision of the Act, namely, s 111(1) of the PSA Act. The Delegate on that date determined to take disciplinary action against the Applicant under s 192 of the PSA Act in the form of a reprimand and a $5,500 fine. 5. On 29 December 2021, the Applicant sought internal review under s 53 of the Administrative Decisions Review Act 1997 ('ADR Act'). 6. On 21 January 2022, the decision was affirmed on internal review. The Applicant has applied to the Tribunal for external review of the decision. 7. The Applicant contends that the reasons why the trust account ending in number xx191 was not audited, was because of a 'computer glitch' in the respondent's system and the auditor, Mr Watson, overlooked a late notice request for the account to be audited.