Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Commissioner of Fair Trading v PSMG Pty Ltd [2025] NSWCATAP 34 Hearing dates: 16 December 2024 Date of orders: 18 February 2025 Decision date: 18 February 2025 Jurisdiction: Appeal Panel Before: Balla ADCJ, Principal Member P H Molony, Senior Member Decision: (1) Leave to appeal granted. (2) Appeal Allowed. (3) The decision of the Tribunal made on 5 August 2024 is set aside and, in its place, the following order is made: "The decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, licence number 1688934 and Whitney Hong Wang, licence number 1092361 ("the licences") are stayed; and for all purposes the licences are to be treated as on foot from 22 July 2024 until further order of the Tribunal." Catchwords: ADMINISTRATIVE LAW – appeal against decision to stay of decision to cancel strata management corporate and individual licences under the Property and Stock Agents Act 2002 – whether Tribunal had regard to mandatory consideration under s 60(3) of the Administrative Decisions Review Act 1997 – effect of appointment of manager pursuant to s 126 of the Property and Stock Agents Act 2002 on assessment of public interest – role of manager. APPEAL – interlocutory appeal – leave granted due to importance of issues going to public interest and public administration. Legislation Cited: Administrative Decisions Review Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Interpretation Act 1987 (NSW) Property and Stock Agents Act 2002 (NSW) Strata Schemes Management Act 2015 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Property and Stock Agents Regulation 2014 (NSW) (Repealed) Cases Cited: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, (1981) 35 ALR 625 Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 Brown v Tasmania [2017] HCA 43 506 CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 Craig v South Australia (1995) 184 CLR 163 Ex parte Yuco Pty Ltd [1978] Qd R 235 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Florida Kitchen Centre Pty Limited v Keith [2016] NSWCATAP 54 FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 Kudrynski v Orange City Council [2024] NSWCA 33 Metropolitan Water Board v. Marylebone Assessment Committee [1923] 1 K.B. 86 Niemann v Electronic Industries Ltd [1978] VR 431 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 R v Holmes; Ex parte Altona Petrochemical Co Ltd (1972) 126 CLR 529 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 Tom v Commissioner of Fair Trading [2022] NSWCATOD 130 Texts Cited: NSW Hansard, Legislative Assembly, 6 December 2001 Category: Principal judgment Parties: Commissioner of Fair Trading (Appellant) PSMG Pty Ltd (First Respondent) Whitney Hong Wang (Second Respondent) Representation: Counsel: A Douglas-Baker (Appellant) J Bannerman (Solicitor for Respondents) Solicitors: Department of Customer Service – Legal (Fair Trading) (Appellant) Bannermans Lawyers (Respondents) File Number(s): 2024/00306910 Publication restriction: None Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: [2024] NSWCATOD 117 Date of Decision: 5 August 2024 Before: K Robinson, Senior Member File Number(s): 2024/00273415 reasons for decision Introduction. 1. PSMG Pty Ltd (PSMG) held a corporation licence under the Property and Stock Agents Act 2002 (NSW) (the PSA Act) under which it carried on business as a strata managing agent. At all relevant times, its sole director and licensee in charge was Mr Whitney Hong Wang (Mr Wang), who held a class 1 licence under the PSA Act. Collectively, PSMG and Mr Wang are referred to in these reasons as the respondents. 2. On 22 July 2024 the Commissioner of Fair Trading (the administrator) made decisions to cancel the licences held by the respondents under the PSA Act. Each of them was also reprimanded, and disqualified from holding a licence for 10 years as part of those decisions (the administrative decisions). 3. On 25 July 2024 the respondents applied to this Tribunal for review of the administrative decisions under the Administrative Decisions Review Act 1987 (NSW) (the ADR Act). They also sought a stay of the administrative decision (the stay application) under s 60 of the ADR Act. 4. On 26 July 2024 the administrator appointed a manager to PSMG's business, with effect from 29 July 2024 under s 126(1)(b) of the PSA Act because of its licence cancellation. 5. Also, on 26 July 2024, the Tribunal made an urgent, interim order on the stay application, pending further hearing on 1 August 2024, to the effect that: The Decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, license number 1688934 and Whitney Hong Wang, licence number 1092361, for all purposes are treated as on foot from 22 July 2024 until 5pm on 1 August or until further order of the Tribunal. 1. On 1 August 2024 Senior Member Robinson (as she then was) heard the stay application. Both parties were represented. While the member reserved her decision, the stay order was amended, so that it remained in force, to read: The Decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, license number 1688934 and Whitney Hong Wang, licence number 1092361, for all purposes are treated as on foot from 22 July 2024 until further order of the Tribunal. 1. On 5 August 2024 the Tribunal published its decision in respect of the stay application, PSMG Pty Ltd v Commissioner for Fair Trading [2024] NSWCATOD 117, and made the following order: The decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, license number 1688934 and Whitney Hong Wang, licence number 1092361, for all purposes are treated as on foot from 22 July 2024 until further order of the Tribunal. 1. It is that decision (the decision) which the administration has now appealed by a notice of appeal filed on 19 August 2024, and subsequently amended by an amended notice of appeal filed on 11 September 2024. It is uncontested that the appeal was made within the time required by rule 25(1) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the NCAT Rules). The administrator seeks leave to appeal the decision as an interlocutory decision and relies on errors of law, both as to the form of the Tribunal's order and in the Tribunal's decision-making. The appeal is opposed by the respondents, as is the granting of leave to appeal. 2. The appeal was listed before us on 16 December 2024 when both parties were represented. We heard their oral submissions before reserving our decision. 3. As will emerge from a reading of the discussion below, we have decided to grant leave to appeal. We have also decided to allow the appeal because of the presence of a number of errors of law in the decision which materially affected the Tribunal's understanding and construction of the applicable legislative regime, relating to the appointment of managers under the PSA Act. 4. We also agree with parties that there is an error in the order as formulated by the Tribunal, which requires correction. 5. We have reconsidered the stay application. We have reached the conclusion that a stay should be granted and the consequences of the cancellations placed in abeyance, pending the outcome of the respondents' administrative review application. The result is that the order made by the Tribunal on 5 August 2024 will be set aside on appeal and in its place a stay order made in the following form: The decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, licence number 1688934 and Whitney Hong Wang, licence number 1092361 ("the licences") are stayed; and for all purposes the licences are to be treated as on foot from 22 July 2024 until further order of the Tribunal. 1. Despite the result of the appeal being similar to the appealed order, we considered that questions of considerable importance to the public interest and to public administration were raised by the appeal. These concern the interaction between the appointment of managers under the PSA Act and administrative reviews of decisions to cancel licences under that Act. They were raised for consideration for the first time in this case and merited the granting of leave to appeal. Material before the Appeal Panel. 1. In considering this appeal we had the following material before us: 1. From the administrator: 1. Notice of Appeal received 19 August 2024 with attachments. 2. Amended notice of appeal received 11 September 2024 with attachments. 3. Appellant's outline of submissions received10 October 2024 (AS). 4. Appellant's submission in reply received 5 December 2024 (AR). 5. Appellant's bundle of documents in three volumes with pages numbered 1 – 942 (AB). 6. Affidavit of Aiman El-Roubaei affirmed 4 December 2024. 1. From the respondents: 1. Reply to appeal dated 3 September 2024. 2. Respondents' submissions with attachments received 20 November 2024 (RS). 1. The decision. 2. The original stay application dated 25 July 2024 with attachments. 3. Procedural orders made by the appeal panel before hearing the appeal. Scope and Nature of Appeals. 1. Section 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) states: "Any internal appeal may be made: (a) in the case of an interlocutory decision of the Tribunal at first instance—with the leave of the Appeal Panel, and (b) in the case of any other kind of decision (including an ancillary decision) of the Tribunal at first instance—as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds." 1. A question of law may include, not only an error in ascertaining the legal principle or in applying it to the facts of the case, but also taking into account an irrelevant consideration or not having regard to a relevant consideration. This includes not making a finding on central issue that is required to be made out in order to claim an entitlement to relief: see CEO of Customs v AMI Toyota Ltd (2000) 102 FCR 578 (Full Fed Ct), [2000] FCA 1343 at [45], applying the statement of principle in Craig v South Australia (1995) 184 CLR 163 at 179. 2. An appellant to an internal appeal brought under s 80(2)(b) of the NCAT Act must identify with precision a question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13]. Whether a question is one of law must be approached as a matter of substance: Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; [2015] FCAFC 92 at [62](6), [94], [203]; Kudrynski v Orange City Council [2024] NSWCA 33 at [50]. 3. Each such question must be a pure question of law (adopting what was said in Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Cobar) at [44], [49]; and Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40 at [71], albeit in relation to different statutory provisions). In Cobar at [109] Bathurst CJ and Bell P (as the Chief Justice then was) said, with Garling, Johnson and Lonergan JJ agreeing: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law.' They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts." 1. Examples of pure questions of law include: 1. Denial of procedural fairness (Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 at [13](4)); FVA v Commissioner for Police, NSW Police Force [2024] NSWCATAP 127 at [83]-[84]). 2. A constructive failure to exercise jurisdiction, which includes the failure to consider and address a material issue raised by a party in the proceedings that is within the jurisdiction of the Tribunal to determine (Alexandria Landfill Pty Ltd v Transport for NSW (2020) 103 NSWLR 479; [2020] NSWCA 165 at [8]-[12] and [413]). This category of error also includes a failure by the Tribunal to engage with a clearly articulated argument put to it. 3. Acting on the application of the wrong legal principle which materially affected the outcome (Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [38]-[53]). 4. No evidence to support a factual finding (Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 23 at [91]) 1. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting the leading case of Collins v Urban [2014] NSWCATAP 17. It is only if the decision is affected by sufficient doubt, to warrant its reconsideration on appeal, that leave will be granted. Usually, it is appropriate to grant leave where there is an issue of principle, a question of public importance or an injustice which is reasonably clear, and beyond what is merely arguable: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597 at [28]. As explained in Collins v Urban at [84], it is not sufficient merely to show that the Tribunal below was arguably wrong or that there was a bona fide challenge to an issue of fact. The grounds of appeal. 1. The administrator's amended grounds of appeal raise the following questions of law for consideration. 1. Whether the Tribunal applied the wrong test to determine whether any orders affecting the operation of the administrative decision should be made under s 60(2) of the ADR Act? 2. Whether the Tribunal failed have proper regard to the mandatory considerations set out in s 60(3)(b) and (c) of the ADR Act? 3. Whether the Tribunal erred by purporting to exercise jurisdiction to review the validity and effectiveness of the appointment of a manager under s 126(l)(b) of the PSA Act to PSMG's business? 4. Whether the Tribunal took into account irrelevant considerations concerning the appointment of a manager to PSMG's business in making the decision? Should leave to appeal an interlocutory decision be granted? 1. A decision to make a stay order under s 60 of the ADR Act is an interlocutory decision: see par (a) of the definition of interlocutory decision in s 4 of the NCAT Act. Leave is therefore required to appeal, even though the administrator relies on questions of law only. 2. With respect to leave to appeal an interlocutory decision the Appeal Panel in Commissioner of Police, New South Wales Police Force v Fine [2014] NSWCATAP 24 (Fine) explained, at [19]: 19 It is settled law that leave to appeal against an interlocutory decision is reserved for cases with special features warranting appellate review. The fact that the statute imposes a leave requirement makes it clear that such appeals are not to be brought as a matter of routine: Niemann v Electronic Industries Ltd [1978] VR 431 at 436. The High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177 acknowledged, referring to the often cited passage of Sir Frederick Jordan in In re the Will of Gilbert, that "a tight rein" had to be kept on interlocutory appeals if all exercises of discretion in interlocutory applications were not to be transferred to a court of appeal. Nonetheless, the High Court also held that it was unnecessary and indeed unwise to lay down rigid and exhaustive criteria, and specifically stated that the requirement for an error of principle and a risk of substantial injustice were not cumulative. Of the same mind in this latter regard was the Victorian Full Court in Niemann, where their Honours pointed out that if the appellate court were expected to say in all cases that the decision below was clearly wrong and that substantial injustice would follow if it went undisturbed, "leave would never be granted by the primary judge" ([1978] VR at 441). The Full Court considered that the use of the word "wrong" in this context was itself misguided and that the requirement would be better expressed as "attended with sufficient doubt". 1. In Florida Kitchen Centre Pty Limited v Keith [2016] NSWCATAP 54 the Appeal Panel commented that: 28. The courts have made it clear that where the statute, in this case the Civil and Administrative Tribunal Act, imposes a leave requirement, such appeals are not to be brought as a matter of routine. While it is unnecessary and unwise to lay down rigid and exhaustive criteria, there is a general requirement that there be an error of principle and a risk of substantial injustice if leave were not granted. 1. In Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 the Appeal Panel summarised the position: 1 As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: 2 It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; 3 However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; 4 Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; 5 Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; 6 There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; 7. Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; 8 In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); 9 Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; 10 Lastly, subject to the above, the matters set out in Collins at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. 1. In submissions opposing the granting of leave to appeal to the administrator, the respondents submitted that in order to grant leave two elements had to be met (RS12): A. The decision was wrong or, at the very least, raised sufficient doubt to justify leave being leave granted to appeal the decision; and B. If the decision was not reversed, there would be substantial injustice caused to the party seeking leave. 1. In making that submission the respondents relied on the decision of McInerney J in Niemann v Electronic Industries Ltd [1978] VR 431, where his Honour said, with respect to granting leave to appeal, that, at 431: In most, but not necessarily all such cases, substantial injustice will result if the judgment is allowed to stand. 1. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, (1981) 35 ALR 625 at 629 the majority of the High Court (Gibbs CJ, Aickin, Wilson, and Brennan JJ) said: An interlocutory order for an injunction is a matter of practice and procedure: see McHarg v Universal Stock Exchange Ltd [1895] 2 QB 81 at 82 ; Minister for Army v Parbury Henty and Co Pty Ltd (1945) 70 CLR 459 at 489 ; White v White [1947] VLR 434 at 438 . Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v Electronic Industries Ltd [1978] VR 431 at 440 ; on the other hand, De Mestre v A D Hunter Pty Ltd (1952) 77 WN (NSW) 143 at 146 . For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in Re Will of F B Gilbert (deceased) (1946) 46 SR (NSW) 318 at 323 : "… I am of opinion that, … there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal": see also Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 ; Dougherty v Chandler (1946) 46 SR (NSW) 370 at 374 . It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration. 1. As a consequence, we reject the respondents' submissions and agree with the conclusion of the Appeal Panel in Fine that the requirement for an error of principle and a risk of substantial injustice are "not cumulative". 2. The administrator argued that leave should be granted because the appeal raises important and novel questions concerning the interaction of the disciplinary processes established by the PSA Act, including administrative review under the ARD Act, with the provisions of Division 2 of Part 9 of the PSA Act (s 126 to 137) relating to the appointment of managers to licensee's businesses, upon the cancellation or suspension of their licences. These were "issues of principle, questions of public importance or matters of administration or policy which might have general application" which the administrator, as the regulator responsible for the discipline and regulation of licensees under the PSA Act, had a vital interest in clarifying. 3. In their submission opposing leave to appeal the respondents: 1. Argued that no injustice would flow to the administrator if leave to appeal were refused. For reasons already given, we do not accept the submission that the administrator must necessarily demonstrate that it will suffer a substantial injustice to obtain leave to appeal an interlocutory decision. 2. Restated the arguments of law and fact they made to the Tribunal below - including reasserting the entirety of their written submissions - some of which form the subject of the questions of law which the administrator now seeks leave to argue on appeal. This served to emphasise the significant differences between the parties relating to the proper interpretation and construction of the provisions of the PSA Act concerning the appointment of managers. 3. Did not address the administrator's arguments that the appeal raised issue of principle and questions important to public administration. 1. There are no decisions of a Court or Tribunal relating to the administrator's use of the power to appoint a manager to a licensee's business under s 126 of the PSA Act, and its interaction with the stay provisions of the ADR Act, following the cancellation or suspension of a licence. We accept that the implications of the decision, which the administrator argues is affected by errors of law, if followed, may be significant to the future administration of the PSA Act following the cancellation or suspension of licences. They raise issues of substance concerning the protection of the public interest in ensuring proper and adequate regulation of licensed agents. While we acknowledge the principle that restraint should be exercised in granting leave to appeal interlocutory decision, in the circumstances, we decided to grant the administrator leave to appeal. We did so noting that whatever conclusion we reached on the appeal, is unlikely to affect the hearing of the administrative review. It will address the cancellation decisions, not the stay and the questions raised by it. 2. With respect to the form of the order made by the Tribunal, we noted that in written submissions both parties agreed that it required correction and about how it should be corrected. At the commencement of the hearing, we endeavoured to obtain the parties consent to our ordering the proposed amendment, but were unable to obtain unconditional consent from both parties to such an amendment. The order in its current form is an obvious attempt to comply with the comments about s 60 orders, made by the Court of Appeal in AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS) at [105], but one which has failed. It is unclear. While we would not grant leave to correct it only, we will take the opportunity offered by our grant of leave to make the necessary amendments, as agreed in submissions, so that it is clear. Relevant legislation. 1. Section 3 of the PSA Act contains the following relevant definitions: agent means— … (c) a strata managing agent. licensee means the holder of a licence under this Act. licensee in charge—means the holder of a class 1 licence employed under the Act, section 31 to be in charge of a business. Tribunal means the Civil and Administrative Tribunal. 1. Section 3B provides that: (1) A person is a strata managing agent for the purposes of this Act if the person (whether or not the person carries on any other business), for reward (whether monetary or otherwise), exercises— (a) any function of an owners corporation, or (b) any function of an association, or (c) any other function that is prescribed by the regulations for the purposes of this definition. … 1. Section 8 prohibits unlicensed people form acting as or carrying on business as "a strata managing agent, unless the person is the holder of a strata managing agent's licence." It includes a prohibition against the recovery of any commission, fee, gain or reward for any service performed by unlicenced individuals. 2. Section 9 applies to corporate licences. It provides that: (1) A corporation must not act as or carry on the business of (or advertise, notify or state that the corporation acts as or carries on the business of or is willing to act as or carry on the business of) an agent unless the corporation holds a corporation licence. Maximum penalty—200 penalty units. (2) A corporation is not entitled to bring any proceeding in any court to recover any commission, fee, gain or reward for any service performed by the corporation as an agent unless the corporation was the holder of a corporation licence at the time of performing the service. 1. Section 31 then requires that a corporate licence holder "must employ an individual (who holds a class 1 licence of a kind that would authorise the individual to carry on that business) to be in charge of that business." 2. In this case there is no dispute that Mr Wang holds a class 1 licence and that PSMG, the holder of a corporate licence, employed him as agent in charge of its business. As such, it was Mr Wang's duty to supervise PSMG's business, including the place of business, its employees, its procedures and the conduct of the business: see s 32. 3. Part 12 of the PSA Act, (s 191 to s 203) is concerned with, "Complaints and disciplinary action". Section 191 sets out the grounds upon which disciplinary action can be taken against a licence holder. The types of disciplinary action are specified in s 192(1), which relevantly include: (f) suspend the person's licence or certificate of registration for a period that does not exceed the unexpired term of the licence …, (g) cancel the person's licence …, (h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period, (i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee, either permanently or for a specified period. 1. In the case of the respondents, the administrator took action against the respondents under each of the quoted provisions. 2. Section 200 allows a person, against whom disciplinary action is taken, to seek administrative review. It provides: A person against whom disciplinary action is taken by the Secretary may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the Secretary's decision on the disciplinary action or on a review of the disciplinary action. 1. It should be noted that the only other provision of the PSA Act providing for administrative review by the Tribunal is s 27. It provides for reviews of decisions refusing to grant a person a licence or certificate, or to impose a condition upon the grant of a licence or certificate. 2. Part 8 of the PSA Act is entitled "Management and receivership". It contains three divisions: 1. Division 1 Preliminary ( s 123 to s 125). 2. Division 2 Management (s 126 to s 137). 3. Division 3 Receivership (s 138 to s 164). Receivership requires an order of the Supreme Court. Its provisions are not relevant here. 1. The following relevant definition is found in s 123: expenses, in relation to management, means— (a) the remuneration payable to the manager, or (b) the expenses incurred in the course of the management or receivership, or (c) the costs of legal proceedings involved in the management or receivership, or (d) any reimbursement of the manager or receiver under this Part. 1. Manager is not defined in the PSA Act. 2. Section 126 allows the administrator to appoint a manager to a licensee's business. It relevantly provides: (1) The Secretary may appoint a manager for a licensee's business in any of the following cases if the Secretary is of the opinion that it is necessary to make the appointment in order to protect the interests of other persons— (a) … (b) the licensee's licence has been cancelled or is under suspension, or … (3) The terms of appointment of a manager must specify the remuneration to which the manager is to be entitled in connection with the management of the business for which the manager is appointed. 1. Section 127 provides that a person is not to be appointed as a manager "unless the person is a licensee or has such other qualifications or experience as the Secretary considers appropriate in a particular case." The powers of a manager are found in s 128: (1) The manager of a licensee's business may, subject to the terms of his or her appointment— (a) carry out work on behalf of the existing clients of the business, and (b) accept instructions from, and carry out work on behalf of, new clients, and (c) dispose of, and otherwise deal with, any property in relation to the business, and (c1) wind up the affairs of the business, and (d) exercise any right in the nature of a lien over property held by the manager on behalf of the clients of the business, and (e) incur such expenses as are reasonably related to the conduct or winding up of the business, and (f) do all such things as are ancillary to the exercise of the powers referred to in paragraphs (a)–(e), as if he or she were the licensee to whom the business belongs. (2) The manager of a licensee's business may not exercise any of the functions conferred by this section in relation to the affairs of a client of the business unless the client's consent has been obtained to the manager's exercise of those functions. 1. Section 130 then provides that the acts of the manager are to be taken to be those of the licensee, although no personal liability is to attach the licensee for "any act done by the manager of the licensee's business." The manager is also indemnified, "for any damages and costs recovered against the manager, for anything done or omitted to be done in good faith in the purported exercise of a function under this Act": see s 131. 2. With respect to the expenses of management s 132 provides: (1) So much of the expenses of the management of a licensee's business as have not otherwise been paid to the manager out of the receipts of the business are to be paid to the manager by the Secretary from the Operating Account. (2) An amount paid under this section is recoverable by the Secretary as a debt owed by the relevant licensee. 1. The manager is to report to the administrator on the "management of the licensee's business" as directed, and, on conclusion of management, lodge with the administrator all the manager's records that relate to the management along with a full and final report. 2. Provision is made with respect to the keeping of trust and office accounts associated with the licensee's business by s 134 and s 135. On termination of management s 136 provides: When a licensee's business ceases to be under management, any money held by the manager in connection with the business (after reimbursement of any money paid out of the Operating Account in connection with the management of the business and after payment of the expenses of the management of the business) becomes the property of the licensee. 1. Finally, s 137 makes it an offence to " hinder, obstruct or delay a manager in the exercise of his or her function" under Division 2. 2. As previously noted, s 200 allows a person, against whom disciplinary action is taken, to seek administrative review. When read with s 9 of the ADR Act and s 30 of the NCAT Act, they combine to confer jurisdiction on this Tribunal to hear administrative reviews of decisions by the administrator to take disciplinary action against licensees under s 192 of the PSA Act. The Appeal Panel then has jurisdiction to hear internal appeals against decisions made in administrative review proceedings under s 32(1)(a) of the NCAT Act. 3. In this case the respondents, as interested persons, made application for administrative review of the administrator's decisions relating to the licences under s 55 of the ADR Act on 25 July 2024. At the same time, they applied for a stay of the administrative decisions under s 60 of the ADR Act. It provides: (1) Subject to this section, an application to the Tribunal for an administrative review under this Act of an administratively reviewable decision does not affect the operation of the decision under review or prevent the taking of action to implement that decision. (2) On the application of any party to proceedings for an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may make such orders staying or otherwise affecting the operation of the decision under review as it considers appropriate to secure the effectiveness of the determination of the application. (3) The Tribunal may make an order under this section only if it considers that it is desirable to do so after taking into account: (a) the interests of any persons who may be affected by the determination of the application, and (b) any submission made by or on behalf of the administrator who made the decision to which the application relates, and (c) the public interest. (4) While an order is in force under this section (including an order that has previously been varied on one or more occasions under this subsection), the Tribunal may, on application by a party to the proceedings, vary or revoke the order by another order. 1. Having briefly outlined the relevant legislation; we now turn consider the grounds of appeal. Consideration of grounds of appeal. Whether the Tribunal applied the wrong test in determining whether to make orders affecting the operation of the administrative decision? 1. The administrator submits that the test applied by the Tribunal in considering whether to make an interim order was "whether the interim order [made by Principal Member Simon on 26 July 2024] should continue ([17], [28], [29], [34], [39],[40], [42])." The administrator says the proper test is that set out in s 60 of the ADR Act, which required the Tribunal to take into account the mandatory factors set out in s 60(3). 2. It is necessary to set out the decision in some detail in order to address this issue. In the decision, at [D10], the Tribunal set out s 60 in full. The member then referred to the Court of Appeal's discussion in AVS, at [96], of the Tribunal's power to make orders affecting the operation of administrative decisions. 3. The Tribunal continued: 15 As set out in Tom v Commissioner of Fair Trading [2022] NSWCATOD 130 (Tom) at [34]: In QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]); (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act. (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113 [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. [2018] NSWCATAP 113, the Appeal Panel of this Tribunal summarised the considerations which should be applied when considering a stay in matters such as this as including (at [32]); (1) whether the order is appropriate to secure the effectiveness of the determination of the application for review: s 60(2), ADR Act. (2) whether the order is desirable taking into account: (a) the interests of any persons who may be affected by the determination of the application for review: s 60(3)(a), ADR Act, Loveday v Commissioner for Fair Trading [2018] NSWCATAD 80 (Loveday) at [10], Re Scott and Australian Securities and Investments Commission [2009] AATA 798 (Re Scott) at [4]; (b) any submission made by or on behalf of the administrator who made the decision to which the application relates: s 60(3)(b), ADR Act, Loveday at [10], Re Scott at [4]; (c) the public interest: s 60(3)(c), ADR Act, Loveday at [10], Re Scott at [4]; (3) the applicant's prospects of success on the application for review: AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81 (AVS Group) at [129], Loveday at [10] and [11], Re Scott at [4]. 1. Having stated that the factors set out in and quoted from Tom are "the factors to be taken into account" – which are effectively restatements of s 60(2) and (3) - the member said, at [D17]: The onus lies with the Applicants to demonstrate why the interim order should continue. 1. The Tribunal then turned to a consideration of the submissions made by the parties as to whether or not it was "desirable" to make an order. In doing so, the Tribunal was plainly making reference to the requirements of s 60(3) that it considered were pertinent to its decision as to whether it was desirable to make an order taking into account the mandatory factors set out un that sub-section. 2. The Tribunal then outlined the administrator's (then the respondent) arguments against making an interim order. In summary, these included – 19 The Respondent also submits that the Tribunal should find that there will be no negative overall impacts that will occur while the Decision is under review because Mr Wang and his wife, an employee of the company could continue to maintain employment under the appointed manager and the client owners corporations can continue to be managed through the appointed manager if that is their choice. 20 The Respondent submits that Mr Wang had received a warning letter in 2019 and the company had received a fine in 2022 and that each of the Applicants had been issued with a show cause letter in May 2024 and a further show cause letter in June 2024 before the Decision. 21 The Respondent referred the Tribunal to the second reading speech relating to Division 2 of Part 9 to the PSA Act, most relevantly (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 12 December 2001 at 19868): In conjunction with the immediate licence suspension powers, the bill enables the director-general to appoint a manager to carry on the business of an agent whose licence has been suspended, so as to ensure that existing clients are not disadvantaged. A manager will be required to hold a licence in the category of agency business to which they are appointed or have other relevant experience or qualifications considered appropriate by the director-general. 22 The Respondent maintains that while the appointed manager is a forensic accountant who holds no strata management qualifications, the appointment itself is sufficient to show the delegate of the Secretary of the Department of Customer Service has determined the appointed manager has relevant experience and holds appropriate qualifications to be granted such an appointment. 1. The Tribunal then turned to consider the interest of persons who may be affected by the determination of the application. 22 The Applicants provided affidavits from a number of witnesses outlining the negative impact the cancellation of the licences and disqualifications are likely to have on both the Applicants' financial situations and on employees of the company who are concerned for their continued employment. 23 The unchallenged evidence of the Applicants is that the business has been built from referrals and the Applicants also provided evidence of the valuation of the business and that its revenue is dependent on having strata management agreements in place with owners corporations. 24 I am satisfied on the basis of agreements in evidence (for example cl 16c. on p 11 of the index to exhibit A3) that licence cancellation is a trigger for termination of the strata management agreements in place with the owners corporation clients of the company. The Applicants also provided evidence demonstrating that since the Decision a number of owners corporations managed by the Applicants are considering taking steps to terminate their management agreements with the company. 25 The appointed manager can only perform management actions on behalf of client owners corporations once each corporation has granted consent to that occurring (s 128(2) of the PSA Act). The appointed manager has no strata management qualifications, instead has a financial background and has reviewed the financial operations of at least one owners corporation. I accept the submission of the Applicants that the appointed manager's affidavit (at [8]) discloses a misunderstanding as to the different powers of strata committees as opposed to owners corporations for strata schemes in relation to the appointment of strata managers, which suggests a lack of appropriate knowledge. These may be negative factors taken into consideration by client owners corporations when consent is sought from them by the appointed manager as required by s 268(2) of the PSA Act. 26 I am therefore satisfied the Applicants' financial interests are likely to be negatively affected if the interim order does not continue while the substantive proceedings are resolved. 27 There is also uncertainty relating to the interaction between s 9 of the PSA Act which requires a company to be licensed before it can carry out strata management activities and s 126 which allows a person to be appointed to manage a licensee's business, relevantly, if their licence is cancelled or suspended. It may be the case, as the Applicants submit, that the proper reading of the provisions is that s 126 allows an individual licensee to be replaced by a manager while a company licence continues on foot. I am satisfied this uncertainty has the potential to negatively affect not only the continued operation of the Applicants' business, but also each of the owners corporations to be managed under the appointed manager because the validity of any actions taken by the company on behalf of those owners corporations could be impacted. 28 These considerations weigh in favour of the continuation of the interim order. 1. The Tribunal then turned to consider the public interest. 29 On the material before the Tribunal there do not appear to be any issues of public safety arising as a result of a continuation of the interim order. 30 Further, certainty for the continued operations of the approximately 150 owners corporations currently managed by the Applicants is also a relevant factor in relation to consideration of the public interest in this matter. 31 As discussed at [23]-[24], the appointment of the manager is not without issue and therefore creates further uncertainty. 32 I note the Decision was made without notice to the Applicants, for example no draft notices of decision were issued to the Applicants in advance of the Decision and no time was allowed between the issuing of the Decision and the cancellation to facilitate the management of the client owners corporations. The appointment of a manager came several days after the Decision leaving approximately 150 owners corporations without management until the Tribunal made orders on the afternoon of 26 July at the request of the Applicants. Had the Tribunal not made those orders, there would have been no effective operational management for those owners corporations for a further period of time because the manager was intending to commence performing work on the following Monday 29 July. 33 There was no material before the Tribunal as to the schedule of fees to be paid to the appointed manager, therefore it is not clear the terms of the appointment specify the remuneration the manager is to be entitled to as required by s126(4) of the PSA Act which is a further issue of uncertainty. 34 I am therefore satisfied on the material before the Tribunal that public interest considerations generally weigh in favour of the continuation of the interim order. 1. Next the Tribunal turned to consider the prospects of the administrative review application succeeding. 35 The Decision appears to have been made generally on the basis of four Tribunal decisions published between January 2022 and January 2024 where the Applicants were not a party to the proceedings, but findings were made as to the Applicants' conduct over the period 2020 - 2023. 36 The Applicants in their responses to the show cause and further show cause letters from the Respondent maintain the lawfulness of esp conduct and oppose any disciplinary proceedings being taken against them. 37 I note the lapse in time between the first conduct identified in 2021 and the Decision. While the reasons for the Decision outline a number findings of the delegate that they were satisfied particular conduct was unlawful, the Respondent has conducted no prosecutions and no court has made findings against the Applicants in proceedings to which the Applicants were a party. 38 Further, except for the issuing of notices to show cause, the Decision is essentially untested with no internal review taking place and the evidence in relation to the Decision as it applies to the Applicants has not yet been challenged or conclusively examined by the Tribunal. The substantive proceedings will evaluate the seriousness of alleged conduct and the evidence overall as it applies to the Applicants. On the material before the Tribunal it is not possible at this stage of the proceedings to conclusively determine whether there is a proper basis for findings that the Applicants are guilty of any disqualifying conduct. 39 This consideration therefore weighs in favour of the confirmation of the interim order. 1. Next the Tribunal asked whether the "order [was] appropriate to secure the effectiveness of the determination of the application for review?" The member wrote: 40 On the material before the Tribunal and on the basis of the considerations discussed in these reasons I am satisfied the interim order should remain in place until the Decision has been subject to administrative review. 41 Given it is accepted Mr Wang is the directing mind of the company it is not practical to separate the orders applying to each individual party at this point of the proceedings therefore the Tribunal will make the same order applying to each of the Applicants. 1. The Tribunal then concluded: 42 Having considered the matters referred to in s 60(3) of the ADR Act, I consider it appropriate to make the order effectively staying the Decision, confirming the interim order, to secure the effectiveness of the determination of the application for review. I have considered the submissions made by the parties and have found that the Decision will affect the interests of the Applicants, employees of the Applicants and the client owners corporations managed by the Applicants. 43 This is an interim application, the evidence in relation to the Decision has not yet been challenged or conclusively examined by the Tribunal. It is not yet possible to determine whether there is a proper basis for findings which have resulted in the cancellations. 44 On the material before the Tribunal I am not satisfied that the appointment of a manager will result in the effective management of the Applicants' business pending the outcome of the administrative review of the Decision. … 1. It can be seen that in making its decision the Tribunal purported to have to regard to each of the factors set out in s 60 in reaching its determination. With respect to the test which the Tribunal set out to apply, we think it clear from a reading of a decision as a whole, that it sought to have regard to the mandatory factors set out in s 60(3) in determining that it was both desirable and appropriate to make an interim order affecting the operation of the administrative decision. While we accept that on seven separate occasions the Tribunal made reference to having to decide whether the interim order should continue, we think it plain that the Tribunal used this expression as an infelicitous form of shorthand for the task at hand. In a practical sense, the Tribunal was determining whether the interim order should continue, be varied or revoked under s 60(4), and in doing so the member understood that she was required to have regard to the mandatory requirements of s 60(3) in determining that an interim order was desirable and appropriate. 2. In this regard we think the observations made by Bell P (as the Chief Justice then was) in New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 applicable: 76 What constitutes adequate reasoning on the part of a tribunal is also informed, in my opinion, by statements from well-known administrative law decisions relating to the limits of judicial review and the need for practical as well as principled restraint in that context: Pozzolanic at 287. 77 These principles include the following: (i) "Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole": Re Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 30; 77 ALJR 1165 per Gleeson CJ at [14] (Ex parte Applicant); (ii) the court should not read passages from the reasons for decision in isolation from others to which they may be related: Re Maria Politis v Commissioner of Taxation [1988] FCA 739 at [14]; 20 ATR 108 at 111; (iii) the reasons must be read fairly and as a whole: Ex parte Applicant at [147] per Kirby J; Wu Shan Liang at 291; Bisley at 251; (iv) the reasons recorded ought not to be inspected with a fine tooth-comb attuned to identifying error: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; [1993] FCA 456 (Pozzolanic) at 287; Wu Shan Liang at 272, 291; (v) there should be a degree of tolerance for looseness in the language of the tribunal, unhappy phrasing of the tribunal's thoughts or verbal slips: Pozzolanic at 287, Wu Shu Liang at 272 and 291. 1. We are not persuaded that the Tribunal applied the wrong test when determining whether to make the interim order. Whether the Tribunal failed have proper regard to the mandatory considerations set out in s 60(3)(b) and (c) of the ADR Act? 1. The administrator submitted that the Tribunal failed to have proper regard to mandatory consideration in s 60(3) by: 1. Misconstruing the public interest in s 60(3)(c) by equating it with public safety and failing to have due regard to the role that the appointment of a manager would have in protecting the public interest. 2. Failing to have due regard to submissions made by the administrator as required by s 60(3)(b). 3. Not considering the seriousness of the alleged conduct of the respondents which resulted in the disciplinary action being taken against them. 1. The first two are in many ways intertwined. The submissions which the administrator argues were not properly considered by the Tribunal related to the issue of how the appointment of a manager secured the public interest, as well as protecting the interests of those associated with PSMG. 2. Turning first to the public interest, the administrator argued that the Tribunal misconstrued the public interest by conflating it with public safety when it found, at [D30], that "there do not appear to be any issues of public safety arising as a result of a continuation of the interim order." As the Tribunal immediately went on to consider the impact of "certainty for the continued operations of the approximately 150 owners corporations currently managed by" the respondents, it is clear that the Tribunal did not only consider public safety when considering the public interest. It did not conflate the two. As the respondents submitted, "certainty" for PSMG's clients formed part of the public interest considered by the Tribunal. 3. The administrators submissions go on to address errors the Tribunal is said to have made in considering the impact of the appointment of a manager. We will address these issues later in these reasons, when considering whether the Tribunal had regard to irrelevant considerations. 4. With respect to the requirement that the Tribunal have due regard to submissions made by the administrator, in its written submissions to the Tribunal at [AB 937-938] the administrator, made submissions concerning: 1. The appointment of a manager is protective of the public interest. 2. The public interest in the integrity of licensing regime. 3. The public interest in the protection of consumers, the appointment of a manager being the protective mechanism envisaged by Parliament. 4. The appointment of a manager would preserve the status quo for employees. 5. The appointment of a manager would preserve the status quo for strata scheme clients. 6. The appointment of a manager would preserve the business of the licensee who owns that business, PSMG. 7. The appointment of a manager would preserve Mr Wang's employment relationship with PSMG. 1. In addition, the administrator in oral submissions addressed (see [AB 36 -41]): 1. Whether a manager requires a licence, and whether there was an inconsistency between s 9 and s 126 of the PDA Act. 2. Whether and how the prejudice suffered by PSMG and Mr Wang was addressed by the appointment of a manger. 3. The profitability and preservation of PSMG's business under management. 4. That the Tribunal does not have jurisdiction to review the appointment of a manager. 5. The seriousness of the conduct leading to the disciplinary action. 1. The respondent's submitted that the Tribunal did address the impact of appointment of a manager on the desirability of making an order in accordance with s 60(3). They submitted that there was "no obligation" on the Tribunal to address the purported seriousness of the adverse findings against the respondent, when considering the stay. 2. The requirement that the Tribunal engage with the administrator's submissions is a mandatory one. While we agree with the respondent that the Tribunal did engage with and consider some of the administrators submissions, that is not the case with respect to all of them. 3. First, is the issue agitated during the stay hearing as to whether a manager requires a licence, and whether there is an inconsistency between s 9 and s 126 of the PSA Act. Both parties made submissions to the Tribunal on this issue. The Tribunal did not engage with those submissions and determine the questions in issue. Rather, at [D27], it referred to "uncertainty relating to the interactions" between the sections, and made finding as to the effect of that uncertainty. That paragraph said: 27 There is also uncertainty relating to the interaction between s 9 of the PSA Act which requires a company to be licensed before it can carry out strata management activities and s 126 which allows a person to be appointed to manage a licensee's business, relevantly, if their licence is cancelled or suspended. It may be the case, as the Applicants submit, that the proper reading of the provisions is that s 126 allows an individual licensee to be replaced by a manager while a company licence continues on foot. I am satisfied this uncertainty has the potential to negatively affect not only the continued operation of the Applicants' business, but also each of the owners corporations to be managed under the appointed manager because the validity of any actions taken by the company on behalf of those owners corporations could be impacted. 1. The member went on to find at [D31] that the issues concerning the appointment of the manager and those concerning the retention of PSMG's clients following the appointment of a manager created uncertainties. In doing so, the Tribunal did not engage with the administrators submission regarding the manager's appointment acting to preserve and protect PSMG's business. 2. Additionally, the Tribunal did not directly address the administrator's submission regarding the seriousness of the respondents' conduct leading to disciplinary action. 3. We do not accept the respondents' submission that the Tribunal was under no obligation to address the seriousness of the conduct. It was obliged by s 60(3)(b) to take into account the submissions made by the administrator. It was not obliged to accept them, but it had to take them into account. This requires that that they be "taken into consideration" or paid "attention to in the course of an intellectual process": see Metropolitan Water Board v. Marylebone Assessment Committee [1923] 1 K.B. 86, (1923) 92 L.J.K.B. 161 per Sankey J at p 103 and Lord Hewart C.J at 99; and Ex parte Yuco Pty Ltd [1978] Qd R 235 per Stable SPJ at 238. In the decision, there is no discussion of, or engagement with, the nature and seriousness of the conduct leading to disciplinary action being taken by the administrator. While, as the respondents submit, the Tribunal did refer to the fact that the administrative decisions followed on from findings made in a number of Tribunal decisions, the nature and seriousness of those findings was not touched on in the decision. 4. The failure by the Tribunal address submissions made by the administrator is an error of law. 5. Further, with respect to the issues concerning the interaction of s 9 and s 126, and whether a manager has to be licenced, the Tribunal did not directly address the submissions made by the administrator (that no licence is required) but simply referred to there being uncertainties about the issue. This is a failure to address a central issue. It constitutes a failure to address a relevant consideration that was before the Tribunal. 6. Where there are uncertainties concerning the operation of legislation under consideration, it is the Tribunal's task to resolve those uncertainties by construing the statute in accordance with established principles of statutory construction. In R v Holmes; Ex parte Altona Petrochemical Co Ltd (1972) 126 CLR 529 (Holmes) at 562 Windeyer J explained that: … uncertainty is not of itself a ground for declaring subordinate or delegated legislation invalid : see King Gee Clothing Co. Pty. Ltd. v. The Commonwealth (1945) 71 CLR 184, at pp 194-195 , per Dixon J. Courts must wrestle, and are accustomed to wrestle, with difficult language. They are required to find its meaning, not permitted to abandon the task. 1. In Brown v Tasmania [2017] HCA 43, at [506] Edelman J, referring to Holmes, explained: … the meaning of a statutory text is revealed by "the reasoning of courts seeking to apply that text in practice". Where a lack of clarity is exposed to the court, it is the task of the court to make it clear. In Australia, the resolution of statutory uncertainty is, emphatically, both the province and the duty of the judiciary. 1. In this case the Tribunal's failure to engage with and resolve the uncertainties it perceived with respect to the interaction of s 9 and s 126 of the PSA Act, resulted in it failing to take into account submissions made by the administrator, which were a mandatory consideration. 2. These are errors of law on which the appeal must succeed. Whether the Tribunal erred by purporting to exercise jurisdiction to review the validity and effectiveness of the appointment of a manager under s 126(l)(b) of the PSA Act to PSMG's business? 1. The Tribunal does not have administrative review jurisdiction to review the appointment of a manager to a licensee's business under s 126 of the PSA Act. Administrative review jurisdiction is conferred on the Tribunal by s 27 and s 200 of the PSA Act, and is restricted to decisions relating to granting and refusing (or placing condition on) licences, and decisions that disciplinary action be taken. The appointment of a manager to a licensee's business under s 126 is not such a decision. 2. The Tribunal's task in this case was to determine whether or not to make an order affecting the administrative decisions to cancel the respondents' licences, by staying their operation and ordering that the licences be treated as if they remained on foot. A complicating factor that confronted the Tribunal, was that following the administrative decision to cancel the respondents' licences, the administrator had appointed a manager to PSMG's business. 3. If the Tribunal were to make the orders sought, a consequence would be that for all purposes the licences would have to be treated by the administrator as if they had not been cancelled. What impact would that then have on the appointment of the manager, which was made after the licences were cancelled? What impact would the appointment of a manager have on the Tribunal's consideration of the factors that s 60 requires be taken into account? These were all live issues before the Tribunal. 4. In that context, the respondents were before the Tribunal seeking an interim order, and making submissions concerning (a) the validity of the managers appointment, (b) its adverse impact of PSMG's business and clientele, and (c) the impact on Mr Wang, his family and associates personally, as relevant considerations to the making of such an order. The administrator was submitting that the appointment of a manager addressed concerns relating to the impact of the cancellation decisions on the respondents, the business and its employees and that it also fully addressed public interest concerns as intended by Parliament. 5. In those circumstances it was clearly open to the Tribunal to inquire into and seek submissions on the practical impact of the appointment of a manager to PSMG's business following the cancellation, and to consider questions concerning how, practically and legally, that appointment might affect the Tribunal's exercise of the discretion to make interim orders under s 60. 6. We have already explained that the Tribunal fell into error in that process by failing to resolve "uncertainties" it was bound to resolve in the legislation and not having regard to all the administrator's submissions. We do not accept, however, that the Tribunal purported to exercise a jurisdiction it did not have by reviewing the decision to appoint the manager to PSMG's business. The Tribunal's decision was one within its jurisdiction, which concerned whether to make an interim order under s 60, affecting the cancellation decisions, which were the subject of the administrative review application. The fact that it found that there were difficulties and uncertainties associated with the appointment of the manager, which the Tribunal thought relevant to its decision under s 60, does not mean that it purported to review the appointment of the manager. As we have already found, it meant that the decision with respect to whether or not to make an interim order was affected by errors of law. Whether the Tribunal took into account irrelevant considerations concerning the appointment of a manager to PSMG's business in making the decision? 1. The administrator says that the Tribunal took into account the following irrelevant considerations. 1. The uncertainty with respect to the interaction of s 9 and s 126 of the PSA Act regarding the licencing or otherwise of the manager. 2. The uncertainty regarding the manager's renumeration as required by s 126(4) of the PSA Act [D33]. 3. The qualification of the appointed manager, whose background was in finance and accountany, to manage PSMG's business [D25]. 1. With respect to (2) and (3) the administrator says that the Tribunal had before it the instrument of appointment of the manager and had no jurisdiction to go behind it. In addition, there was evidence regarding how the manager's renumeration was to be calculated before the Tribunal. With respect to the manager's qualifications, s 127 requires that the manager "is a licensee or has such other qualifications or experience as the Secretary considers appropriate in a particular case." The administrator submitted that the appointment itself spoke to the manager having appropriate qualifications. 2. The respondents in submissions argued that the Tribunal was entitled to take factors relating to the manager's lack of qualifications in strata management, and the absence of information regarding his fees, into account when considering their interests as person affected by the cancellation decision. With respect to the failure of the instrument of appointment to specify the managers fees the respondents (at [RS67]) suggested that this meant that "there was no evidence that the appointment was even valid." 3. As we have already found, the Tribunal does not have jurisdiction to review the decision to appoint a manager, including finding that the appointment was invalid. 4. Returning to the irrelevant considerations relied on by the administrator, we have already dealt with the Tribunal's failure to deal with uncertainties regarding the interaction of s 9 and s 126 of the PSA Act constituting an error of law. 5. In our opinion, questions surrounding the fees to be paid to the administrator (ultimately at the costs of the respondent by virtue of s 132) are relevant considerations when taking into account the respondents' interests as affected persons under s 60(1)(a) of the ADR Act. Similarly, the suitability of a manager to manage the business, while exercising the powers granted to the manager under s 128, is a question of some importance to the viability and value of a licensee's business, its ability to operate, and to the respondents' interest pending the outcome of the administrative review application. 6. The fact that the manager is appointed by the administrator under s 126 and that the Tribunal does not have jurisdiction to review such a decision, does not prevent the Tribunal taking the consequences of such an appointment into account where they affect a person's or the public interest under s 60. How should we dispose of the appeal? 1. It follows from our findings, that there are errors of law affecting the decision, that the appeal will be allowed. 2. In the course of submissions, we explored with the parties the prospect, if we allowed the appeal, of our reconsidering the s 60 application based on the evidence that was before the Tribunal. The parties were not opposed to our taking that approach. We propose to do so. 3. The administrator, on reconsideration, sought to rely on the affidavit of Aiman El-Roubaei affirmed 4 December 2024. Mr El-Roubaei is the administrator's legal officer. The purpose of this affidavit was to update the evidence before us with respect to the appointment of the manager, Mr Fehon. At par 8 of his affidavit Mr El-Roubaei says: Due to the Interim Order and the Stay Order, Mr Fehon did not commence work in accordance with his appointment. His appointment was effectively 'stayed' along with the decision to cancel the licences… 1. We have admitted that affidavit as additional evidence on the rehearing. reconsideration 1. In reconsidering the application for an interim order, we will: 1. Consider and resolve the uncertainties concerning the interaction of s 9 and 126 that affected the decision. 2. Briefly outline the relevant facts and circumstances, not previously discussed, as we understand them. 3. Determine whether or not to make an interim order and explain why we have decided to do so. Are s 9 and s 126 of the PSA Act in conflict? 1. When considering the meaning of a statutory provision it is necessary to consider the provision in its statutory context. In STAR Training Academy Pty Ltd v Commissioner of Police [2021] NSWCATAP 370 the Appeal Panel explained: 54 When ascertaining the meaning of a statutory provision, the statutory context must be considered from the outset in order to understand the meaning of the statutory language: Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission [2016] NSWCA 298 at [77]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]; and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. In R v A2 [2019] HCA 35 Keifel CJ and Keane J explained, at [32-33] (references omitted): 32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve. 55 That is not to say that the text itself is to be ignored. Any interpretation of a statutory provision must begin with and end with consideration of the statutory text: Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 at [39]. 56 Section 33 of the Interpretation Act 1987 (NSW) provides that in interpreting the provision of an Act 'a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object'. As is the case with the SI Act, if the purpose(s) of the Act is not expressly stated, it needs to be inferred from the Act as a whole, including its legislative history: see Saraswati v The Queen [1991] HCA 21 per McHugh J. 57 In construing a statutory text regard may be had to extrinsic materials. In CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408, Brennan CJ, Dawson, Toohey and Gummow JJ observed at [88] that: 88. It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent. … 61 With respect to the interaction between the common law position and s 34 of the Interpretation Act Bell P explained in Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 20 that, at [41]: Although s 34(1) of the Interpretation Act 1987 (NSW), which is in virtually identical terms to s 15AB of the Acts Interpretation Act 1901 (Cth), would appear to constrain the use of extrinsic materials such as explanatory memoranda and second reading speeches in the identification of statutory purpose and only permit recourse to them either to confirm the "ordinary meaning" of a statutory provision or in cases of ambiguity or obscurity or where giving effect to the ordinary meaning would lead "to a result that is manifestly absurd or is unreasonable", the modern common law of statutory interpretation permits recourse to such extrinsic materials in the absence of ambiguity and has, perhaps somewhat surprisingly, been held to authorise such use even in circumstances where that use would not be permitted under the Acts Interpretation Act and, by parity of reasoning, the Interpretation Act: see Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; [1997] HCA 53; Consolidated Media at [39], quoted in [28] above; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Lawbook Co) at [8.160], [8.200]. 1. When the PSA Act was introduced into Parliament on 6 December 2001 the Minister, in his second reading speech, described it as an "important piece of consumer protection legislation" (NSW Hansard, Legislative Assembly, 6 December 2001, p 19862). With respect to disciplinary measures and the appointment of managers the Minister said (NSW Hansard, Legislative Assembly, 6 December 2001, p 19867-8): The Government has responded to the community's concerns by including a new disciplinary framework in the bill which will allow fast action to be taken to remove shonks and incompetents from the industry to protect consumers from further risk. The department will be able to initiate disciplinary action through the issue of a notice to a licensee or certificate holder to show cause as to why they should not be subject to disciplinary action. A person to whom a show cause notice has been issued will have at least 14 days to provide evidence or make a submission. The bill sets out a range of grounds for commencing disciplinary proceedings, including the breach of the legislation or rules of conduct, failure to comply with a condition of a licence or certificate of registration, failure to hold professional indemnity insurance, failure by a licensee-in-charge to properly supervise employees and breach of an undertaking given to the director-general. Proceedings will also be able to be commenced if a person becomes disqualified or ceases to be a fit and proper person to hold a licence or certificate or to participate in the management of an agency business. These provisions will also apply to corporate licence holders as well as unlicensed persons. The bill provides the department with a range of options for disciplinary action, depending on the circumstances. Action taken may include issue of a caution or reprimand; requirement to comply with an enforceable undertaking; cancellation or suspension of a licence or certificate or exclusion from involvement in the management of an agency business; imposition of conditions on a person's practice; and imposition of a monetary penalty of up to $11,000 for an individual or $22,000 for a partnership or corporation. The disciplinary scheme is similar to that which applies to motor dealers and travel agents, and the scheme that was recently introduced for builders. The bill provides a number of options where urgent action is needed to protect consumers from significant loss or harm. The bill enables the director-general to issue a public warning alerting consumers to the risks of dealing with a particular person. Such urgent warnings will be able to be made where, in the opinion of the director-general, there is an immediate risk to the public. The director-general will also have the power to immediately suspend a licence in serious risk situations. This provision mirrors the current licence suspension power available under the Fair Trading Act. In conjunction with the immediate licence suspension powers, the bill enables the director-general to appoint a manager to carry on the business of an agent whose licence has been suspended, so as to ensure that existing clients are not disadvantaged. A manager will be required to hold a licence in the category of agency business to which they are appointed or have other relevant experience or qualifications considered appropriate by the director-general. The bill additionally allows for the appointment of a manager in other circumstances, such as where there has been a failure to account by a licensee or the licensee has become a disqualified person or has abandoned the business. Provisions are included in the bill to set out the powers of managers, reporting requirements and termination of management, as well as a provision to enable the cost of the appointment to be borne by the licensee. The power to appoint a receiver or investigating accountant available under the current legislation will continue to be provided for in the new scheme. The disciplinary model is based on administrative law principles which preserve consistency and certainty in decision making. The process will be less costly both for licensees and the department. There will be access to the Administrative Decisions Tribunal for review of all disciplinary decisions. 1. The PSA Act does not have an objects clause. It is evident from an examination of the Act as whole, that it is intended to regulate those involved in property and stock sales and marketing industries, including strata title manager, rental managers and certain building managers. It includes significant consumer protection provisions and the establishment of a compensation fund with respect to agents trust accounts. We have already outlined above the applicable provisions of the PSA Act, but think it important to refer to the structure and text of the Act in more detail, so as to put those provisions in context. 2. Part 2 of the PSA Act (s 8 - 27) makes provisions concerning the licencing and registration of agents and their assistant registered persons, the qualifications they require and the licencing process. Section 8 requires all individual agents to be licenced. Section 9 prohibits corporations, such as PSMG, from "carrying on the business of an agent unless the corporation holds a corporation licence." Business is not defined in the Act. Agent relevantly means a strata managing agent: see s 4. Section 8 requires all individual agents to be licenced. Qualification requirements are the subject of s 15. 3. Part 3 of the Act (s 28 – 53F) contains provisions regulating the conduct of licensees and registered persons; including their business practices and conduct; their duty to supervise and liability for the conduct of employees; conflicts of interest and how they should be handled; and advertising and representations by licensees. Section 31(1) requires anyone who carries on business under a licence to employ "an individual (who holds a class 1 licence of a kind that would authorise the employed individual to carry on that business) to be in charge of that business." Similarly, the holder of a corporation licence must employ a similarly qualified individual to be in charge of its business. 4. Part 4 of the Act (s 54 - 62) requires that agents have agency agreements in place with their clients, requires certain financial disclosure by agents and provides for a cooling off period with respect to agency agreements. An agent is not entitled to recover fees or commissions for work done unless there is in place a signed and compliant agency agreement, in writing, given to the client within 48 hours of execution by licensee: see s 55. 5. Part 5 of the Act is concerned with residential property and rural land sales. Its provisions are not strictly relevant to our consideration. 6. Part 7 (s 85 - 102) is concerned with the keeping and regulation of trust accounts. Part 8 (s 103 -122) requires the keeping of records by licensees and provides for them to be regularly audited, with power for the administrator to freeze trust accounts where it appears that persons associated with the licensee " has, or may have, stolen, misappropriated or misapplied trust money." Section 109 requires strata managing agents to keep copies of their instruments of appointment. 7. Part 9 is concerned with management and receivership. We have already outlined the provisions of that part and set out what the relevant sections say: see [47 - 53] above. 8. Part 10 (s 165 – 186) establishes a compensation fund to compensate claimants who suffer pecuniary loss as a result of a failure to account for trust moneys. It contains a variety of provisions establishing the fund, providing for levies to be paid to the fund, regulating claims, and providing for the examination of licensees. 9. Part 12 (s 191 – 23) is concerned with complaints and disciplinary action. We have set out its provisions in more detail above at [54] above and following. 10. Part 13 (204 – 210A) gives the administrator specified enforcement powers. While Part 14 (s 211 – 218) is concerned with offences against the Act and proceedings for offences. Part 15 (s 219 -222) makes provisions concerning administration of the Act, while Part 16 (s 223 – 232) contains miscellaneous provisions. 11. It is in that statutory context, and bearing in mind the statutory purposes of industry regulation and consumer protection, that ss 9 and 126 must be read. 12. The uncertainties to which the Tribunal referred in its decisions, stemmed from submissions made by the respondents that s 126 "does not provide for an exemption with respect" to the requirement that a corporation must be licenced, when a manager is appointed to its business. As a consequence, the respondents said that PSMG "cannot carry on the business of an agent" despite the fact that a manager had been appointed to it, due to the cancellation of its licence. Without a corporate licence PSMG could not operate its business. Therefore, the respondents submitted that the manager had no power to conduct PSMG's unlicenced business. Among the more specific repercussions of this, it was submitted, were that the only powers that the manager could lawfully exercise under s 128 were those relating to the cessation of the business. PSMG, under the manager, could not charge or recover fees for the work it had done and could not carry on business. To do so, despite what s 126 says are the managers powers, would result in a breach of the provisions s 9 which prohibit unlicensed corporations carrying on business as an agent and from seeking to recover fees for services provided. 13. In response, the administrator submitted that it had power under s 126(1)(b) to appoint a manager "for a licensee's business" where, as was the case with PSMG, "the licensee's licence has been cancelled." A manager does not have to be a licensed person to be appointed but may have, "such other qualifications or experience as the Secretary considers appropriate in a particular case": s 127. This, the administrator submitted, is the case with Mr Fehon who describes himself as a forensic accountant. That the administrator considered Mr Fehon to be suitably qualified was said to be evident from his appointment by the administrator, a submission which we understood to be akin to reliance on the presumption of regularity. In any case, the administrator pointed to the fact – which we accept - that the Tribunal has no jurisdiction to administratively review a decision to appoint a manager. 14. Once appointed as manager, the administrator submitted that a manager carries on the business by virtue of that appointment, not as the holder of a licence. 15. In Mr Fenton's case, his instrument of appointment (AB296) does not purport to limit his powers, with the result that s 128 says he may exercise all of them, "as if" he were "the licensee to whom the business belongs": i.e. PSMG. 16. As we understood the administrator's submission, Mr Fehon and his "team" – a term he used in his affidavit - are able to operate PSMG's business by virtue of his appointment alone. The administrator said the respondent's arguments regarding the absence of a licensee were therefore without merit. 17. There is merit to the administrator's submissions, but not without qualifications. Once appointed, a manager, such as Mr Fehon, is authorised by s 128(1), subject to the terms of his appointment, to exercise the powers listed in that sub-section – which includes carrying out work for clients – "as if he or she were the licensee to whom the business belongs." Those last quoted words allow a manager of a licensee's business, who is not a licensed person, to exercise the powers of a manager, which include operating the business, "as if he or she is the licensee." 18. There is no necessary inconsistency or conflict between s 9, s 126 and the other provisions of the Act relating to the appointment of a manager. The provisions can be read consistently, harmoniously and coherently. While s 9 required PSMG to be licenced in order "to carry on business as an agent", once its licence was cancelled, and a manager was appointed for that "business", s 128 allowed the manager to exercise the powers under that section – which effectively include operating the business – "as if he or she were the licensee to whom the business belongs." A legislative fiction is created whereby the manager is, for the purposes of the legislation, treated as if he were PSMG, with a corporate licence, in the exercise of those powers. Construed in this way, there is no conflict or uncertainty relating to the interaction of s 9 with s 126. 19. There is an important qualification regarding the appointment of a manager and the exercise of a manager's power. Section 128(2) says: The manager of a licensee's business may not exercise any of the functions conferred by this section in relation to the affairs of a client of the business unless the client's consent has been obtained to the manager's exercise of those functions. 1. In NSW strata managers are to be appointed by a majority vote at a general meeting of owners corporations: see s 41(2) of the Strata Schemes Management Act 2015 (NSW) (the SSM Act). The process of gaining consents to the manager exercising his functions with respect to PSMG's clients may not be immediate and involve numerous general meetings. 2. Further, there is nothing in the provisions of the PSA Act relating to appointment of a manager that exempts the business under management, or the manager himself (treated as if he was a licensee), from the other requirements of the Act applicable to PSMG's business and as a corporate licensee. On the other hand, there is no specific provision requiring the manager to comply with all those requirements. 3. There is therefore a question as to whether the requirement that manager exercise his powers "as if he or she were the licensee to whom the business belongs", means that the manager must comply with the same requirements as those applicable to the licensee. Such a reading would be consistent with a harmonious reading of the Act as a whole. It would mean that the manager is required to comply with the provisions of the Act that applied to PSMG in the operation of its business. This would include such things as the conduct, supervision, contractual, trust account and record keeping requirements of the Act, and the need to employ a licensee in charge. 4. There are however questions concerning the construction of the PSA Act that may point to a contrary conclusion: e.g. is a manager to be treated "as if" he "holds a corporate licence" for the purposes of deciding whether the manager is required to employ a licensee in charge for the purposes of s 31? The administrator's submissions regarding the manager's powers point to there being no such requirement. 5. We note that the parties have not had an opportunity to make submissions on this specific issue. Given the conclusions we have reached, it is unnecessary for us to decide it at this time. Outline of the relevant facts and circumstances not previously discussed. 1. We have reviewed the evidence, materials and submissions that were before the Tribunal when it made the decision. We will not attempt to summarise all of that evidence, but will draw attention to matters we consider of importance in our reconsideration. With respect to the Respondent's evidence and materials. 1. The respondent filed a series of affidavits. These include: 1. An affidavit from Mr Wang dated 25 July 2024 (after the cancellation but before the manager was appointed) in which he states that PSMG manages over 150 strata schemes and has 10 employees. He says that the business is already suffering as a result of the cancellation, with 6 clients approaching him about termination. He expresses concern that the cancellations have left his clients without "effective strata management" and could cause them considerable difficulty. He says that his employees are concerned for their future, as is he. He is concerned that the business will be worthless, and his income will be lost. The 10 year disqualification means that his ability to earn an income is lost. 2. Five affidavits from employees of the company all sworn on 25 July 2024 in which they express their concerns and anxiety for their futures following the licence cancellations. 3. A further affidavit from Mr Wang dated 31 July 2024 (after the manager was appointed and the initial stay order made) in which he restates and updates the concerns expressed in his earlier affidavit. He states that 20 clients have now approached him regarding termination of their contracts. He notes that under PSMG's standard contract it warrants that it is the holder of a strata managing agent's licence, and that clause 16 of the contract (copy provided) provides that an owners corporation may terminate the contract if PSMG's strata managing agents licence is cancelled. 4. An affidavit from Hoa Ding (Mr Wang's wife and an employee of the company) dated 31 July 2024 who says she owns 50% of the shares in PSMG. She expresses similar concerns to those expressed by him, and suggests that the cancellation decision will devalue the company by millions of dollars. She deposes to the anxiety and worry these events are causing her. 5. An affidavit from Arina Sian, a solicitor for the respondents, in which she deposes to conducting searches which show that neither Mr Fehon, the manager, nor his company, McGrath Nicol Advisory, hold strata management licences under the PSA Act. 6. Five statements from clients of PSMG and those associated with them, who have had dealing with PSMG and Mr Wang. These are effectively testimonials to Mr Wang's work as a strata managing agent. Two state they have no interest in an unknown manager being appointed for their owners corporations. The administrator criticised these statement because they show no understanding by their authors of the details of the conduct that led to the licence cancellations and are therefore not fully informed. We accept that criticism, and will treat them with less weight accordingly. Nonetheless, it is clear that the respondents are held in high regard by some of their clients. 1. From these affidavits we conclude that the cancellation of the respondents licences has put PSMG's business at risk and imperilled its value. Its employees, shareholders and directors, including Mr Wang, are anxious and concerned for their futures. Mr Wang, as a managing strata agent, is held in high regard by some of his clients. The cancellation decisions alone provides ground for PSMG's clients to terminate their management contracts. With respect to the administrator's evidence and materials. 1. The administrator relied on an affidavit from the appointed manager, Mr Fehon. In his affidavit Mr Fehon described himself as a forensic accountant. He: 1. Set out his qualifications which are not in dispute. There is an issue as to whether he is qualified to run a strata management business and what experience he has in doing so. There is agreement that he does not hold a licence as a strata managing agent. His experience relevant to managing a strata management business is set out in pars 2(c) and (d) of his affidavit: c. Over the last 13 years I have been appointed by New South Wales Fair Trading to act as a Manager and/or Accounts Examiner for a number of real estate or strata management businesses. This work has involved either taking control of the entire business or overseeing the business operations whilst fulfilling the Manager or Accounts Examiner duties. d. Over the last 3 months, I have been appointed by New South Wales Fair Trading as an independent Expert in relation to an Enforceable Undertaking between New South Wales Fair Trading and Netstrata, one of New South Wales largest strata management businesses. In this role a have a team examining the strata management operations and management of Netstrata's strata management business and related entities. 1. Attached his instrument of appointment and exhibited various documents relating to it. 2. Set out his duties as manager, namely to: a. Take control of PSMG's business, including all operational and trust accounts; b. Become the sole signatory to those accounts; c. Notify all clients and stakeholders of PSMG's business, including vendors and purchasers, landlords and tenants with whom PSMG has contractual arrangements, and any lessor of the premises occupied by PSMG's business, of my appointment as Manager; d. Obtain the consent of the current clients of PSMG's business to carry out work on their behalf; e. Keep separate books and records relating to the conduct of the trust accounts and controlled money accounts of PSMG's business from the date of the appointment and, if reasonably necessary, open and maintain at an authorised deposit taking institution operating in New South Wales, one or more trust accounts; f. Preserve the business of PSMG including continuing the ongoing management of the strata plan properties until such time as the respective strata committees appoint an alternative strata manager; g. Assess the conduct and competence of PSMG staff to service clients and maintain the ongoing running of the business, specifically the strata management work of PSMG, and if appropriate to continue to use those staff to service PSMG's clients. and to minimise disruption to PSMG's business and staff; h. Conduct any investigations on instructions from Fair Trading as to the conduct of PSMG; and i . Give Expert Evidence in Court proceedings as may be required by Fair Trading. 1. Explained his intentions as manager: It is my intention to preserve the business of PSMG with the objective of protecting, the rights of consumers and enable an orderly transition of the strata plans managed by PSMG. At the present time it is expected that this will consist of: a. The ongoing management of the strata plan properties until such time as the respective strata committees appoint an alternative strata manager in light of the cancellation of PSMG's. licence and Mr Wang's licence; and/or b. In the alternative, effect sale of the business of PSMG in some form (i.e. the business as a going concern including the transition of all assets of the company and the employment of its staff or the strata roll in isolation or some combination of the two) to ensure the transition of strata plans to a suitably qualified strata manager. 9 I do not intend to wind up PSMG. Any such action will remain within the powers of its directors and shareholders. 1. We conclude from Mr Fehon's affidavit that his intentions as manager are to maintain the business of PSMG for sufficient time to allow its clients (owners corporations) to engage alternative strata managers, or, alternately, to sell the business. His intention is not to preserve the business pending the outcome of the administrative reviews, in order to protect the interest of the respondents until their administrative review applications are decided. While the administrator relied on Mr Fehon's statement that he has no intention of winding PSMG up, that does not reassure us that he will not, as manager, either sell or allow the company's operations to run down to the significant detriment of the company, its business, shareholders and employees. 2. Further, while we have no doubt as to Mr Fehon's qualifications to conduct forensic investigations into PSMG's operations, compliance and accounts, or to arrange for the sale of its business, there is no evidence before us that he, or any of "his team" have the qualifications or understanding necessary to run an operating strata management business. There is no evidence that Mr Fehon now employs or intends to employ a person qualified to be a licensee in charge of a strata management business as part of his team. The administrator's submissions that we could be assured of the necessary expertise being available because Mr Fehon has a "team", do not reassure us. 3. We therefore do not accept the administrator's submission that the appointment of a manager will have the effect of preserving the status quo. 4. The administrator also relied on copies of the show cause notices and the materials relied on by the administrator when making the administrative decisions, as well as those decisions about each respondent, in order to demonstrate the seriousness of the conduct that led to the disciplinary decisions being made against the respondents. These conduct concerns followed a series of decision being made in four decisions made by the Consumer and Commercial Division of this Tribunal under the Strata Schemes Management Act 2015 (NSW) (the SSM Act). 5. PSMG and/or Mr Wang were not parties in all of those proceedings but adverse finding were made against them. The findings did not involve dishonesty, but did find many failures to comply with a strata manager's duty and, arguably, incompetence. In two cases PSMG and or Mr Wang were replaced as strata managers by the orders appointing a new manager, and in one case the Tribunal refused to appoint PSMG as a compulsory manager because of concerns about its competence, and, "principally", its greater cost when compared to another nominated appointee. 6. The administrator in its decisions found PSMG and Mr Wang responsible for numerous breaches of the Act and of the rules specific to strata managing agents, found in Schedule 6 of the Property and Stock Agents Regulation 2014 (NSW) (Repealed) (the 2014 Rules). The administrator found they had acted "unlawfully, improperly, unfairly and incompetently" and in at least one case unconscionably. While Mr Wang and PSMG admitted some mistakes in response to the show cause notices, many allegations were met with straight denials, but no supporting details. There are therefore clear issues to be considered on administrative review. 7. The administrator's findings are not to be taken lightly. At the same time, they are do not represent the most serious conduct that a strata managing agent can commit. They are not at the most serious end of the spectrum of agent misconduct, although their numbers are a considerable concern and elevate their seriousness. 8. As the respondents questioned in submissions, whether the misconduct – if found by the Tribunal - merits the severe sanctions levelled against the respondents by the administrator is a real question. This is also a question to of importance to be considered on administrative review. Reconsideration 1. On reconsidering the application for interim orders, we accept that among those whose interest will be affected directly by the determination of the administrative review applications are PSMG, Mr Wang, Ms Ding, the ten employees of PSMG, and the various owners corporations who are retained by PSMG and their members. 2. Given the evidence of the manager, we are satisfied that there is a significant prospect, if not a real likelihood, that, if an interim order is not made, the business of PSMG, when under management, will be either sold or allowed to run down, as a result of the clientele engaging – and likely being encouraged to engage - other strata managers, before the determination of the administrative review applications. This will not preserve the status quo. It will likely have a significant financial impact on the value and income of the business, the directors and shareholders of PSMG, and on its employees, whose jobs and income will be at risk. PSMG's clients will all face the disruptions associated with a change of strata manager, a burden the evidence shows may be unwanted by some. 3. The manager's stated intentions do not look to preserving the business pending the outcome of the administrative review, but to protecting consumers and clients from the respondent's, despite the respondents' right to seek administrative review. The manager's intentions may see the business sold, or allowed to dwindle away, before an outcome of the administrative review is known. 4. If the review is successful to the extent that the respondents' licences are not cancelled, the damage they may suffer in the meantime could be extensive. There are clearly issues of substance to be determined on administrative review, going to both the extent of the misconduct and the appropriate penalty. 5. We accept the administrator's submissions that by giving the administrator the power to appoint a manager, Parliament has provided for the protection of the public interest. We do not accept, however, that the only means of protecting the public interest is the appointment of a manager. 6. We reject the administrator's suggestion that the protection offered by the appointment of a manager extends to the protection of employees of the company. The managers stated intentions with regard to his management plainly put the jobs of the employees at risk. If the business is sold by the manager, or maintained only while clients find alternate strata managers, the jobs and well-being of PSMG's employees is plainly at risk. 7. While one of the objectives underlying the administrator's power to appoint a manager was said by the Minister to be "to ensure that existing clients are not disadvantaged," we are not persuaded that this is necessarily achieved by the appointment of a manager with no qualifications or expertise and limited experience in strata management, a specialist field with its own complications. How the manager and his team are to address those concerns, beyond encouraging clients to engage new strata managers, is not explained by the evidence. Assertions that "his team" will support the manager, do not demonstrate that the manager will have access to the necessary expertise and support to assist and advise clients with strata difficulties, which can be complex, expensive and difficult. 8. We do not doubt the concerns raised by the decision of the administrator to cancel the respondents' licences, or that those concerns are deserving of weight. We accept that the findings made against the respondents raise real concerns about the competence and continued ability of PSMG to operate as a strata manager, and of Mr Wang to be a licensee. 9. Parliament has put in place an administrative review process, which the respondents are seeking to take advantage of, to test the administrator's decision and to ensure that the correct and preferable decision is reached. We are persuaded, having considered the interest of person affected by the administrative review applications, the public interest and the submissions made by the administrator, that it is both desirable and appropriate to make a stay order affecting the determination until the administrative review applications are decided. 10. We propose to make an order on appeal, in the terms agreed between the parties, affecting the determination until such time as the Tribunal determines the administrative review application. Order The Appeal Panel makes the following orders: 1. Leave to appeal granted. 2. Appeal Allowed. 3. The decision of the Tribunal made on 5 August 2024 is set aside and, in its place, the following order is made: "The decisions made on 22 July 2024 to cancel the licences of PSMG Pty Ltd, licence number 1688934 and Whitney Hong Wang, licence number 1092361 ("the licences") are stayed; and for all purposes the licences are to be treated as on foot from 22 July 2024 until further order of the Tribunal." ********** 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: 18 February 2025