Lynch v Commissioner of Fair Trading [2014] NSWCATAD 105

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lynch v Commissioner of Fair Trading [2014] NSWCATAD 105 Hearing dates: 14 July 2014 Decision date: 22 July 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: 1. The decision of the Director General of Fair Trading to refuse Mr Lynch's application for restoration of his real estate agent's licence is affirmed. 2. The decision of the Director General of Fair Trading to refuse to renew the corporation licence of Paramount Real Estate Services Pty Ltd is affirmed. Catchwords: Occupational licencing - involvement with companies in external administration - whether disqualified person took all reasonable steps to avoid the company becoming an externally-administered body corporate Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Corporations Act 2001(Cth) Property, Stock and Business Agents Act 2002 (NSW) Cases Cited: Deputy Commissioner of Taxation v Saunig (2002) 55 NSWLR 722; [2002] NSWCA 390 Category: Principal judgment Parties: Craig Lynch (Applicant) in 1420109 Paramount Real Estate Services Pty Ltd (Applicant) in 1420110 Commissioner for Fair Trading (Respondent) Representation: C Lynch (Applicant in person) W Maynard (Respondent) File Number(s): 1420109,1420110

reasons for decision

Introduction 1These proceedings concern two decisions made by the Commissioner for Fair Trading under the Property, Stock and Business Agents Act 2002 (NSW). The first decision was that Mr Lynch's application for restoration of his real estate agent's licence be refused (File No 1420109). The second decision was that an application by Paramount Real Estate Services Pty Ltd, (PRES) a company of which Mr Lynch is a director, for renewal of its corporation licence be refused (File No 1420110). 2Mr Lynch is a 'disqualified person' under the Property, Stock and Business Agents Act because he was, in the last 3 years, a director of an externally-administered body corporate, Paramount Finance & Investment Services Pty Ltd (PFIS): s 16(1A)(c). The 3 year disqualification period commenced in September 2012. 3The Commissioner may exempt Mr Lynch from being disqualified by certifying that "he is satisfied that (he) . . . took all reasonable steps (while concerned in the management of, or a director of, PFIS) . . . to avoid it becoming an externally-administered body corporate." In determining what reasonable steps could have been taken, the Commissioner is to have regard to "the steps that could have been taken by (Mr Lynch) . . . from the time that the financial difficulties that gave rise to the outcome first arose."