Gilder v Commissioner of Fair Trading [2019] NSWCATOD 80

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Gilder v Commissioner of Fair Trading [2019] NSWCATOD 80 Hearing dates: 23 April 2019 Date of orders: 23 May 2019 Decision date: 23 May 2019 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: The decision of the Commissioner for Fair Trading that Mr Gilder's registration should be cancelled under the Property, Stock and Business Agents Act 2002 is set aside. Catchwords: Real Estate agent - cancellation of licence - declaration that agent is disqualified person- annulment of bankruptcy- reasonable steps to avoid the bankruptcy Legislation Cited: Administrative Decisions Tribunal Act 1997 New South Wales Retirement Villages Act 1999 Property, Stock and Business Agents Act 2002 Cases Cited: Brandt v Commissioner of Fair Trading [2005] NSWADT 26 Davidson v Commissioner for Fair Trading, Office of Fair Trading [2004] NSWADT 200 McDonald v Commissioner for Fair Trading [2004] NSWADT 124 Smart v Commissioner for Fair Trading [2005] NSWADT 33 Young v Paddle Brothers Pty Ltd [1956] VicLawRp 6; [1956] VLR 38 Category: Principal judgment Parties: Kelvin Gilder (Applicant) Department of Fair Trading (Respondent) Representation: Solicitors: Mr Coss (Respondent) File Number(s): 2018/00320015 Publication restriction: N/A

REASONS FOR DECISION

Introduction 1. Mr Kelvin Gilder was the holder of a certificate of registration and later a licence, as a real estate agent from July 1997. His licence was cancelled by the Commissioner for Fair Trading (the Commissioner) in August 2018. 2. On 16 May 2018 Mr Gilder's petition to be declared bankrupt was accepted. On 30 July 2018 the Commissioner for Fair Trading wrote to Mr Gilder asking him to show cause as to why disciplinary action should not be taken against him on the grounds that he had been declared bankrupt and was now a disqualified person. Mr Gilder responded to the notice to show cause. However, on 22 August 2018 the Commissioner again wrote to Mr Gilder advising that it had determined to take disciplinary action against him and to cancel his real estate agent's licence. Further the Commissioner declared Mr Gilder to be a disqualified person for the purposes of the Property, Stock and Business Agents Act 2002 (the Act) until 15 May 2024 and disqualified Mr Gilder from being involved in the direction, management or conduct of the business of a licensee under the Act until 15 May 2024. 3. Mr Gilder sought review of the decision in the Tribunal.