Youssef Nouh v Commissioner for NSW Fair Trading [2019] NSWSC 1303

Supreme Court New South Wales

Medium Neutral Citation: Youssef Nouh v Commissioner for NSW Fair Trading [2019] NSWSC 1303 Hearing dates: 17 September 2019 Decision date: 27 September 2019 Jurisdiction: Common Law Before: Hammerschlag J Decision: Proceedings dismissed Catchwords: ADMINISTRATIVE LAW – judicial review – Property, Stock and Business Agents Act 2002 (NSW) ss 118(2) and 222 – where a delegate of the Commissioner for NSW Fair Trading had power to issue a direction to freeze an account – whether form of direction complied with the requirements of the Act – whether there was a requirement to afford procedural fairness before or after giving the direction – whether the direction was invalid because it was unreasonable; HELD: direction valid Legislation Cited: Property, Stock and Business Agents Act 2002 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: Youssef Nouh - Plaintiff Commissioner for NSW Fair Trading - First Defendant David Byrne in his capacity as a delegate of the Commissioner for NSW Fair Trading - Second Defendant Representation: Counsel: A. Hopkins - Plaintiff M. O'Brien - Defendants

Solicitors: Reuben George Lawyers - Plaintiff Department of Finance, Services and Innovation NSW - First and Second Defendants File Number(s): 2019/145939

Judgment

Introduction 1. HIS HONOUR: The Property, Stock and Business Agents Act 2002 (NSW) (the Act) is an Act which provides for the regulation of property, stock and business agents. Division 3 of Part 8 is entitled 'Freezing of accounts'. 2. References below to sections are, unless the context indicates otherwise, references to sections of the Act. 3. Section 118 empowers the Commissioner for Fair Trading (who is referred to as the Secretary) to give a direction that an amount not be drawn from a specified account in a licensee's name or in which a licensee has an interest with a financial institution other than with the Secretary's written approval when it appears to the Secretary that a licensee, the person in charge of a licensee's business at a place, an employee of a licensee or any other person connected or formerly connected with a licensee has, or may have, stolen, misappropriated or misapplied trust money. 4. The plaintiff, Youssef Nouh (Nouh), is, or was, the director of Prestige Management Pty Ltd (the company) which at all material times was a licensed real estate agent. Nouh is the sole shareholder in the company. The company apparently traded under the names Prestige Strata and Timberland Real Estate. Maree Kylie Lane (Lane) was previously a director of the company, but remained associated with it. 5. On 14 December 2018, acting pursuant to s 118, the second defendant, David Byrne (Byrne), the Director of the Operations Division of NSW Fair Trading and a delegate of the Secretary, gave a direction (the direction) that 'any amount must not be drawn from the account with BSB 062-202 and account number 1032 6548 held at Commonwealth Bank of Australia in the name of Youssef Nouh.' I shall refer to this account as the account. 6. Nouh seeks an order quashing the direction 'by virtue of it being infected by jurisdictional error'. 7. His challenge fails. The proceedings must be dismissed. 8. The proceedings were brought outside the time limit of three months of the date of the decision prescribed in Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 59.10(1). [1] The proceedings were commenced on 9 May 2019. The period of three months had expired on 14 March 2019. Nouh seeks an order under UCPR r 59.10(2) extending the time for commencing proceedings. [2] I would not grant an extension. Nouh has not satisfactorily explained his delay, particularly given that he was legally represented from as early as 21 December 2018. Nevertheless, I heard full argument and will deal with his claim on its merits as if the extension had been granted.