Grant v Commissioner for Fair Trading; John B Grant Real Estate Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 268

Grant v Commissioner for Fair Trading; John B Grant Real Estate Pty Ltd v Commissioner for Fair Trading [2005] NSWADT 268

Although the Commissioner's original determination was justified on the material then available, subsequent material showed that the trust account irregularities had been resolved sufficiently and that the public had not suffered financially because deficits were repaid. Mr Grant nevertheless lacked the requisite competence to manage an operation of the Company's size and posed a real risk to consumers if he remained in management, but he should not be excluded from all work in the industry. Consumer protection could be achieved by imposing conditions preventing him from acting as licensee in charge, managing, or supervising a real estate agency for 6 months, while ongoing audit reports...

Jurisdiction
Australia
Judgment Date
25 November 2005
Procedural Posture
Application for Review of Determinations Under Section 192(1) of the Property Stock and Business Agents Act 2002 / Principal Matter
Outcome
Mr Grant's application succeeded in part: cancellation and disqualification were set aside and replaced with licence conditions for 6 months. The Company's application succeeded in part: the monetary penalty was set aside, but the determination was otherwise affirmed, including audit and compliance requirements.
Legal Topics
['cancellation of Real Estate Agent Licence' 'declaration That Agent Is a Disqualified Person' 'trust Account Irregularities' 'monetary Penalty' 'licence Conditions' 'financial Management Compliance Program' 'audit Reports']
['administrative Law' 'consumer Protection' 'real Estate Licensing' 'disciplinary Proceedings'] ['cancellation of Real Estate Agent Licence' 'declaration That Agent Is a Disqualified Person' 'trust Account Irregularities' 'monetary Penalty' 'licence Conditions' 'financial Management Compliance Program' 'audit Reports']

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Procedural Posture

Application for Review of Determinations Under Section 192(1) of the Property Stock and Business Agents Act 2002 / Principal Matter

Legal Issues

  1. 1 ["Whether the determination cancelling Mr Grant's licence and declaring him a disqualified person for 6 months should be set aside or varied." 'Whether the determination imposing a monetary penalty of 150 penalty units on John B Grant Real Estate Pty Ltd should be set aside or varied.' "Whether Mr Grant was a fit and proper person and possessed the requisite competence to be involved in the direction, management or conduct of the Company's real estate business." "Whether conditions on Mr Grant's licence and ongoing audit and compliance requirements for the Company would adequately protect consumers and the public."]

Ratio Decidendi

Although the Commissioner's original determination was justified on the material then available, subsequent material showed that the trust account irregularities had been resolved sufficiently and that the public had not suffered financially because deficits were repaid. Mr Grant nevertheless lacked the requisite competence to manage an operation of the Company's size and posed a real risk to consumers if he remained in management, but he should not be excluded from all work in the industry. Consumer protection could be achieved by imposing conditions preventing him from acting as licensee in charge, managing, or supervising a real estate agency for 6 months, while ongoing audit reports...

Court Disposition

Mr Grant's application succeeded in part: cancellation and disqualification were set aside and replaced with licence conditions for 6 months. The Company's application succeeded in part: the monetary penalty was set aside, but the determination was otherwise affirmed, including audit and compliance requirements.

Orders

  • ["In relation to application number 053008, the determination that Mr Grant's licence number 123933 be cancelled and that he be declared a disqualified person for a period of 6 months is set aside." "In place of that determination, conditions are to apply to Mr Grant's licence for a period of six months from the...