Smith v Commissioner for Fair Trading [2004] NSWADT 182

Smith v Commissioner for Fair Trading [2004] NSWADT 182

The Tribunal had jurisdiction to accept the application under s 55(2)(c) of the Administrative Decisions Tribunal Act 1997. The relevant question was whether, at the time of the Commissioner's decisions, Mr Smith as an undischarged bankrupt had taken all reasonable steps to avoid bankruptcy; his later discharge was not relevant. The statutory test did not extend to all conduct that caused the debts, but only to steps to avoid bankruptcy once bankruptcy was or should have been apparent. Mr Smith reduced debts, obtained financial advice, attempted negotiations with the judgment creditor, considered bankruptcy alternatives, and did not shield assets. A reasonable person with his knowledge...

Jurisdiction
Australia
Judgment Date
24 August 2004
Procedural Posture
Application for Administrative Review of Disciplinary Decisions Concerning a Real Estate Agent's Licence / Principal Matter; Final Decision
Outcome
Application successful; disciplinary decisions set aside and substituted determination made that Mr Smith was not a disqualified person.
Legal Topics
['merits Review' "cancellation of Real Estate Agent's Licence" 'disqualified Person' 'reasonable Steps to Avoid Bankruptcy' 'relevance of Subsequent Events' 'internal Review Requirement']
['administrative Law' 'occupational Licensing' 'real Estate Agents' 'bankruptcy' 'statutory Interpretation'] ['merits Review' "cancellation of Real Estate Agent's Licence" 'disqualified Person' 'reasonable Steps to Avoid Bankruptcy' 'relevance of Subsequent Events' 'internal Review Requirement']

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Procedural Posture

Application for Administrative Review of Disciplinary Decisions Concerning a Real Estate Agent's Licence / Principal Matter; Final Decision

Legal Issues

  1. 1 ["Whether the Tribunal had jurisdiction to review the Commissioner's decisions despite no internal review having been finalised." "Whether the Tribunal should assess the decisions by reference to the facts at the time of the Commissioner's decisions or by reference to Mr Smith's later discharge from bankruptcy." 'Whether Mr Smith took all reasonable steps to avoid bankruptcy within the meaning of s 16(1)(c) of the Property, Stock and Business Agents Act 2002.' "Whether the Commissioner's decisions to cancel Mr Smith's licence and make disqualification declarations were the correct and preferable decisions."]

Ratio Decidendi

The Tribunal had jurisdiction to accept the application under s 55(2)(c) of the Administrative Decisions Tribunal Act 1997. The relevant question was whether, at the time of the Commissioner's decisions, Mr Smith as an undischarged bankrupt had taken all reasonable steps to avoid bankruptcy; his later discharge was not relevant. The statutory test did not extend to all conduct that caused the debts, but only to steps to avoid bankruptcy once bankruptcy was or should have been apparent. Mr Smith reduced debts, obtained financial advice, attempted negotiations with the judgment creditor, considered bankruptcy alternatives, and did not shield assets. A reasonable person with his knowledge...

Court Disposition

Application successful; disciplinary decisions set aside and substituted determination made that Mr Smith was not a disqualified person.

Orders

  • ['The disciplinary decisions made in relation to the applicant are set aside.' 'In substitution for those decisions, the Tribunal determines that Mr Smith was not a "disqualified person" pursuant to s 16(1)(c) of the Property, Stock and Business Agents Act 2002 at the time the Commissioner made his decision because...