Lisimcol Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 2

Lisimcol Pty Ltd v Commissioner for Fair Trading [2023] NSWCATOD 2

The Applicant contravened s 111(1) of the Property and Stock Agents Act 2002 (NSW) because it did not lodge or cause the required trust account audit to be completed within the required time, including the extended deadline. The Tribunal accepted the auditor's evidence that he was not instructed or made aware of the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 January 2023
Procedural Posture
External Review of Disciplinary Action Against Real Estate Licence Holder / Review of Internally Affirmed Decision; Decision Under Review Affirmed
Outcome
The decision under review is affirmed.
Legal Topics
['trust Account Audit Requirements' 'disciplinary Action' 'failure to Lodge Trust Account Audit' 'adequacy of Penalty' 'correct and Preferable Decision']
['administrative Law' 'licensing' 'real Estate and Property Agents Regulation'] ['trust Account Audit Requirements' 'disciplinary Action' 'failure to Lodge Trust Account Audit' 'adequacy of Penalty' 'correct and Preferable Decision']

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Procedural Posture

External Review of Disciplinary Action Against Real Estate Licence Holder / Review of Internally Affirmed Decision; Decision Under Review Affirmed

Legal Issues

  1. 1 ['Whether the Applicant contravened s 111(1) of the Property and Stock Agents Act 2002 (NSW) by failing to cause records and documents for its trust account to be audited within the required time.' 'Whether there were grounds for disciplinary action under s 191(a) of the Property and Stock Agents Act 2002 (NSW).' 'Whether a reprimand and monetary penalty of $5,500 under s 192 of the Property and Stock Agents Act 2002 (NSW) was the correct and preferable decision.']

Ratio Decidendi

The Applicant contravened s 111(1) of the Property and Stock Agents Act 2002 (NSW) because it did not lodge or cause the required trust account audit to be completed within the required time, including the extended deadline. The Tribunal accepted the auditor's evidence that he was not instructed or made aware of the Applicant's trust account until 12 July 2021, rejected the submission that copied correspondence or a Service NSW glitch constituted instructions to audit, and found the failure resulted from the Applicant's own inadequate administrative systems. Given the importance of trust account audits to consumer confidence and industry standards, the reprimand and $5,500 monetary...

Court Disposition

The decision under review is affirmed.

Orders

  • ['The decision under review is affirmed.']