PB v Commissioner for Fair Trading [2005] NSWADT 41

PB v Commissioner for Fair Trading [2005] NSWADT 41

PB was an undischarged bankrupt within the 3 years preceding his licence restoration application, but the Tribunal was satisfied that he took all reasonable steps to avoid the bankruptcy. He was entitled to rely on legal advice in the Supreme Court proceedings, did not need to turn his mind to the bankruptcy in question until he lost those proceedings in October 1999, had no significant assets available to pay debts, and made genuine though naive efforts to negotiate settlement with the State Bank. In the circumstances, there were no further reasonable steps he could have taken that might have avoided the bankruptcy, so he was not a disqualified person under section 16(1)(d).

Jurisdiction
Australia
Judgment Date
25 February 2005
Procedural Posture
Application for Review of Refusal to Restore a Strata Managing Agent's Licence Under the Property Stock and Business Agents Act 2002 / Principal Matter
Outcome
The decision under review was set aside and PB was found not to be a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.
Legal Topics
["strata Managing Agent's Licence" 'disqualified Person' 'undischarged Bankrupt' 'reasonable Steps to Avoid Bankruptcy' 'review of Administrative Decision']
['administrative Law' 'occupational Licensing' 'property and Strata Management Regulation' 'bankruptcy'] ["strata Managing Agent's Licence" 'disqualified Person' 'undischarged Bankrupt' 'reasonable Steps to Avoid Bankruptcy' 'review of Administrative Decision']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Review of Refusal to Restore a Strata Managing Agent's Licence Under the Property Stock and Business Agents Act 2002 / Principal Matter

Legal Issues

  1. 1 ['Whether PB was a disqualified person for the purposes of section 16(1)(d) of the Property, Stock and Business Agents Act 2002.' 'Whether PB took all reasonable steps to avoid the bankruptcy.' 'When PB knew, or ought to have known, that the bankruptcy in question was a possibility.' 'What steps PB took to avoid that bankruptcy.']

Ratio Decidendi

PB was an undischarged bankrupt within the 3 years preceding his licence restoration application, but the Tribunal was satisfied that he took all reasonable steps to avoid the bankruptcy. He was entitled to rely on legal advice in the Supreme Court proceedings, did not need to turn his mind to the bankruptcy in question until he lost those proceedings in October 1999, had no significant assets available to pay debts, and made genuine though naive efforts to negotiate settlement with the State Bank. In the circumstances, there were no further reasonable steps he could have taken that might have avoided the bankruptcy, so he was not a disqualified person under section 16(1)(d).

Court Disposition

The decision under review was set aside and PB was found not to be a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.

Orders

  • ['The decision under review is set aside.' 'In substitution for that decision, I find that PB is not a disqualified person pursuant to section 16(1)(d) of the Property, Stock and Business Agents Act 2002 because he took all reasonable steps to avoid the bankruptcy.']