Smart v Commissioner for Fair Trading [2005] NSWADT 33

Smart v Commissioner for Fair Trading [2005] NSWADT 33

Mr Smart was not a disqualified person under s 16(1)(c) Property, Stock and Business Agents Act 2002 because, from the time he should have been aware bankruptcy was a possibility (October 2002), he took all reasonable steps to avoid it, including negotiating repayment with creditors and seeking financial advice; there were no other reasonable steps he could have taken.

Jurisdiction
Australia
Judgment Date
22 February 2005
Procedural Posture
Licence Cancellation Review / Tribunal Decision
Outcome
Applicant successful; licence cancellation decision set aside
Legal Topics
['real Estate Agent Licensing' 'bankruptcy and Disqualification Under S 16(1)(c) Property, Stock and Business Agents Act 2002']
['administrative Law' 'property Law'] ['real Estate Agent Licensing' 'bankruptcy and Disqualification Under S 16(1)(c) Property, Stock and Business Agents Act 2002']

Case Brief

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Procedural Posture

Licence Cancellation Review / Tribunal Decision

Legal Issues

  1. 1 ['Whether Mr Smart took all reasonable steps to avoid the bankruptcy causing disqualification under s 16(1)(c) Property, Stock and Business Agents Act 2002']

Ratio Decidendi

Mr Smart was not a disqualified person under s 16(1)(c) Property, Stock and Business Agents Act 2002 because, from the time he should have been aware bankruptcy was a possibility (October 2002), he took all reasonable steps to avoid it, including negotiating repayment with creditors and seeking financial advice; there were no other reasonable steps he could have taken.

Court Disposition

Applicant successful; licence cancellation decision set aside

Orders

  • ["The decision to cancel Mr Smart's licence is set aside." 'In substitution for that decision, the Tribunal determines that Mr Smart was not a disqualified person pursuant to s 16(1)(c) of the Property, Stock and Business Agents Act 2002.']