Australia, July 14 -- New South Wales Land and Environment Court issued text of the following judgement on June 13:

1. On 20 August 2024 the Administrative and Equal Opportunity Division (AEOD) of the NSW Civil and Administrative Tribunal (NCAT) set aside a decision of a delegate of the Commissioner of Fair Trading (the appellant) to refuse to renew the Class 1 real estate licence of Ms Sarkees (the respondent). The Tribunal decided to grant her application to renew the licence.

2. Written reasons for the Tribunal's decision were provided to the parties on 21 October 2024. The appellant commenced an appeal, within time, against that decision on questions of law. The grounds of the appeal were that: the Tribunal failed to afford procedural fairness to the appellant, made certain findings which were legally unreasonable, and failed to comply with s 62(3)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) in respect of certain of its findings.

3. For the reasons set out below, we have decided that the appeal should be dismissed.

Background to decision under appeal

4. From April 2006, the respondent held various authorities under the Property and Stock Agents Act 2002 (NSW) (the PSA Act) which permitted her to undertake real estate agent or associated functions.

5. In March 2022 the respondent was charged with an offence under s 93T(1) of the Crimes Act 1900 (NSW). On 23 July 2023 the respondent entered a plea of guilty to a charge that she "ought reasonably to know" that she participated in a criminal group and that her participation in that group contributed to criminal activity.

6. The circumstances of the criminal activity involved the directors of the real estate agency for which the respondent worked operating a scheme, in 2021, which made fraudulent claims for COVID residential tenancy support payments.

7. On 26 July 2023, the Local Court dismissed the charge against the respondent without conviction under s 14 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Mental Health Forensic Provisions Act). The Court ordered the respondent be treated by a specified psychologist, Mr Attai of Mindstrong Consulting (the psychologist), under a treatment plan for 12 months.

8. The relevant Class 1 real estate agent licence under the PSA Act held by the respondent expired in September 2022. The respondent applied to renew her licence on 16 November 2023.

9. On 5 February 2024, the appellant refused the respondent's application for licence renewal on the basis of the respondent's mental capacity. The respondent sought an internal review of that refusal decision.

10. On 29 February 2024 the appellant provided internal review reasons affirming the original decision (of 5 February 2024) on an alternative basis, namely because the reviewer determined the respondent was not a fit and proper person to hold a licence under the PSA Act.

12 On 22 March 2024, the respondent made an administrative review application to NCAT in respect of the internal review decision made on 29 February 2024.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197626386e57b55e937d2dfc)

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