Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 109 (15 April 2008)

Last Updated: 15 April 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Stojanovic v Commissioner for Fair Trading, New South Wales Office of Fair Trading [2008] NSWADT 109


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Radoslav Rajko Stojanovic



FILE NUMBERS:
073333

HEARING DATES:
19 March 2008

SUBMISSIONS CLOSED:
20 March 2008



DATE OF DECISION:
15 April 2008

BEFORE:
Handley R - Judicial Member





LEGISLATION CITED:
Property, Stock and Business Agents Act 2002

CASES CITED:
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Harvey v The Law Society of NSW (1975) 49 ALJR 362
Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127
Law Society of NSW v Foreman (1994) 34 NSWLR 408
McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994)
Rich & Anor v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129

TEXTS CITED:


APPLICATION:
Real Estate agent - certificate of registration - refusal

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
A Rogers, barrister
RESPONDENT
M Grinbergs, solicitor


ORDERS:
The Commissioner’s decision is affirmed.


Reasons for Decision:

REASONS FOR DECISION

1 This matter involves an application by Radoslav Stojanovic for a review of a decision of the Commissioner for Fair Trading (‘the Commissioner’) to refuse Mr Stojanovic’s application for a certificate of registration as a real estate salesperson on the ground, first, that he is a ‘disqualified person’, and, second, that he is not a ‘fit and proper person’ to hold such a certificate.

Background

2 Mr Stojanovic is aged 48. He has worked in the real estate industry since about 1979, first as a property manager, and then as a salesperson/agent. He was granted a real estate agent’s licence (number 185426) in 1994. In 1996, Mr Stojanovic went into partnership with Peter Kallinicos in a real estate business ‘Randwick City Realty Pty Ltd’, trading as LJ Hooker Randwick, for which Mr Stojanovic obtained a corporate licence (number 944580).

3 Between 1998 and 2001, Mr Stojanovic and Mr Kallinicos purchased a number of properties (in the name of a third party nominee) in which Randwick City Realty acted as an agent for the vendor, the Public Trustee. They then renovated the properties and sold them on at a profit. Neither the vendor of the properties nor the subsequent purchasers were made aware of Mr Stojanovic’s and Mr Kallinicos’ interest in the transactions. Mr Stojanovic and Mr Kallinicos ceased this practice when approached by a reporter for the television program ‘Today Tonight’ in 2001.

4 On 16 December 2005, a delegate of the Commissioner issued Mr Stojanovic with a notice to show cause why disciplinary action should not be taken against him. On 8 February 2006, a delegate of the Commissioner found that Mr Stojanovic and Randwick City Realty, for which Mr Stojanovic was the licensee in charge, had contravened provisions of the Property, Stock and Business Agents Act 2002 (‘the Act’) and had acted unlawfully, improperly and unfairly. The delegate also found that Mr Stojanovic had engaged in dishonest conduct and that neither he nor Randwick City Realty was a ‘fit and proper person’ to hold a licence. The delegate made the following determination:

"Pursuant to section 192(1)(g) of the Act I determine that licence number 185426 held by Radoslav Rajko Stojanovic be cancelled with effect from 27 February 2006.

Pursuant to section 192(1)(h) and (i) of the Act I determine that Radoslav Rajko Stojanovic is disqualified for a period of ten years from 27 February 2006 from being involved in the direction, management or conduct of the business of a licensee.

Pursuant to section 192(1)(g) of the Act I determine that licence number 944580 held by Randwick City Realty Pty Ltd be cancelled with effect from 27 February 2006."

5 Mr Stojanovic applied to the Tribunal for a review of this decision but, on 7 November 2006, withdrew that application.

6 On 24 April 2007, Mr Stojanovic applied to the Office of Fair Trading (‘the OFT’) for a certificate of registration as a ‘real estate salesperson’. On 3 July 2007, a delegate of the Commissioner refused this application on the ground that (1) Mr Stojanovic was a disqualified person, and (2) the delegate was not satisfied that Mr Stojanovic was a fit and proper person to hold a licence or certificate of registration under the Act. On 26 July 2007, Mr Stojanovic lodged an application for an internal review of this decision.

7 On 6 August 2007, another delegate of the Commissioner decided that because Mr Stojanovic is a disqualified person, and as the previous delegate had decided Mr Stojanovic is not a fit and proper person to hold a licence or certificate of registration under the Act, he was ineligible to hold a certificate of registration, and the application for a certificate was properly refused. On 7 November 2007, Mr Stojanovic lodged an application for a review of this decision by the Tribunal.

The relevant legislation

8 The distinction between a ‘real estate agent’ and a ‘real estate salesperson’ is revealed by the definitions for these terms that appear in section 3 of the Act:

"‘real estate agent’ means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an auctioneer of land or as an agent:

(a) for a real estate transaction, or

(b) for inducing or attempting to induce or negotiating with a view to inducing any person to enter into, or to make or accept an offer to enter into, a real estate transaction or a contract for a real estate transaction, or

(c) for the introduction, or arranging for the introduction, of a prospective purchaser, lessee or licensee of land to another licensed agent or to the owner, or the agent of the owner, of land, or

(d) collecting rents payable in respect of any lease of land and otherwise providing property management services in respect of the leasing of any land, or

(e) for any other activity in connection with land that is prescribed by the regulations for the purposes of this definition.

but does not include a person who carries on business as an auctioneer or agent in respect of any parcel of rural land unless the regulations otherwise provide.

Note: This definition is not limited to the selling of land and extends to an agent acting on behalf of the buyer of land (a buyer’s agent).

As noted in section 168 of the Retirement Villages Act 1999, a selling agent acting on the sale of residential premises in a retirement village must be licensed as a real estate agent under this Act.

‘real estate salesperson’ means a person (other than the holder of a real estate agent’s licence) who, as an employee of a real estate agent or a corporation that carries on the business of a real estate agent:

(a) exercises any of the functions of a real estate agent, or

(b) engages in any other activity that is prescribed by the regulations for the purposes of this definition."

9 It is apparent from these definitions that a real estate salesperson can only ever be an employee of a real estate agent or corporation carrying on the business of a real estate agent. Pursuant to section 17(1) of the Act, the Commissioner may grant licenses to real estate agents and certificates of registration to real estate salespersons. Section 14(3) states that a person is eligible to hold a certificate of registration only if the Commissioner is satisfied that the person:

"(a) is an individual who is at least 16 years of age, and

(b) is a fit and proper person to hold a certificate of registration, and

(c) has the qualifications required for the issue of a certificate of registration of the class concerned, and

(d) is not a disqualified person."

10 Section 16(1)(j) states relevantly that a person is a ‘disqualified person’ if the person:

"(j) is for the time being declared to be a disqualified person under Part 12 (Complaints and disciplinary action), "

11 Part 12 of the Act provides the grounds for disciplinary action in section 191, including, relevantly, where:

"(a) the person has contravened a provision of this Act or any other Act administered by the Minister, or the regulations under any such Act, whether or not the person has been prosecuted or convicted of an offence in respect of the contravention, ...

(c) the person has, in the course of carrying on business or exercising functions under the licence or certificate of registration, acted unlawfully, improperly, unfairly or incompetently, ...

(e) the person is not a fit and proper person to be involved in the direction, management or conduct of the business of a licensee,"

12 Pursuant to section 192(2) of the Act, the Commissioner is empowered to take one or more of the forms of disciplinary action against a person set out in section 192(1). These forms of disciplinary action range from a caution or reprimand to disqualification. The relevant disciplinary action in Mr Stojanovic’s case is that provided in section 192(1)(g), (h) and (i), empowering the Commissioner to:

"(g) cancel the person’s licence or certificate of registration,

(h) declare the person to be a disqualified person for the purposes of this Act, either permanently or for a specified period,

(i) disqualify the person from being involved in the direction, management or conduct of the business of a licensee."

(1) Is Mr Stojanovic a ‘disqualified person’?

Submissions

13 The first issue the parties asked the Tribunal to determine is whether Mr Stojanovic is a ‘disqualified person’. Mr Rogers, for Mr Stojanovic, referred the Tribunal to section 16(1) of the Act, which defines who is a ‘disqualified person’ for the purposes of the Act. The only relevant provision in Mr Stojanovic’s case is section 16(1)(j).

14 Mr Rogers, for Mr Stojanovic, submitted that it is clear from the wording of the determination dated 6 February 2006 that Mr Stojanovic’s disqualification was only from being involved in the direction, management or conduct of a business under section 192(1)(i), and was not the more general disqualification permitted by section 192(1)(h). It is the wording of the determination itself that is conclusive. The fact that the accompanying letter of 8 February 2006 is differently expressed does not assist in interpreting the determination. If reference is to be made to this accompanying letter, reference should also be made to the warning that appears on the OFT website in relation to Mr Stojanovic, which states that "[p]ursuant to section 192(1)(i) of the Act Mr Radoslav Rajko Stojanovic is disqualified from being involved in the management, direction or conduct of the business of a licensee for a period of ten years".

15 Mr Rogers submitted that section 192(1)(h) and (i) are discrete forms of disciplinary action that can be taken by the Commissioner. There is no "and" linking the two provisions. It is obvious that the disqualification power in section 192(1)(i) must operate for a period even though no period is referred to in the provision.

16 Mr Grinbergs, for the Commissioner, submitted that the power to declare a person to be a disqualified person for the purposes of the Act "either permanently or for a specified period" is only available to the Commissioner under section 192(1)(h) and not under section 192(1)(i). Although not expressly provided for in the determination of 6 February 2006, the disqualification is for all purposes of the Act, including an application for a certificate of registration. In Mr Stojanovic’s case, the disqualification is valid until 31 May 2016 (as the stay was lifted on 31 May 2006).

Discussion

17 In my view, a reading of paragraphs (a) to (i) of section 192(1) indicates that, at least in general terms, these are discrete forms of disciplinary action open to the Commissioner, and section 192(2) provides for one or more of these disciplinary actions to be taken against a person. Section 192(1)(h) provides for a declaration that a person is a disqualified person for the purposes of the Act to apply either permanently or for a specified period. There is no reference to a period for the disqualification under section 192(1)(i).

18 However, whilst discrete forms of disciplinary action, the wording of the paragraphs (h) and (i) suggests that a declaration that a person is a disqualified person - for the purposes of the Act - is made under section 192(1)(h). But then, in such a case, pursuant to section 192(1)(i), a person can also be disqualified from being involved in the direction, management or conduct of the business of a licensee, the implication being that this extended disqualification is effective for the duration of the declaration under section 192(1)(h). Whether or not a disqualification can be made under section 192(1)(i) in the absence of a declaration under section 192(1)(h) is unclear. It could be argued that it is implicit in the wording of section 192(1)(i) that in order to give effect to the power, the provision should be interpreted as meaning that the disqualification can be made either permanently or for a specified period. In my view, the matter should be clarified through appropriate legislative amendment.

19 In Mr Stojanovic’s case, the wording of the determination dated 6 February 2006 is confused. While referring to both section 192(1)(h) and (i), the disqualification, albeit that it is stated to be for a period of 10 years, is otherwise expressed in terms of the wording of section 192(1)(i). There is no reference to Mr Stojanovic being declared a disqualified person for the purposes of the Act. In my view, an ordinary reading of the determination would not lead to a person understanding that the determination also encompassed a declaration under section 192(1)(h). Thus, I am not satisfied the determination is effective to achieve that result.

20 I note that in the accompanying letter dated 8 February 2006 the delegate states that in accordance with section 192(1)(h) and (i), he has "declared Mr Stojanovic a disqualified person for the purposes of the Act for a specified period of ten years from 27 February 2006 from being involved in the direction, management or conduct of the business of a licensee". In my view, while not as confused as the determination, this still emphasises disqualification from involvement in the direction, management or conduct of the business. In any event, the person who is the subject of an order under section 192(1) ought to be able to rely on the wording of the determination for an understanding of the disciplinary action being taken by the Commissioner.

21 I have disregarded the wording of the OFT’s website’s entry concerning Mr Stojanovic - which I take to be intended as information for the general public - although I note that no clear distinction is drawn between the disciplinary action taken pursuant to section 192(1)(h) and that taken pursuant to section 192(1)(g) (cancellation of a licence) and section 192(1)(i).

22 My conclusion is that the determination did not effect a valid declaration that Mr Stojanovic is a disqualified person under section 192(1)(h). Thus, he is not a "disqualified person" for the purpose of section 14(3)(d) of the Act. Despite uncertainty, first, about whether an order can be made under section 192(1)(i) without a valid order under section 192(1)(h) and, second, about whether the power to disqualify under section 192(1)(i) permits a period of disqualification to be specified, I will assume, since the disqualification from involvement in direction, management or control was not challenged by Mr Stojanovic, that such a disqualification for a period of 10 years is effective in this case.

(2) Is Mr Stojanovic a ‘fit and proper person’ to hold a certificate of registration as a real estate salesperson?

23 Having so determined the first issue, I must now consider whether Mr Stojanovic is a fit and proper person to hold a certificate of registration as a real estate salesperson. As stated above, section 14(3) provides that a person is eligible to hold a certificate of registration only if, amongst other requirements, the person "(b) is a fit and proper person to hold a certificate of registration".

The Applicant’s evidence

24 Mr Stojanovic provided an affidavit dated 28 February 2008 and gave oral evidence at the hearing. He stated that, initially, he worked as a property manager and, later as a sales manager. He obtained his real estate licence in 1994 and decided to "go out on his own" in 1996. He formed a partnership with an old school friend, Peter Kallinicos, who was running a business trading as LJ Hooker Newtown. They formed a company Randwick City Realty Pty Ltd and commenced trading as LJ Hooker Randwick, with Mr Stojanovic obtaining a corporate licence for the company. Mr Stojanovic said he ran this business successfully from 1996 to 2006, when his licenses were cancelled.

25 Mr Stojanovic said he could not remember whether it was his idea or Mr Kallinicos’ to purchase properties marketed by Randwick City Realty. The opportunity arose when the Public Trustee placed properties for sale through LJ Hooker Randwick. If Mr Stojanovic saw a property worth purchasing, he would tell Mr Kallinicos, who was able to arrange finance through Macquarie Bank. Mr Stojanovic would get a third party proxy to bid at auction for the property in his own name up to an agreed figure. If the bid was successful, Mr Stojanovic and Mr Kallinicos would develop the property and then on-sell it. They would pay their third party proxy $2,000 for doing his job. Mr Stojanovic and Mr Kallinicos would split the profits.

26 Mr Stojanovic said the profits for the sale of the properties projected by the OFT were misleading because these are gross profits and fail to take into account the costs involved - for example, the cost of the transactions including legal costs and advertising, the cost of finance and of extensive renovations.

27 Mr Stojanovic said there was no excuse for his participation in the arrangement - the motivation was purely that of making money. He knew at the time that he was doing wrong. However, he did nothing to artificially suppress the price of the properties being offered at auction and, in his view, the properties sold at no lower price than they would have had he not been involved in the transaction. He took the view that as no-one was being hurt, it did not matter.

28 Mr Stojanovic said they stopped the arrangement when he was approached by a reporter from the television show ‘Today Tonight’, who had become aware of the practice. The matter went to air and he later received a ‘Show Cause Notice’ from the OFT in relation to the claims made by the reporter on the broadcast program.

29 Mr Stojanovic said the only work he has ever done has been in the real estate industry. Losing his licence was a devastating blow. At that time, he lacked insight into the seriousness of his behaviour and did not then pause to reflect on it. This was partly due to the devastating effect that cancellation of his licence had on his family, including the Bank selling their house, with their situation being that, essentially, they now have no assets. By the middle of 2007, Mr Stojanovic had had time to reflect on his conduct, and accepted that "I had behaved extremely badly". He agreed to provide additional information to the OFT, and gave a taped interview to an OFT investigator over the course of two days.

30 Mr Stojanovic said he is willing to accept that he ought not to be able to operate a real estate agency for the 10 year period imposed by the Commissioner’s delegate. However, he considers himself suitable to hold a certificate to operate in the real estate industry in the limited role of an employee. He would not be tempted to engage in any wrongdoing, and the employment he has been offered with Park Coast Realty Pty Ltd would include putting in place procedures to prevent any misconduct. Mr Stojanovic said he would not oppose the imposition of a condition requiring that he give notice of any proposed change of employment, so that the suitability of any other potential employer may be assessed. He concluded by stating: "I am tremendously sorry for what I did."

31 Mr Stojanovic said also provided a statement by Sam Capra dated 29 February 2008. Mr Capra, a director of Park Coast Realty Pty Ltd, said he has worked in the real estate industry for 24 years and has conducted his own business for the past 15 years. He has known Mr Stojanovic for almost 25 years since they studied real estate together at Randwick TAFE, and is aware of Mr Stojanovic’s disqualification and the reasons for it. He said he was surprised that Mr Stojanovic had engaged in such a practice as he had regarded Mr Stojanovic as a person of integrity. He still considers him to be so, although accepts that Mr Stojanovic’s behaviour "is a cloud over him which needs to be viewed most seriously".

32 Mr Capra said he has told Mr Stojanovic that he is willing to employ him if Mr Stojanovic is able to obtain a real estate salesperson’s certificate. Mr Capra is confident that the procedures in place at Park Coast Realty, which he described, would avoid any repeat of Mr Stojanovic’s behaviour. He said he is willing to give an undertaking that he would notify an appropriate person if Mr Stojanovic ceases or proposes to cease employment with Park Coast Realty.

Submissions

33 Mr Rogers submitted that the requirement for a person to be licensed is designed to protect the public, rather than to punish the person whose conduct is found to be in breach of professional standards: Harvey v The Law Society of NSW (1975) 49 ALJR 362, at 364 (per Barwick CJ); Law Society of NSW v Foreman (1994) 34 NSWLR 408, at 438ff (per Mahoney JA); Rich & Anor v Australian Securities & Investments Commission [2004] HCA 42; (2004) 220 CLR 129 (‘Rich v ASIC’), distinguished. In Mr Stojanovic’s case, he is only seeking the grant of a real estate salesperson’s certificate and not a licence, meaning that he can only work as an employee. Mr Capra has stated that he has procedures in place to ensure that Mr Stojanovic’s misconduct cannot be repeated. Mr Capra’s statement was also in part a character reference for Mr Stojanovic.

34 Mr Rogers said the misconduct in question ceased in 2001 when Mr Stojanovic was confronted by a television reporter. It is not recent conduct. Since then, Mr Stojanovic has faced his shortcomings. He has given candid evidence of what occurred and has acknowledged his misconduct. It should, however, be noted that Mr Stojanovic did not artificially suppress the price of the properties purchased. He has also co-operated with an OFT investigator in voluntarily disclosing information of which the OFT was not previously aware.

35 Mr Rogers said there is no sensible reason to deprive Mr Stojanovic of a certificate. Restricting him to a certificate operates as a deterrent, and his disqualification from participating in the management of a real estate business is effective until 2016. Mr Stojanovic is currently in extreme financial stress because he is unable to work in the industry in which he has worked since starting work. Mr Rogers proposed that the issue of a certificate to Mr Stojanovic could be subject to a condition requiring him to notify the Commissioner of any change in his employment and preventing him having access to client moneys.

36 Mr Grinbergs referred to the High Court decision in Rich v ASIC which, he submitted, dismisses the distinction between ‘protective’ and ‘punitive’ in disciplinary proceedings. The Commissioner submits that the purpose of the determination dated 6 February 2006 is not only protective, but also safeguards the public interest and is a deterrent, both personal and general. In this instance, there is a deterrent effect for others in the real estate industry and there is a need not only to protect consumers, but also to protect public confidence in the real estate industry.

37 Mr Grinbergs said that Mr Stojanovic’s misconduct commenced only two years after the grant of his corporate licence in 1996 and continued for a period of about three years between 1998 and 2001, only stopping when allegations were broadcast on the ‘Today Tonight’ television program. The misconduct comprised "systemised dishonesty", "an elaborate scheme of deception and breach of public confidence and trust involving the lack of full and frank disclosures of his interests in real estate transactions for his own personal benefit". Mr Grinbergs referred to the three characteristics of ‘a fit and proper person’ identified in Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at paragraph 9: honesty, knowledge and ability. Mr Stojanovic has not shown any significant period of trading responsibly nor any significant contrition or rehabilitation in respect of the misconduct.

38 Mr Grinbergs said the context in which the issue of whether Mr Stojanovic is a fit and proper person must be considered is that of the real estate industry (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, at paragraph 36). If the definitions of ‘real estate salesperson’ and ‘real estate agent’ in section 3 of the Act are compared, the activities of a real estate salesperson are almost identical to those of a real estate agent except for the supervision of employees. A high level of honesty and candour is required to maintain public confidence in the real estate industry.

39 Mr Grinbergs submitted that the seriousness of Mr Stojanovic’s misconduct means that no conditions could suitably address the protection of the public. In any event, the conditions proposed by Mr Rogers are superfluous, being no more than existing requirements under the Act. The misconduct involved dishonesty, breach of fiduciary duty and non-disclosure. In relation to Mr Capra’s safeguards, he does not, for example, address the need to ensure the honesty of transactions in which Mr Stojanovic might be involved. Mr Grinbergs therefore concluded that Mr Stojanovic is not a fit and proper person to be a member of the real estate profession in accordance with the requirements of the Act.

Discussion

40 The meaning of the phrase ‘fit and proper person’ was discussed by the High Court in Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127, at paragraph 9, where Dixon CJ, McTiernan and Webb JJ said:

"The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability: ‘honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it’ - Coke."

41 The meaning of the phrase was also discussed in Australian Broadcasting Commission v Bond [1990] HCA 33; (1990) 170 CLR 321, where Toohey and Gaudron JJ said at paragraph 36 of their judgment:

"The expression ‘fit and proper person’, standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur."

42 As their Honours recognised, at paragraph 66, whether a person is a fit and proper person involves a value judgement to be made in the context of the particular activity to be licensed. In McBride v Walton (NSW Court of Appeal, unreported, 15 July 1994: see, in particular, the judgments of Kirby P, at paragraph 21 to paragraph 26, and Powell JA, at paragraph 59 to paragraph 73), the Court said where there is evidence of misconduct, there should be consideration of any explanation for that misconduct, its seriousness to the particular activity, the motivation of the person, whether the misconduct is an isolated incident, the person’s underlying qualities of character, and the person’s conduct since the incident and whether this demonstrates recognition of the misconduct and subsequent reform.

43 Mr Stojanovic’s misconduct involved dishonesty over a period of about three years from 1998 to 2001, which only ceased when Mr Stojanovic was confronted by a reporter from the ‘Today Tonight’ television program. Mr Stojanovic and Mr Kallinicos concealed their beneficial interest in properties sold by Randwick City Realty at auction on behalf of the Public Trustee and then on-sold, after renovation, to other purchasers. In doing so, they made a substantial profit. Mr Stojanovic states that he did nothing to artificially suppress the price of the properties being offered at auction and, in his view, the properties sold at no lower price than they would have had he not been involved in the transaction. He took the view that as no-one was being hurt, it did not matter.

44 Clearly, in the real estate industry, honesty and trust are of paramount importance. Mr Stojanovic’s initial attitude to his misconduct, which, according to his statement, persisted until late 2006/early 2007, was focused on the devastating effect that cancellation of his licence had on him and his family, rather than on the seriousness of his misconduct. It is only in the last 18 months that he has recognised this.

45 Mr Stojanovic obviously accepts that his misconduct warrants appropriate disciplinary action, having withdrawn his appeal against the delegate’s determination dated 6 February 2006. The question is whether sufficient rehabilitation has occurred to satisfy the Commissioner, and the Tribunal, now standing in the shoes of the Commissioner, that Mr Stojanovic is a fit and proper person to hold a certificate of registration as a real estate salesperson. Since the focus is on whether Mr Stojanovic is a fit and proper person, and the Tribunal is not reviewing whether the disciplinary action imposed by the delegate was appropriate, discussion of whether the disciplinary action imposed is protective or punitive is not the central issue.

46 The central issue is whether Mr Stojanovic is a fit and proper person in the context of the certificate of registration sought which, pursuant to the definitions of ‘real estate agent’ and ‘real estate salesperson’ in section 3 of the Act, would enable him to undertake most of the activities of a real estate agent, albeit that this could only be in the course of his employment by a real estate agent. In determining whether Mr Stojanovic is a fit and proper person, consideration must be given to the context in which the determination is made, one in which there is a need to protect members of the public, deter others in the real estate industry from similar misconduct and maintain public confidence in the real estate industry as a whole.

47 I am not satisfied from the evidence that Mr Stojanovic has yet undergone sufficient rehabilitation to establish that he is a fit and proper person to hold a certificate of registration as a real estate salesperson. By his own admission, it was only about 18 months ago that he recognised the seriousness of his misconduct, notwithstanding that the misconduct ceased in 2001. This is not to say that he will not in the future be able to return to work as a real estate salesperson and perhaps, eventually, as an agent, but at present it is too soon and, in my view, Mr Stojanovic needs to provide other character evidence to support his contention of contrition and rehabilitation. The dishonest conduct in which he was involved for a period of about three years and against which members of the public need to be protected, is of a kind to undermine public confidence in the real estate profession. At this time, only two years after the cancellation of his licence and in circumstances where he did not recognise the seriousness of that misconduct until about 18 months ago, I am not satisfied that members of the public knowing of Mr Stojanovic’s misconduct would have confidence in him as a real estate salesperson.

48 Having found that Mr Stojanovic is not at this time a fit and proper person to hold a certificate of registration as a real estate salesperson, Mr Stojanovic is thereby ineligible to hold such a certificate pursuant to section 14(3)(b) of the Act, and the Commissioner’s decision to refuse Mr Stojanovic’s application for a certificate on this ground is affirmed.

Order

The Commissioner’s decision is affirmed.