1. Identify and explain the outcome including any penalties imposed on the agency and the individual agents

2. (If this case occured in Victoria, Australia) what are, the standards of conduct and sources of specialist advice that the Agent could have referred to, to help rectify the unethical practice.

REASONS FOR DECISION

1 This appeal has its origins in disciplinary action taken on 16 December 2004 by the Commissioner of Fair Trading as administrator of theProperty, Stock and Business Agents Act 2002(NSW) (the PSB Act). The action was taken under s 195 of the PSB Act against three persons holding real estate agent licences. The three persons are the principal of the firm known as L J Hooker, North Ryde, Mr Peter Hinton, his daughter, Ms Ereca Hinton and the corporate licensee, Mahevi Pty Ltd (the appellants).

2 The conduct giving rise to the disciplinary action was their failure to disclose to prospective purchasers that a residential property for which their firm was the selling agent in 2004 had been the site of a notorious multiple murder. The Commissioner made adverse findings against each of the appellants and made disciplinary orders.

3 The appellants applied to the Tribunal for review. The Tribunal held a hearing over six days. It agreed with the findings made by the Commissioner, and with one variation in the case of Mahevi Pty Ltd, the orders made by the Commissioner: seeHinton & Ors v Commissioner for Fair Trading[2006] NSWADT 257 (findings, 1 September 2006;Hinton & Ors v Commissioner for Fair Trading (No 2)[2006] NSWADT 299 (orders, 19 October 2006).

Disciplinary Findings

4 The Commissioner's internal review decision of 20 January 2005 affirmed the findings made in the primary decision of 16 December 2004. The Tribunal, in its decision delivered 1 September 2006, made the same findings, that is:

(1) With respect to Mahevi Pty Ltd, that it: i. misrepresented the sale of 6 Collins St North Ryde by the concealment of a material fact namely the non-disclosure of murders which occurred on the property - s.52(1) of the PSB Act;

ii. engaging in misleading or deceptive conduct namely the non- disclosure of murders which occurred on the property - s.42 of theFair Trading Act1987 (NSW) (the Fair Trading Act); and

iii. failed to act honestly, fairly and professionally - r.3(1) Rules of Conduct (s.37 of the PSB Act and cl 11 of theProperty, Stock and Business Agents Regulation2003).

https://www.caselaw.nsw.gov.au/decision/549f61d93004262463a20490 4/19

01/06/2022, 12:02 Hinton & Ors v Commissioner for Fair Trading, Office of Fair Trading (GD) - NSW Caselaw

(2) With respect to Mr Hinton, that he as a Director and Licensee in charge of Mahevi Pty Ltd: i. misrepresented the sale of 6 Collins St North Ryde by concealment of a material fact namely the non-disclosure of murders which occurred on the property - s.52(1) of the PSB Act; ii. misleading or deceptive conduct namely the non-disclosure of murders which occurred on the property - s.42 of theFair Trading Act1987; iii. failed to act honestly, fairly and professionally - r.3(1) Rules of Conduct; iv. misled or deceived a party to a transaction - r.3(2) Rules of Conduct; and v. failed to supervise the business of the corporation - s.32 of the PSB Act. (3) With respect to Ms Hinton, that she: i. misrepresented the sale of 6 Collins St North Ryde by concealment of a material fact namely the non-disclosure of murders which occurred on the property - s.52(1) of the Act; ii. misleading or deceptive conduct namely the non-disclosure of murders which occurred on the property - s.42 of theFair Trading Act1987; iii. failed to act honestly, fairly and professionally - r.3(1) Rules of Conduct; and iv. misled or deceived a party to a transaction - r.3(2) Rules of Conduct. Disciplinary Orders 5 Mahevi Pty Ltd was required by the Commissioner to pay a monetary penalty of $13,200 and prepare a compliance manual. Mr Hinton and Ms Hinton were penalised $5,500 and $2,200 respectively. The Tribunal affirmed the orders in respect of Mr Hinton and Ms Hinton. In the case of Mahevi Pty Ltd it affirmed the penalty but removed the requirement that it prepare a compliance manual.