On 20 November 2021, the Applicant, Syed Ali Abbas applied for a certificate of registration for Assistant (Real Estate) Agent (the application) under the Property and Stock Agents Act 2002 (the Act). On the 27 January 2022 a determination was made to refuse the application. The Applicant did not seek internal review of the decision but instead sought review of that decision by this Tribunal. The Respondent contended that the Application for Review was brought out of time and that it should be dismissed.
Both parties provided submissions. The Respondent filed no documents in support of its submissions; the Applicant however, appeared to take no issue with the factual matters set out by the Respondent, other than to make some comments, as noted. He made other submissions which are referred to below.
The time for filing submissions closed on 4 October 2022 and the matter was scheduled to be heard on the papers on a date after 4 October 2022. On 5 October 2022 the Applicant sought an extension of time for the filing of further submissions. On 12 October 2022 the Tribunal granted an extension of time to 11 November 2022, but none were received.
The parties, having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) Civil and Administrative Tribunal Act 2013 (CAT Act), and the matter was considered on the papers.
[2]
Relevant legislation: time within which to make the administrative review application
Section 27 of the Act provides a right of review by the Tribunal of a decision of this kind; however, the Act does not specify the time period within which an application for administrative review is to be made. Subrule 24(3)(b) of the Civil and Administrative Tribunal Rules (the CAT Rules), specifies "by the end of the default application period", which is 28 days after the Applicant was notified of the decision: subrule 24(4)(b)(ii) of the CAT Rules.
The Tribunal has the power under s 41 of the CAT Act to grant an extension of time in which to make an application. In exercising its discretion, the Tribunal must seek to give effect to the guiding principles to facilitate the just, quick and cheap resolution of the real issues in the proceeding: s 36 of the CAT Act.
Guidance in relation to the factors the Tribunal is to take into account when considering whether to exercise its discretion to grant an extension for an appeal was provided by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 (Jackson). In CFZ v Department of Education [2015] NSWCATAD 231 the Tribunal concluded that those principles, as discussed in Jackson, were equally applicable to an administrative review application. These were conveniently summarised by Dr Lucy SM in CFA v Department of Family and Community Services [2016] NSWCATAD 32 at [29]:
29. Whilst it is important to remember that the Tribunal has a broad discretion concerning the grant of an extension of time, the cases referred to above establish that the following factors are relevant:
(1) The length of the delay;
(2) The reason for the delay;
(3) The applicant's prospects of success;
(4) Any prejudice suffered by the respondent;
(5) Public interest considerations;
(6) Timeliness or delay in antecedent administrative processes;
(7) Whether strict compliance with the rules will work an injustice upon the applicant."
[3]
Issue for the Tribunal
Whether the Tribunal should exercise its discretion to permit the application for review to be brought out of time.
[4]
CONSIDERATION
I considered the principles, albeit in an order more convenient for the purposes of the present matter.
[5]
What was the length of the delay?
The Applicant stated in his Application for Review that he was notified of the decision on 27 January 2022, and this is consistent with a reference in the papers to it having been emailed to him on that date.
According to subrule 24(4)(b)(ii) of the CAT Rules, the default application period ran until 24 February 2022 and the Application for Review should have been lodged by that date. Instead, it was lodged on 3 August 2022, some 5 months and 7 days late.
I consider the delay to be reasonably significant.
[6]
What was the reason for the delay?
The Determination of 27 January 2022 provided clear information as to the reasons for the refusal, and that lodgement of an application for internal review must be made within 28 days of the date of the determination.
In his Application for Review the Applicant wrote, erroneously, that there had been an internal review. He wrote that the reason for the Application for Review being lodged late was that he was in Canada in February 2022 and "Fair Trading gave [him] 30 (sic) day". He wrote that he had a family emergency so was unable to lodge the external review [application]. It was unclear if this "emergency" was associated with his trip to Canada, or was a different claimed basis for failure to lodge the review application in time. In his submissions, he did not address reasons for the delay.
The Applicant provided no supporting evidence of his trip to Canada "in February", nor details of the "family emergency" to which he referred in the Application for Review. Even if the Applicant was in Canada from 1 February 2022, he still had several days to apply for, or instruct solicitors to apply for, a review on his behalf. He understood that there was a "30 day" time period to lodge a review, yet he did nothing. There was no evidence that during his sojourn in Canada he did not have the means to contact the Tribunal, the Respondent or solicitors. Further, even if he remained in Canada for the whole of February, the delay in lodging the Application for Review until August remains unexplained. Similarly, there was no evidence as to the "family emergency" that may have explained why he was not able to lodge an Application for Review within time.
[7]
Would strict compliance with the rules be unjust to the Applicant?
The Respondent submitted that strict compliance with the statutory timeframe does not work an injustice upon the Applicant. I do not think it is possible to answer this question without an evaluation of the merits of the substantive application, because, clearly, if the application had merit, then requiring strict adherence to the statutory timeframe may be unjust to the Applicant.
[8]
Is there prejudice to the Respondent if the extension of time is granted?
I accept that it is desirable that the Respondent has certainty in relation to its decision-making. The Respondent submitted that the Applicant has no prospect of success, and this is discussed below. In those circumstances, it was submitted, the Respondent would be prejudiced by incurring costs if matter proceeded to hearing. The Respondent is not otherwise disadvantaged by having the matter reviewed.
As to public interest in the Applicant in extending the time for filing the Application for Review, there is no evidence to support such a finding. Similarly, there was no evidence, one way or the other, in relation to the Applicant's previous timeliness or delay in dealing with the Respondent.
[9]
What are the Applicant's prospects of success?
The Respondent submitted the Applicant has no prospects of success in his substantive administrative review application. In the circumstances of the matter, this is the most significant consideration and the one to which I have given most weight.
The Respondent said that in March 2011 (sic), solicitors for the owner of a number of units in Parramatta lodged a claim on the Property Services Compensation Fund (the Fund) in respect of missing rental income and the non-lodgement of rental bonds for two units that had been managed by Gafa Realty Pty Ltd (the company). The Applicant was the sole director of the company.
A certificate under the Act, which includes a certificate of registration for Assistant Agent cannot be issued to a "disqualified person": s 14(3)(d) of the Act. "Disqualified person" includes a person who has failed to pay an amount due as a debt to the Crown by way of recovery of an amount paid out of the Fund and the failure continues: s 16(1)(m) of the Act. Section 177 creates a debt to the Crown against a licensee when an amount is paid out of the Fund in relation to that person.
On 26 November 2021 a letter was sent to the Applicant in his capacity as sole director of the company that advised that the Fund had paid out a claim exceeding $11,000 in respect of pecuniary losses suffered because of a failure to account in accordance with s 173 of the Act. The Respondent said that the letter further advised that should the deficiency remain in the Fund, the Applicant's ability to apply/renew a certificate/licence would be affected.
The Applicant wrote in his Application for Review that he was "shocked and horrified" to know that there were claims against the company as he had never received any form of communication from the Respondent about that. He said from 2008 to 2012 he was living in Victoria and, from 2012 to 2017, was living in Dubai. He said there was one complaint in 2009 about which he had come from Melbourne to be interviewed about it. In his submission he added that, in 2009, another person, with his permission, was using his licence and company. He said he had no knowledge of any claim against the company, by which I understood him to mean, subsequent to the 2009 complaint.
On 9 December 2021 the Applicant sent an email to the Fund requesting it "to reduce the amount to $6000 I will pay lump sum and my application can be processed?", by which it appears the Applicant was attempting to negotiate out of the debt and the refusal to issue of a certificate. On 9 December 2021 a Compensation Officer at the Fund emailed in response that "as previously advised an alert on the system will not be removed and you won't be able to apply/renew your certificate/licence until the debt is cleared". The email then specified where the payments were to be made. I am satisfied that, since at least 9 December 2021 it was clear to the Applicant that no certificate would be issued unless he paid the debt in its entirety. He said that had he known he could not be registered again without paying the $11,000, he would not have studied for the certificate.
In refusing the application the Respondent considered that having regard to the claim against the company and the Applicant's debt to the Fund the Applicant was a disqualified person under s 14(3)(d) of the Act. That remains the case; and a certificate cannot be granted to a "disqualified person". The Applicant's application therefore has no prospect of success. There is no discretion to allow the Application for Review.
[10]
Conclusion
Having regard to the length of the delay and the Applicant's failure to provide an adequate explanation for the delay, and more particularly, the Applicant's prospects in the substantive matter, I do not think this an appropriate case in which to grant an extension of time in which to bring an application for review. In any event, even if the extension of time were granted, the outcome for the Applicant cannot be favourable, because, as I have discussed, I do not have any discretion to allow his Application for Review. Consequently, there is no utility in allowing the extension of time.
[11]
DECISION
The Application for Review is dismissed.
[12]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 22 November 2022