Victorian Civil and Administrative Tribunal|2014-02-07|Before: Benvi International P, Ms J

Benvi International Pty Ltd v Business Licensing Authority (Review and Regulation) [2014] VCAT 106 (7 February 2014)

Estate Agents Act 1980 s 31CA(3)(b)(i) - Failure to repay Victoria Property Fund - Whether permission can be granted by Authority to continue to hold estate agents licence.

Benvi International Pty Ltd v Business Licensing Authority (Review and Regulation) [2014] VCAT 106

The decision of the Business Licensing Authority is affirmed.

On 15 February 2013, the Acting Director of Consumer Affairs Victoria, in his capacity as an authorised delegate of the Secretary, allowed a claim on the Victoria Property Fund against the applicant in the sum of $19,964.98 in favour of Edris Ahmas and Homa Badri.
The consequences for the applicant are significant because section 22(2A)(c) of the Estate Agents Act 1980 ("the Act") has the effect that a corporation's licence as an estate agent is automatically cancelled 30 days after the corporation has a claim allowed against the Fund.
Nevertheless, where a claim has been allowed, section 31CA(1)(a) of the Act enables a corporation to apply to the respondent for permission to be granted or to continue to hold an estate agents licence.
Accordingly, on 15 March 2013, the applicant lodged a permission application with the respondent. On 17 June 2013, the respondent determined to refuse the application for permission because it was not satisfied the applicant met the condition in section 31CA(3)(b)(i) of the Act, namely that the applicant had refunded all monies paid out of the Fund.
In its decision dated 17 June 2013 the respondent said:

"the Authority refuses permission for Benvi International Pty Ltd to continue to hold an estate agent's licence on the grounds that it is not satisfied that the person has refunded all amounts paid out from the Fund in respect of the claim, pursuant to section 31CA(3)(b)(i) of the Estate Agents Act 1980"

It is undisputed that the applicant has not refunded all amounts paid out of the Fund.
The applicant now seeks review by the Tribunal of the Authority's decision.

There is no real dispute as to the relevant facts.
The applicant briefly employed Mr Mansoor Atmar as an agent's representative in November 2011. Mr Atmar's employment was terminated on 20 December 2011. During the course of his brief period of employment Mr Atmar dishonestly retained a part-deposit paid by Edris Ahmad and Homa Badri who thought that they were purchasing a property located at 2/13 Carlisle Road, Hallam. The property had, however, in fact been sold to different purchasers by a different estate agency.
In January 2012, Edris Ahmad and Homa Badri attended upon the applicant to discuss their purchase. The applicant's director immediately realised there was a problem and notified the police.
On 16 November 2012, Mr Atmar was found guilty at the Dandenong Magistrates' Court of various dishonesty offences including offences pertaining to the Carlisle Road premises.

In making its application for permission, the applicant fulfilled all of the technical statutory criteria set out in section 31CA(2) of the Act and assisted the respondent as required under section 31CA4(b) such that the only question to be determined in this proceeding is the proper construction of section 31CA(3) of the Act. It relevantly provides as follows:

The Authority may give its permission if it is satisfied -

(a) that the giving of the permission is not contrary to the public interest; and

(b) in the case of an application made in the circumstances described in subsection (1)(a) -

(i) that the person has refunded all amounts paid out of the Fund or the corresponding fund in respect of the claim; and

(ii) that there were exceptional circumstances which gave rise to the claim against the person; and

(iii) that having regard to the conduct of the person before and after the claim, there is no reasonable expectation that the person will not comply with this Act and the regulations in future; and

(c) in the case of an application made in the circumstances described in subsection (1)(a) involving a director or in subsection (1)(c), that there is a substantive reason why the person should remain a director of the corporation.

As stated above, the applicant has not refunded all (or any) amounts paid out of the Fund such that the requirements of section 31CA(3)(b)(i) have not been met. The applicant provides a number of (understandable) reasons for this. The applicant states that it is unable, because of financial hardship, to pay the Fund. The applicant considers that it is unfair to expect it to do so. It considers itself an additional victim of Mr Atmar's criminal conduct and emphasises that it did everything to assist the authorities to bring Mr Atmar to justice. The applicant is also concerned that in circumstances wherein Mr Atmar was ordered to pay restitution by the Dandenong Magistrates' Court, that the Fund should not have been enlivened at all.
In the matter of Rimanic v Business Licensing Authority (Occupational and Business Regulation) [2010] VCAT 1997 (2 December 2010), the then-President of the Tribunal, His Honour Justice Ross considered section 29A(3) of the Motor Car Traders Act 1986. It has a similar construction and contains similar provisions to those contained in section 31CA(3) of the Act and reads as follows:

(3) Subject to subsection (4), the Authority may grant the application if it is satisfied -

(i) the person has refunded all amounts paid out of the Fund in respect of the claim; or

(ii) the person has agreed to refund all amounts paid out of the Fund in respect of the claim; and

(b) that having regard to the conduct of the person before and after the claim, there is no reasonable expectation that the person will not comply with this Act and the regulations in future; and

(4) The Authority may grant an application by a partnership or body corporate whose licence would otherwise be suspended under section 29(1B) if the Authority is satisfied that the granting of the application is not contrary to the public interest. [emphasis added]

Justice Ross found the personal circumstances of the applicant were not a matter that he was able to take into account. He said at paragraphs 16, 17 and 18:
1. Section 29A(3) provides that the Authority may grant an application for permission to be employed by a motor car trader in a customer service capacity if the Authority is satisfied as to the matters specified in paragraphs 29A(3)(a), (b) and (c). The Authority must be satisfied as to each of these matters, as is clear by the use of the conjunctive 'and' at the end of paragraphs 29A(3)(a) and (b).
2. The matters specified in paragraphs 29A(3)(a) (b) and (c) are jurisdictional requirements. This follows from the introductory words 'the Authority may grant the application if it is satisfied' as to the matters set out in paragraphs 29A(a)(b) and (c). Before the Authority may grant the permission sought each of the matters must be satisfied. The requirement in s 29A(3)(a) is a jurisdictional fact and is a precondition to the valid exercise of the power to grant the permission
3. Applying that construction to the facts here the Applicant must fail as he has not satisfied the Authority as to the existence of the fact specified in s 29A(3)(a).
I agree with the submissions of the respondent that I should adopt the same construction of section 31CA(3)(b) of the Act. It does not appear to me to be open to adopt any other construction.
Section 31CA(3) provides that the Authority "may give its permission if it is satisfied" as to the matters specified in paragraphs 31CA(3)(a), (b) and (c). Adopting the same construction as in Rimanic, the Authority must be satisfied as to each of these matters, as is clear by the use of the conjunctive 'and' at the end of paragraphs 31CA (3)(a), (b) and (c). The matters specified in paragraphs 31CA (3)(a) (b) and (c) are jurisdictional requirements. This follows from the introductory words 'give its permission if it is satisfied' as to the matters set out in paragraphs 31CA (3)(a), (b) and (c). Before the Authority may grant the permission sought each of the matters must be satisfied. The requirement in 31CA (3)(b) is a jurisdictional fact and is a precondition to the valid exercise of the power to grant the permission.
I also have no power to put aside the need to comply with section 31CA(3)(b). The language of the section is clear. Once again in the words of Justice Ross:
1. As a creature of statute, the Tribunal has no inherent jurisdiction. It only has those powers expressly conferred on it by the VCAT Act and has such jurisdiction as is conferred on it by Victorian legislation, referred to as 'enabling enactments' in the VCAT Act.
And further:
1. While I readily accept the proposition that the Tribunal's powers should be liberally construed, the interpretation adopted must be restrained within the confines of the actual language employed and what is fairly open on the words used. The words of the relevant legislation must be examined first and if only one interpretation is fairly open then that must be the meaning attributed to the words. In the circumstances of this case the language of s 29A(3)(a) is clear. It sets out a jurisdictional fact which must be established before the power to grant the permission may be exercised. That jurisdictional fact has not been established in this case and so there is no power to grant the application.
The same fate attends upon this application.
There is only one interpretation fairly open on the words of section 31CA(3)(1)(b) of the Act and that is that sets out a jurisdictional fact which must be established before the power to grant the permission may be exercised. As in Rimanic's case, that jurisdictional fact has not been established in this case and so there is no power to grant the application.
Accordingly, I cannot take into account the submissions advanced on behalf of the applicant as to either its difficult financial circumstances or the impact upon it of a decision to refuse the permission sought.
Nor can I consider whether the claim on the Fund should have been allowed. Whilst section 81(5A) of the Act confers a conditional jurisdiction on the Tribunal to review a decision of the Secretary to disallow a claim, there is no provision in the Act which confers jurisdiction on the Tribunal to review a decision to allow a claim from the Fund. I note that in this respect the provisions are in contrast to section 79 of the Motor Car Traders Act 1986, which enables any person whose interests are affected by a decision to make a payment from the Fund to apply to the Tribunal for review.
Whilst the applicant expressed some disappointment about this, I cannot give myself jurisdiction I do not have. On this review I am obliged to apply the terms of section 31CA(3) of the Act and the applicant has failed to satisfy the jurisdictional requirements set out in the section.
The application for review will be dismissed and the Authority's decision affirmed.

Car Traders Act 1986

Benvi International Pty Ltd v Business Licensing Authority

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Benvi International Pty Ltd v Business Licensing Authority (Review and Regulation) [2014] VCAT 106 (7 February 2014)

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