Cremer v Commissioner for Fair Trading

NCAT Occupational|2021-11-08

Parties and Background

The Respondent, the Commissioner for Fair Trading NSW, declined to renew or restore the Applicant, Mr Cremer's, real estate agent's licence which expired on 2 December 2019. Consequently, the Commissioner also declined the renewal of a real estate licence formerly held by Austreal Pty Ltd, a company which has Mr Cremer as its sole director and licensee-in-charge.
The Applicant, Mr Cremer, seeks that the Tribunal exercise the power contained in the Property and Stock Agents Act 2002 (NSW), s 25A to restore his real estate agent licence with the effect that the licence is renewed from 2 December 2019.
This matter has a procedural history longer than might otherwise be expected for such an application and may be summarised as follows: 1. The Applicant applied to the Tribunal on 28 May 2021. That application sought that the Tribunal grant to Austreal a real estate agent's licence for a corporation (corporation licence) after the Commissioner's decision refusing to grant a corporation licence which was communicated on about 12 May 2021. 2. On 6 July 2021, the Tribunal directed the Applicant to submit to the Commissioner an application for a real estate agent's licence for him personally as this was required to be granted for Austreal to qualify for the corporation licence. 3. On 29 July 2021, Mr Cremer applied for a Class 1 Real Estate Agent's Licence which, on 17 August 2021, the Commissioner denied. The basis of this denial was that Mr Cremer did not possess the necessary qualifications for a Class 1 licence issued after 20 March 2020. 4. On 7 September 2021, the Tribunal allowed Mr Cremer to amend his application to the Tribunal further so that the following matters were the subject of review: 1. The Commissioner's refusal to grant a corporation licence to Austreal; and 2. The Commissioner's refusal to: 1. grant Mr Cremer a restoration of his previous personal real estate agent licence which expired in December 2019; or 2. grant Mr Cremer a new Class 1 licence.
No application was made for or by Austreal to be joined as party in these proceedings. However, having regard to the procedural history set out above, the facts and the orders which I have ultimately made, I have determined that Austreal should be joined as an applicant party pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 44(1).

Issues

Ultimately, the determination of this matter comes to one issue - whether Mr Cremer's real estate agent's licence which expired on 2 December 2019 should be restored.
If Mr Cremer's original licence were to be restored: 1. Austreal would be eligible for a corporation licence and 2. The question of whether the Commissioner's refusal to grant him a Class 1 Licence in August 2021 was the correct or preferrable decision would not arise.
The Commissioner initially made submissions about why Mr Cremer would not be eligible for a Class 1 real estate agent's licence. Given the primacy of the issue concerning the restoration of the 2 December 2019 licence, the Commissioner withdrew all submissions pertaining to his decision to refuse to grant the Class 1 real estate agent's licence.

Legislation

The Property and Stock Agents Act regulates the licencing of real estate agents. Prior to 23 March 2020, the Property and Stock Agents Act was known as the Property, Stock and Business Agents Act 2002 (NSW).
Contrary to the Respondent's submissions, there is not an "old Act" nor, by implication a "new Act", the Property and Stock Agents Act was not repealed but amended. The amendments introduced on 23 March 2020 were significant and included, in addition to the change of title, more rigorous qualification requirements for persons wanting to hold a real estate agent's licence. The amended legislation is accompanied by the Property and Stock Agents (Qualifications) Order 2019 (NSW) and set out various pathways and levels of qualifications and experience required by persons seeking a real estate agent's licence, whether a Class 1 or a Class 2 licence.
As that Order came into effect on 23 March 2020 in aide of the Property and Stock Agents Act, ss 14 and 15 and because of the manner in which the present application is determined, further consideration of the provisions contained in the Order is not presently relevant.
A provision which remains unchanged is the requirement that an individual who seeks to act as or carry on a business as a real estate agent must have a licence to do so; Property and Stock Agents Act, s 8. Similarly, a corporate entity must hold a corporation licence to carry on a business as a real estate agent; Property and Stock Agents Act, s 9. The penalties for failure to hold a licence include fines and the inability to recover fees and commissions. Additionally, a corporate entity is not entitled to a corporation licence unless one of its directors holds a real estate agent licence personally; Property and Stock Agents Act, s 14(2)(d).
The Commissioner may grant real estate agent's licences; Property and Stock Agents Act, s 17. The Commissioner must not grant a licence unless the applicant is eligible; Property and Stock Agents Act, ss 14, 19.
Property and Stock Agents Act, s 25A provides for the making of an application to restore a licence which has expired and for which no application for renewal was made before the expiry of the original licence. That section also sets out the matters to be considered in determining whether to restore that licence. This provision was not the subject of any recent amendment and relevantly provides: (1) An application for the restoration of a licence must be made - (a) within 3 months of the expiry of the licence, or (b) within the further period determined by the Secretary on the application of the person seeking the restoration of the licence. (2) Without limiting subsection (1) (b), the Secretary may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied that - (a) in a case where the applicant failed to apply for renewal before the licence expired - the failure to apply for renewal of the licence before it expired was due to inadvertence, or (b) it is just and equitable to restore the licence.
Where a licence is restored, it is taken to have been restored from the day on which the licence expired; Property and Stock Agents Act, s 25A(5).
A person is entitled to apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (NSW) where the Commissioner has refused to grant to that person a licence, including a decision to refuse to grant the restoration of a licence; Property and Stock Agents Act, s 27.
On review, the Tribunal is obliged to decide what the correct and preferrable decision is having regard to the material before it and any applicable law and may exercise all functions that are imposed or conferred on the administrator who made the decision; Administrative Decisions Review Act, s 63.

Facts

Mr Cremer relied on two affidavits, one made by him and the other made by an associate of his, Mr Rosen. Both affidavits were read at the hearing without objection.
The Commissioner relied on his submissions and the bundle of documents lodged pursuant to the Administrative Decisions Review Act, s 58.
The following facts were not in dispute: 1. Mr Cremer has held a personal real estate agent licence and his company, Austreal Pty Ltd has held a corporation licence, for about the past 25 years. The Commissioner's submissions pointedly rely upon the fact that Mr Cremer has successfully renewed each of the respective real estate agent licences on time for about the last 25 years. 2. In that entire period, neither Mr Cremer nor Austreal have been the subject of any complaints and Mr Cremer has maintained his professional development requirements throughout. 3. At the time his licence was to be renewed, Mr Cremer was eligible to hold a real estate agent's licence. 4. In 2014, in addition to being a real estate agent, Mr Cremer was admitted as a legal practitioner of the Supreme Court of New South Wales and has held a practising certificate from that time. He has never had any disciplinary proceedings or suspensions arising from his practice as a solicitor. 5. Mr Cremer's personal real estate agent's licence and the corporation licence for Austreal fall due at different times. Mr Cremer's personal real estate licence falls to be renewed by 2 December in each year. Austreal's licence falls to be renewed by 21 September in each year. 6. Mr Cremer did not renew his personal real estate agent licence by 2 December 2019.
As to why he did not renew his real estate agent's licence by 2 December 2019, Mr Cremer says he did not receive any notice about renewal and had simply forgotten to attend to this task. There was a suggestion in Mr Cremer's evidence and submissions, and I consider this entirely likely, that given the Austreal corporation licence is renewed each August or September, Mr Cremer had prematurely crossed off the task of renewing his personal real estate agent licence.
Though he accepts that the Commissioner is not obliged to send renewal notices, Mr Cremer says he did not receive any prompting from the Commissioner or the Department of Fair Trading, and thus, he remained in an unintentional state of error for several months.
I note the Commissioner's submission that neither he nor his department are obliged to send renewal notices and that it is the responsibility of licence holders to apply for renewal or restoration of a real estate agent licence. At hearing, Mr Cremer conceded that he was responsible for the renewal of his licence. Nonetheless, the Commissioner referred in submissions to sending Mr Cremer both an email and a text message to his mobile phone number as a reminder about renewal of his licence. The Commissioner relied on the email and the text message to argue that Mr Cremer's failure to renew his real estate agent's licence was not due to inadvertence and instead such failure was due, as the Commissioner submitted, to "reasons unknown". Both the email and the text message were sent, according to the Commissioner's records, at 8:05 pm on 28 October 2019.
The email was sent to an email address which Mr Cremer says he uses solely for personal, family and non-business communications. He uses a separate email address for his business communications, and it was to this email address that he received a renewal notice for the corporation licence for Austreal. Mr Cremer's evidence was that he did not know how the Commissioner had this personal email address recorded as being a point of contact and he suspects the email reminder likely went to a "spam" folder and was deleted.
The evidence before me shed no light on how this email address came into the records of the Commissioner nor was any explanation provided as to why the same email address used to send the renewal notice to Austreal was not also used to send out the renewal for Mr Cremer's personal real estate agent licence. I was informed by the Commissioner's representative that the personal details and the corporation's details are held together and are collected from the licensee. The recipient of a notice to renew is requested to advise of any changes and no changes had been advised in this case. I conclude that the email was sent to Mr Cremer's personal email account and that, given its contents, it was immediately allocated to a spam folder in his account and was deleted some time later.
At the same time as the email was sent, Mr Cremer was also sent the following text message: "Hi your licence is due for renewal on 02/12//2019. Renew at https//onegov.nsw.gov.au/t/28Q3ZLYK. Contact us on 02 9619 8799 Fair Trading."
As a renewal reminder or any form of official communication by a government agency, the text message set out above is deficient in terms of its tone, content and timing. The message starts with a casual salutation with no named addressee, it does not specify the kind of licence due for renewal, it contains a link which a reasonable person might consider suspicious, and finally it was sent outside of normal business hours and nearly two months from the due date.
Mr Cremer's evidence is that he likely deleted the text message shortly after it was received. He says in addition to his real estate agent's licence he has several other New South Wales licences, specifically a drivers' licence, a motor-cycle licence and a boat licence. His evidence was that he could not know what this text message related to and that he had a practice, on receipt of text messages and emails which appear to be suspicious to delete them immediately from his device.
In this case, I accept that the text message looked suspicious, and that Mr Cremer likely deleted the message without paying any regard to it shortly after receiving it.
Thus, I am unable to accept the Commissioner's submission, as far as it is relevant, that Mr Cremer was on notice of the forthcoming expiry of his real estate agent's licence, nor do I accept the submission that his failure to renew his licence is not capable of being explained as a consequence of inadvertence.
On about 17 August 2020, Mr Cremer received a renewal notice for the corporate licence granted to his company, Austreal Pty Ltd. This renewal was sent to Mr Cremer's regular business email address. Mr Cremer promptly completed the renewal form and paid the fee.
On about 12 May 2021, some months after submitting the renewal form for the Austreal licence, an officer of the Commissioner advised Mr Cremer that the corporation licence could not be renewed because Mr Cremer's personal real estate agent's licence had expired.
Mr Cremer did not immediately apply to the Commissioner for a restoration of his personal real estate agent licence. Rather, he and the Commissioner engaged in an unproductive series of correspondence over whether Mr Cremer had been reminded to renew his personal real estate agent licence.
I was taken by the Commissioner's representative to a document at Tab 4 of the s 58 documents. The document is undated but the Commissioner, by his index, asserts that it was sent to the Applicant on about 17 August 2020. The document is headed "Notice of Renewal / Restoration of a Corporation Property and Stock Agents Act 2002". This notice shows a due date of 21 September 2020 for the renewal of the corporate licence associated with the Applicant. Attached to or forming part of the Notice is a table containing the contact details and associated information for the Applicant and the corporate licensee. These are expressed to be the details recorded by NSW Fair Trading at the date of the Notice.
I have inferred from the 2020 renewal notice for the corporation licence that the 2019 renewal notice for the same licence was sent in about August 2019 and had been completed by September 2019. The 2020 renewal notice does not indicate that the personal real estate agent licence formerly held by Mr Cremer has expired or that any action needs to be taken.
Mr Cremer's sworn written evidence was that his failure to renew his personal real estate agent licence by 2 December 2019 arose from inadvertence on his part. He says he would never have applied for the real estate agent licence on behalf of Austreal in September 2020 had he thought his personal licence had expired. I accept that evidence.
Further, it was Mr Cremer's evidence that, while he does not recall receiving reminders from the Commissioner, he probably deleted them without paying attention because they were not sent in a manner which would readily alert him to what he needed to do or were sent in a manner which would have suggested the reminders were not genuine communications. I have already considered the question of reminders in the context of the Commissioner's submissions. As far as Mr Cremer's case is concerned, such reminders are largely irrelevant and at hearing he accepted that the Commissioner was not obliged to send him reminders and that renewal of his licence in a timely manner was entirely his responsibility.

Inadvertence

The Commissioner's submission relying on the alerts sent via text message and email to the Mr Cremer has already been addressed and rejected above.
The Commissioner's further submission is that Mr Cremer had held a personal real estate licence for about 24 or 25 years and so he must have been aware that he needed to renew each year, therefore his failure to renew by 2 December 2019 was not a matter of inadvertence. I do not agree with that submission. Inadvertence may arise in precisely those circumstances.
I have concluded that Mr Cremer's failure to renew his real estate agent's licence was a matter of inadvertence, largely arising from the different due dates for each of the licences which he was responsible for renewing. Mr Cremer seems to have struggled, initially, to appreciate that he had not renewed his licence and much of the lengthy procedural history may be explained by this misunderstanding. His failure to renew his real estate agent's licence was entirely contrary to his interests and that of his company. Mr Cremer needed his personal real estate agent licence for his company to hold its corporation licence and he appears to have an unblemished history of applying for renewal of his real estate agent licences (both corporate and personal).
This appears to be the very kind of factual situation where a discretion to restore a licence on the basis that the failure to renew or restore within the prescribed period has occurred from an act of inadvertence on the part of the applicant, should apply in favour of the licensee.

Just and Equitable

If I were not satisfied that inadvertence was the cause of the failure to apply for renewal of Mr Cremer's personal real estate agent licence, then I would consider it just and equitable to extend the time in which his licence may be restored.
The phrase "just and equitable" appears in the Property and Stock Agents Act, s 25A(2)(b). That phrase has been the subject of substantial judicial authority and is contained in statutes seeking to regulate fields as disparate as family law, corporations law, the law of succession and building cases before this Tribunal; Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52; Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143 at [70]; King-Osborn v Commissioner of Fair Trading [2022] NSWCATOD 1 at [78] - [79].
Consideration of what is just and equitable is not simply an application of unguided discretion or subjective determination without regard to statutory context and principles. In Stanford v Stanford at [36] the plurality stated: The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds. …
In a strata corporation case in Victoria, The Concept Developer Pty Ltd v Conroy [2015] VSC 464, John Dixon J at [50] after considering the authorities as to the meaning of "just and equitable" observed: I draw from the authorities that whether a lot liability is just and equitable is not to be determined in accordance with fixed rules. It is a question of fact to be resolved in all of the circumstances in a principled way. The relevant circumstances are revealed by the statutory purposes and text.
Hence, while consideration of whether it would be just and equitable in a particular case to extend the time in which a licence may be restored relies heavily on questions of particular facts, regard must also be had to principles and the statutory purpose and text.
In that regard, the statutory purpose is the regulation of real estate agent practices in New South Wales to ensure a high level of professionalism and qualification and to ensure that real estate agents operate in conformity with the terms of eligibility requirements of the licensing scheme. Section 25A provides for discretion to be exercised in extending the time in which an application for the restoration of an expired licence may be made. The text of s 25A is facilitative; the considerations of inadvertence and "just and equitable" are stated as being non-exhaustive considerations in extending the time in which an application of restoration made be made.
In this case, there is no question that Mr Cremer has been a licenced and fully compliant real estate agent for about the past 25 years, including as licensee-in-charge for Austreal. He has otherwise attended to the renewal of his real estate agent's licence with diligence. His failure to renew his real estate agent's licence by 2 December 2019 is explained in his evidence as being an oversight and it is clear such an oversight was uncharacteristic given the manner in which he has previously attended to his licence renewal obligations.
Therefore, while I am satisfied that Mr Cremer's failure to renew his licence was due to inadvertence, I am also satisfied that the application for restoration should be granted on just and equitable grounds.

Decision

Where a licence is restored, it is taken to have been restored from the day on which the licence expired; Property and Stock Agents Act, s 25A(5).
On 2 December 2019, Mr Cremer possessed all necessary qualifications in order to be granted a renewal of his real estate agent's licence.
I have concluded that Mr Cremer's licence should be restored with effect from the day of expiry in December 2019, and consequently, the corporation licence for Austreal should also be renewed with effect from 21 September 2020.
The Administrative Decisions Review Act, s 63 provides that, in determining an application the Tribunal may decide to, among other things, set aside the administratively reviewable decision and make a decision in substitution for the decision set aside. I will make orders accordingly.

Orders 1. The Commissioner's decision dated 17 August 2021 refusing to grant Mr Cremer a Class 1 real estate agent's licence pursuant to the Property and Stock Agents Act 2002 (NSW) is set aside. 2. In substitution for the Commissioner's decision of 17 August 2021, Mr Cremer's application for restoration of his real estate agent's licence is granted with effect from 2 December 2019. 3. Austreal Pty Ltd is joined in these proceedings as the second applicant pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 44(1). 4. The Commissioner's decision dated 12 May 2021 refusing to renew the corporate real estate agent's licence of Austreal Pty Ltd pursuant to the Property and Stock Agents Act 2002 (NSW) is set aside. 5. In substitution for the Commissioner's decision of 12 May 2021, the application by Austreal Pty Ltd for renewal of its corporate real estate agent's licence is granted with effect from 21 September 2020.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2022

Property, Stock and Business Agents Act 2002(NSW)

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Judgment (9 paragraphs)

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