King-Orsborn v Commissioner for Fair Trading

King-Orsborn v Commissioner for Fair Trading - [2022] NSWCATOD 1 - NSWCATOD 2021 case summary — Zoe

[5]

The Respondent's case

The Respondent's submissions included a chronology to the following effect: 1. … a. Between 19 January 2012 to 21 January 2018 (inclusive), the Applicant was sent documents from the Respondent that the Applicant's REAL 1611761 was required to be renewed or restored. 2. On 22 September 2010, [AREA] was granted Corporation Real Estate Licence number 1661133 (Corporate REAL 1661133). [AREA] held Corporate REAL 1661133 from 22 September 2010 to 21 September 2019 (inclusive) when the licence expired. a. While the Applicant was the director of [AREA], the Corporation holds Corporate REAL 1661133. 3. … [the Individual Licence] was set to expire unless renewed by the Applicant on or before 19 January 2019 or restored by the Applicant on or before 19 April 2019. The letter, sent to the Applicant on 15 December 2018 via e-mail, informed the Applicant of this fact … The warning printed at the bottom of the application … stated: "If your licence expires you will be unlicensed. The Property, Stock and Business Agents Act 2002 carries substantial penalties for persons convicted of acting as or carrying on the business of an agent whilst not being the holder of a licence If your licence expires and it is not restored by lodging this application within three months of the expiry date, any future licence granted to you will be issued with a new licence number. " a. No application and no fee paid in relation to the renewal of [the Individual Licence] was lodged by 19 January 2019. b. No application and no fee paid in relation to the restoration of [the Individual Licence] was lodged by 19 April 2019. c. As a result, [the Individual Licence] expired on 19 January 2019. d. On 30 November 2020, the Applicant sent an e-mail to NSW Fair Trading indicating "My details for your records I provided to you in 2010 and was allocated license number 1611761 issued 20-01-2010. Had expired 20-01-2019 due to family issues that caused duress's for me. New license issued 19-12-2019 and current' … 4. On 16 December 2019, the Applicant lodged an online application for a Real Estate Licence. a. In support of the new application, the applicant provided a copy of CPP40307 Certificate IV in Property Services (Real Estate) and transcript in her name demonstrating completion of units of competency required for this qualification, issued by REINSW on 2 December 2009. 5. On 19 December 2019, the Applicant was granted Real Estate Agent's Licence number 20266948 (REAL 20266948). The Applicant held REAL 20266948 from 19 December 2019 to 22 March 2020 (inclusive). 6. On 23 March 2020, reforms to the regulation of the real estate and property agency industry commenced, including renaming Property, Stock and Business Agents Act 2002 (NSW) (the old Act) to the [PSA Act]. The changes to the PSA Act were supported by the commencement of [the Order] … on 23 March 2020. 7. On the commencement of the PSA Act, REAL 20266948 automatically transitioned to a Class 2 real estate agent's licence with a condition that the holder only exercise real estate sales or leasing functions or on-site residential property manager functions. 8. On 11 December 2020, the Applicant applied for a Class 1 Real Estate Agent's Licence [class 1 licence]. 9. On 10 February 2021, a letter was sent to the Applicant advising that her application had been refused as it was determined she had not provided the qualification required for a Class I Real Estate Agent's Licence in accordance with s 14(1)(c) of the PSA Act ... 10. The application was refused in accordance with s 19 of the PSA Act. ...
The Respondent's submissions as to relevant legislation included: 14. Licensing of real estate and property services agents was previously governed by … (the old Act). 15. The PSA Act provides stricter licensing, regulation and discipline of individuals, and corporate or other entities engaged in business in the real estate industry. The reforms aimed to enhance educational and professional standards across the industry and streamline the licensing framework. At its core, the amendments intended to regulate the industry and to provide a measure of protection to consumers in their dealings with the industry. 16. The PSA Act streamlined the licensing system which: a. offers licences and certificates of registration in four categories [including] … Real estate agent … 17. On 23 March 2020, the PSA Act commenced, which was supported by … [the Order] … 18. The Order, relevantly, provides the qualification and experience requirements for three new licence classifications: a. certificate of registration (assistant agent); b. class 2 licence (licensed agent); and c. class 1 licence (licensee in charge). A Real Estate Agent's licence under the old Act transitioned to a Class 2 licensed agent under the PSA Act.

[6]

The Applicant's case

The Applicant submitted in SSA: 1. On the 22nd December 2018, the Applicant inadvertently renewed the wrong License. That is, the Applicant renewed her Corporation License rather than her Individual Real Estate License which was the licence the applicant had intended to renew. 2. On the 17th January, 2019, the Applicant completed the CPD 12 points/4 hours course for licence number 1611761 the Individual Licence (please see new annexure 1 certificate of completion) in order to comply with regulations. The individual licence was still current (by 2 days at that time even though The Applicant believed that she had renewed it for another 12 months) and this is why the incorrect or inadvertent renewal of the Corporation Licence instead of the Individual Real Estate Licence one month earlier did not come to light. 3. On the Friday 13th September 2019, thinking that the Applicant's Individual Real Estate Licence would be up for renewal soon, the Applicant called the Australian College Of Professionals (ACOP) to book to complete the mandatory CPD 12 Points course again in preparation for the renewal of the Applicant's Individual Real Estate due in January 2020. At this time the applicant was informed that the Individual Licence was not current. This is the date on which the Applicant became aware that she possibly inadvertently renewed the incorrect license) 4. On the following business day, Monday 16th September 2019 the applicant called the Respondent about the matter and was requested to refer to the matter to the Respondent in writing by email. 5. The Applicant complied with the request to contact the respondent via email on the 16th September 2019…
I observe that a 16 September 2019 email from the Applicant to the Respondent included: "I express facts of truth the following: Friday last week I called a training school ACOP Sydney, to enrol in the upcoming CPD Course for my licence (1611761) as it's fast approaching the renewal date. During this conversation, it's was said that my individual license is not valid: 1. I recall calling the Fair Trading asking question about the new corporation rules and had decided I wasn't going to renew given that I have not used and or traded the corporation for more that 7 years it was decided (1661133) 3. On 22nd December 2018 1 checked my emails and renewal my individual licence I had thought at the time as i's due and payable each year on or before January 4. I received a tax receipt number I-6903891175 and notice an email under this email being the said renewal license and was sure it was a payment successful for license 1611761 It's now come to knowledge that my individual license (1611761) had not been renewed and I had by error renewed my corporation license. (1661133). i am asking if possible to consider reinstating my individual licence (1611761 ) for the payment made by error to license (1661133) and to cancel my corporation license as it' was my initial intention at the lime payment receipt number 1-6903891175 ) was made. If you would allow the payment made against my corporation license (11661133) to be used for my individual licence (1611761) please, as I need it urgently for my employment and or all future employment within the real estate sector. I attached: screen copy of proof of payment made on 22-12-2018 You can call me also on […] or email reply as soon as possible confirming as this is now urgent for me to ensure that I can stay in employment within real estate.
The Applicant's submissions continued: 5. … The Respondent replied via email on 27th September 2019 with the following: a. "there is no provision under the property, stock and business agents' act 2002 to restore a licence that has expired more than 3 months from the expiry date of the licence." 6. The respondent's response paid no attention to the provision stated in the Property and Stock Act 2002 - Section 25A, paragraph 2 a and b, (copied below) even though they knew that the Applicant had made an error …
I observe that the Applicant did not have regard to the PSA Act not taking effect until 23 March 2020, several months after she successfully sought renewal of the corporation licence and after the date of the Respondent's reply in September 2019. … 9. The Applicant further claims that the original decision dated 1st March 2021 by Joanne Cocks of the Respondent is unjust, as the whole of it' "the content" does not consider the inadvertent error as could be with regard to section 25A(2) a and b and only deals with the issues in the light of the reform since the 23rd March, 2020 when in fact the applicant had always complied prior to the reform and made an inadvertent error "prior to the new reform" and informed the Respondent prior to the reform. 10. The applicant claims the two licence numbers were easily confused at the time with one another because the first few digits of each are very similar (1611 and 16611) and simply made inadvertent error renewing the incorrect licence at the time due to stress affected directly by the immediate family. 11. The inadvertent error occurred well before the reform of the 23rd March 2020 and should be dealt with as such unders section 25A(2) (a) or (b). 12. The Applicant claims the Respondent has acknowledged the Applicant is entitled to only a class 2 licence and fails to acknowledge years of experience well over 2 years and in fact 10 years' experience in the industry as a full licence holder and an auctioneer.
The Applicant relied on many submissions. Some of those submissions, such as those referring to the alleged application of s 25A of the PSA Act (before that Act came into effect), that Fair Trading had not acted fairly or reasonably given that she "has worked and or held a Full Real Estate Licence & Auctioneer Licence for over 10 years" (contrary to her concession in an email of 30 November 2020 to the Respondent that she "wasn't working during 2018-2019"), that the Respondent failed to "to acknowledge years of experience well over 2 years and in fact 10 years' experience in the industry as a full licence holder and an auctionee" (without providing any evidence that she had actually carried on or managed a business in the industry or ever conducted an auction and that her alleged experience did not necessarily comply with relevant statutory requirements) that her former individual licence number was "known to associate business services, insurance policies and others" (without providing supporting evidence or authority as to the relevance of her submission), that she was entitled to reinstatement of a class 1 licence (which could not be reinstated as there was no evidence that she had ever previously held such a licence), that she had completed a particular course of study (which had in fact been superseded by a later mandatory course without evidence that she had completed such course), that at the date in December 2018 that she applied "inadvertently" for a real estate corporation licence she was adversely affected medically because of her mother's medical condition (without providing evidence in support after having being granted additional time to obtain such evidence), that the experience she (inaccurately) claimed to have (and which did not satisfy the statutory experience requirements for a class 1 licence) were either factually wrong, not supported by probative evidence or not relevant to issues before the Tribunal.
I also observe that repetition of submissions which are legally irrelevant or not supported by probative evidence does not increase their relevance to the issues before the Tribunal no matter how much a party may erroneously regard them as important. Accordingly, I have not dealt, in these Reasons, with all of the Applicant's written submissions.
SSA continued: 13. In response to the Respondent's Submissions dated 7th October 2021: a. Point 12. The applicant objects to all submissions in paragraph 37 to 72 with the determination date 1st March 2021.
In respect of paragraph [13.a], I have considered the 36 submissions challenged by the above blanket objection. I note that the Applicant did not support her objections with probative evidence or legislative or judicial authority. The RSS submissions included clear and accurate references to sections of the PSA Act, the contents of clauses 9 and 10 of the Orders including Pathways from those clauses, definitions included in the Orders, accurate references to two previous decisions of this Tribunal, multiple failures by the Applicant to produce evidence in support of her submissions, and a reference to a written admission by the Applicant that she was not working during 2018-2019. I find that the Applicant's objections to the submissions as a whole are baseless and I reject the objections. c. Point 13a. Details of Mother's health history and death (2017 to 2021) has been provided.
As to [13.a] I observe that the Applicant was present by phone at the Tribunal hearing when the orders were made orally on 25 August 2021. The Applicant had a written copy of the orders, and the Respondent brought to the Applicant's attention that a focus of the medical evidence which the Applicant had agreed to provide was evidence as to the effect of her mother's health on the Applicant when the Applicant renewed the corporation licence instead of renewing her Individual Licence. The Applicant denied that any such evidence had been requested of her in support of her allegations. The Applicant provided no evidence as to her health nor her mother's health at the relevant date, nor any evidence that her mother was then in hospital.
The Applicant made a series of submissions in SSA [13.i]. These submissions did not assist the Applicant as various of them were misleading, and not supported by relevant evidence or legal authority. The Applicant submitted she "had been a licenced real estate agent and also authorised to exercise the functions of an Auctioneer since 2010". The Applicant was aware when she made the submission, that it was partly incorrect. She had not held a relevant licence from 19 January 2019 (when her Individual Licence expired) until 19 December 2019 (when she was granted Licence number 20266948) which she held until 22 March 2020. On 23 March 2020 the law changed and Licence 20266948 automatically transitioned to a conditional Class 2 real estate agent's licence. I also note that the Applicant has produced no evidence that she had actually carried on business as a real estate agent and / or auctioneer at any relevant date (from 2010) and expressly conceded in a written communication to the Respondent on 30 November 2020 "I wasn't working during 2018-2019 …"

[10]

Events from Tribunal hearing on 25 August 2021 to end October 2021

The matter was part-heard by the Tribunal on 25 August. Orders made that day (the August Orders) following a request from the Applicant, were to the effect that: 1. The matter was adjourned part-heard to 10 a.m. 22 October 2021 so as to give the Applicant time to obtain and send to Respondent, and subject to the Respondent's response, to the Tribunal: 1. Evidence of her mother's medical history from the date when the Applicant renewed her corporation licence instead of her own individual licence until her mother's death (shortly before the August hearing) and a medical certificate as to the effect on the Applicant of her mother's health in respect of her renewal of licences during that period; and 2. Evidence from [Mr Babbage] of what the Applicant had informed him as to which licence the Applicant intended to renew at the time that she actually renewed her corporation licence. 1. Mr Pintamalli would consider the evidence referred to above, on its receipt, with a view to seeking instructions to credit the Applicant with a 'backdated' individual licence application. If successful, the previous individual licence would be rolled over to a class I licence with effect from 23 March 2020 2. When/if a class 1 licence was issued, the Applicant would contact the Tribunal and withdraw the Application. 3. If no agreement was reached between the parties, the proceedings would resume on 22 October at 10 a.m. for half a day and the documents provided by Applicant to Respondent in paragraph (1) above; and other communications between the Respondent and the Applicant after 25 August may be tendered in evidence.
On 5 September at 7:35 a.m. the Applicant sent an email to the Respondent attaching documents described as "Medical documents concord hospital" and [Letter to Mr Babbage].
The Respondent's response to the Applicant on 5 September, extracted from RSS (at [5]), is set out below at [95].
On 24 September the Respondent sent an email to the Tribunal and the Applicant. The email referred to the August Orders, stated that the Respondent had considered documents provided by the Applicant and sought that Order 4 of the August Orders be enforced and the proceedings resume on 22 October.
On 28 September, by email sent at 9:26 a.m., the Applicant sought confirmation from the Respondent that it had received a letter from Dr Waite including a chronology as to her mother's health "since (sic) 2017 and ending 10:08:2021" and a statutory declaration by Mr Babbage as ordered by the Tribunal. 1. The Applicant's email also asked for the basis on which the Respondent wanted to "return to the court", and whether there was any other information the Applicant could provide to expedite the matter.
The Respondent's emailed response at 3:40 p.m. on 28 September stated the Respondent was not "satisfied that the material provided is sufficient to extend the period within which an application for the restoration of a licence may be made due to inadvertence …" and We are unable to answer your question "if there is any other information I can provide to you in order to expedite this matter" as we are not your legal representative. The Respondent cannot provide you with legal advice with regards to this matter.
On 28 September the Tribunal issued procedural directions including: 1. noting that it had afforded the parties the opportunity to make submissions about a proposed order to dispense with a hearing and determine the matter on the papers and taken into account such material as the parties had provided to the Tribunal, and 2. noting the Tribunal was satisfied that the issues between the parties could be adequately determined by the Tribunal in the absence of the parties by considering the material presently before the Tribunal together with any further material provided by the Applicant and the Respondent in accordance with prior orders and any further material filed and served by the Applicant no later than 5 October and filed and served by the Respondent no later than12 October.
On 19 October 2021 the Applicant requested the Tribunal's permission to attend the 22 October hearing in person because she found it difficult to "communicate documents via devices due to having to wear 2 different glasses to read documents at hand and another for reading screen devices" and "the Applicant is finding the whole process very stressful for a simple error the Applicant renewed inadvertently the corporation license and not the Applicant's individual license." (sic)
On 20 October: 1. the Respondent submitted by email that it did not consent to the Applicant's request to attend the 22 October hearing in person and provided its reasons. 2. the Tribunal determined that there were no demonstrated exceptional circumstances, observed the request for the Applicant to attend the hearing in person had been refused; and having regard to orders made on 25 August and subsequently, and the communications between the parties, the matter could be adequately dealt with on the papers. Accordingly, the hearing scheduled for 22 October was vacated. 3. at 9:44 p.m. the Applicant, by email, provided further documents to the Tribunal, copied to the Respondent, stated to be in support of the Applicant for the forthcoming hearing at 10:00 a.m. on 22nd October.
On 21 October at 4:21 p.m. the Tribunal received an email from the Applicant attached to which was a Corporation Licence under the old Act certifying that AREA was licensed as a corporation under that Act. I observe that the licence had originally been granted on 22 September 2010 and expired on 21 September 2018.

[11]

The Applicant's case

In the Application, which the Applicant claims was lodged with the Tribunal both within and outside the statutory time limit, the Applicant applied for a review of the Determination which affirmed the rejection of the Applicant's application for a class 1 licence.
The Applicant relied mainly on two bundles of documents, namely AS and supporting documents, and SSA and supporting documents.
I observe that AS appeared under the heading "Summation of reasons for the application for Tribunal review" as follows: I, Paris King-Orsborn (the applicant) have held two real estate licences since 2010, an Individual Licence No.1611761 and a Corporation Licence: No. 1661133 (held through my company). In December 2018, I inadvertently renewed the Corporation Licence … thinking I was renewing the Individual Licence. I was also intending to cancel the Corporation Licence in the near future. I only discovered the renewal error in September 2019 when I called to enrolled (sic) for my annual mandatory CPD 12-point course and was informed that my Individual Licence was not current and that I could not enrol until it was renewed. I then contacted NSW Fair Trading (NSWFT) to inform them of this. I was told to put the information in writing which I did but I had no response from them after calling many times. In this letter I informed NSWFT that I no longer needed the Corporation Licence and [requested] they return the fee or transfer it as payment of the Individual Licence which I had originally intended to renew but was by now not current. They finally called me in mid-November 2019 regarding my Corporation Licence with no reference to my Individual Licence and was told I had to wait for another call regarding that. After again not hearing from NSWFT I called again on many occasions and was finally informed in December I needed to make an individual application for the restoration of my Individual Licence. I did this and NSWFT reissued the licence but with a new licence number No. 20266948. The new licence number should have been dated backed to the expiry date of the original licence (Fair Trading Act 1987, Section 60EA paragraphs 2,4,5 and 6) because the reason for non-renewal was inadvertent (sic) and that there was a clear history of this proved. The application that was made was for a restoration on the advice of NSWFT. Finally, I believe that the link between the original Individual Licence number and the new number was not understood by NSWFT, nor was the industry experience I had had since 2010 taken into fair account when NSWFT made their decision not to grant a Class 1 Licence as part of the reform that took effect on March 23rd, 2020.
SSA was received by the Tribunal outside the time allowed to the Applicant. Approximately one page of SSA responded to specific parts of RSS and the remainder of the document substantially repeated arguments which the Applicant had already made. Although I refer to certain aspects of SSA below, I do not need to restate the Applicant's repetitive arguments.

[12]

The Respondent's case

The Respondent submitted at [37] … the gravamen of this matter before the Tribunal is whether: a. the Applicant is entitled to a Class 1 Real Estate Agent's Licence; and b. whether REAL 1611761 should be restored.
The Respondent closed its submissions at [73] and [74] as follows: 73. Sections 19 and 14(1)(c) of the PSA Act clearly state the Secretary, and hence the Tribunal on review, must not grant a licence unless an applicant meets the qualification requirements specified in the Order; this is a mandatory requirement under the PSA Act. As such, the Respondent submits that the Tribunal should affirm the Respondent's decision to refuse the Applicant's application for a Class 1 Real Estate Agent's Licence. 74. The Respondent further submits that the Tribunal should not restore REAL 1611761 as the failure to apply for renewal/restoration of the licence before it expired was not due to inadvertence and it is not just and not equitable to restore.
On 11 October, the Respondent filed RSS which included: 4. On 5 September 2021, the Applicant sent to the Respondent via e-mail filed Medical documents concord hospital and a Letter from Mr [Mr Babbage] . … 5. On 6 September 2021 the Respondent informed the Applicant via e-mail that: a, Section s25A(2) of the [PSA Act] states that Secretary, and hence NCAT on review, may extend the period within which an application for the restoration of a licence may be made if the Secretary is satisfied, and in this case the Tribunal, that 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 it is just and equitable to restore the licence. The medical letter you have sent deals with medical issues in 2021. NCAT, and NSW Fair Trading, needs to know why you did not renew by 19 January 2019 or restore by 19 April 2019. The only issues that are relevant are why you did not renew or retore in 2019 and what reasons lead to you inadvertently not renewing or restoring in 2019. The letter is of no assistance to NSW Fair Trading or NCAT as it involves issues 2 years after the matters that NCAT are dealing with; and b. The letter from [Mr Babbage] is unsigned and is not a statutory declaration. A statutory declaration is required from [Mr Babbage] and medical evidence dealing with 2019 that impacted on your ability to renew/restore the licence is needed. The

[17]

Health of the Applicant and her mother at or about 22 December 2018 - Medical evidence

The Applicant submitted that in December 2018, when she successfully applied for a renewal of her corporation licence, that she was so badly affected by her mother's poor health and hospitalisation that she accidentally applied to renew her corporation licence instead of her Individual Licence. In support of this submission the Applicant relied on 2 medical certificates.
The Applicant provided to the Respondent, and the latter provided to the Tribunal, a letter with an electronic signature of A/Prof Louise Waite (Dr Waite) on a letterhead of NSW Health Sydney Local Health District, dated 30 August. The letter stated: I am a medical practitioner with specialist qualifications as a Geriatrician. Mrs Tsitsos has been a patient of Concord Hospital with an admission in May 2021 and subsequent admission in August 2021. Mrs Tsitsos was under my care in the latter admission when sadly she was significantly unwell and passed away. The significant nature of Mrs Tsitsos illness required attendance of her daughter Paris King-Orsborn at the hospital during her mother's hospitalizations. Many thanks for consideration of these factors and should you have any queries please feel free to contact me.
After the Respondent pointed out that the periods referred to in the 30 August certificate substantially post-dated the December 2018 relevant date, the Applicant provided a further letter from Dr Waite dated 7 September to the Respondent which the Respondent provided to the Tribunal. the second certificate is as follows: I am a medical practitioner with specialist qualifications as a Geriatrician. Mrs Tsitsos was admitted to Concord Hospital in August 2017 including a period of time in the Intensive Care Unit. Mrs Tsitsos has subsequently been admitted to Concord Hospital in May 2021 and August 2021 Mrs Tsitsos came under my care in the latter admission when sadly she was significantly unwell and passed away. The significant nature of Mrs Tsitsos illness required attendance of her daughter Paris King-Orsborn at the hospital during her mother's hospitalization Many thanks for consideration of these factors and should you have any queries please feel free to contact me.
On 28 September, by email sent at 9:26 a.m., the Applicant sought confirmation from the Respondent that it had received, a letter from Dr Waite with a chronology concerning the Applicant's mother's health deterioration "since 2017 and ending 10:08:2021".
The Respondent submitted at [15.a] and [15.b] in RSS (7 October): … the evidence provided by the Applicant does not aid the Tribunal regarding the Applicant's mother's medical history during relevant period until death. The medical letter provides no assistance during the relevant period, being 2019 which was the time that the licence was to be renewed/restored; mental effect on Applicant based on her mother's health as no evidence has been provided;
The Applicant responded to RSS [15.a] at SSA [13.e] (20 October): … The letter from Dr Waite was to simply provide proof of the applicant's mother's illness and death. The letter from Dr Waite clearly states this for the period from 2017 to 2021 and proves that the applicant was telling the truth. …
The Applicant responded to RSS [15.b] at SSA [13.f]: … The applicant objects, that the stress she was under at the time she inadvertently renewed the wrong licence can be referred to as "mental health" issue. Many individuals suffer stress from time to time but are not labelled as having a "mental Health" issue. No proof can be offered for an issue that was simply a matter of stress for which no treatment was being undertaken. For the respondent to dwell on this point is a deliberate clouding of the issue of the simple inadvertent renewal of the wrong licence well before reform took place on the 23 rd March 2020
I reject the Applicant's interpretation of Dr Waite's certificates as probative evidence as to the Applicant's mother's poor health in December 2018 and I reject those certificates as evidence that the Applicant's mother was in hospital at or about that time. The certificates do not support the submissions. Accordingly, my findings substantially weaken the unsupported submissions by the Applicant as to the state of her health at that time.
Other reasons given by the Applicant for her "inadvertent" error included: 1. (By implication) there was no other reason the Applicant would have attended a CPD 12 points course on 17 January 2019: SSA [6]. 2. The two licence numbers were easily confused because the first few digits of each were "very similar (1611 and 16611)": SSA at [10]. 3. The Applicant "simply made inadvertent renewing the incorrect licence at the time due to stress affected directly by the immediate family": SSA at [10]. 4. The Applicant had not used AREA for several years.

[18]

Mr Babbage's involvement

The Respondent submitted: 1. at RSS [3.b]: 3. On 25 August 2021, the matter was listed for hearing before Senior Member Isenberg. Following an application by the Applicant, the Tribunal made the following order [for the Applicant to produce]: … Evidence from Timothy John Babbage of what the Applicant had informed him as to the licence renewal application Applicant wanted to make at relevant time, application for individual not corporate licence. 1. at RSS [5.b]: On 6 September 2021 the Respondent informed the Applicant via e-mail that: The letter from Timothy Babbage is unsigned and is not a statutory declaration. A statutory declaration is required from Timothy Babbage and medical evidence dealing with 2019 that impacted on your ability to renew/restore the licence is needed. 1. at RSS [13.b]: 13. The Respondent submits that the orders made by the Tribunal on 25 August 2021 were clear, with the Applicant required to submit: b. Evidence from Timothy John Babbage of what the Applicant had informed him as to the licence renewal application Applicant wanted to make at relevant time, application for individual not corporate licence.… 1. at RSS [15.c]: 15. The Respondent submits that the evidence provided by the Applicant does not aid the Tribunal regarding the Applicant's: … c. state of mind at the time of renewal/restoration as Mr Babbage does not state how he was aware of the Applicant's intention at that time. Mr Babbage simply gives a broad statement that the Applicant had an intention but proffers no evidence to the Tribunal of how he was aware of this intention. The evidence of Mr Babbage falls well short of aiding the Tribunal on the Applicant's actual state of mind.
The Applicant submitted 1. at SSA [13.d]: Point 13b. A statuary declaration has been provided by [Mr Babbage] regarding the applicant's intention as to which licence the applicant intended to renew on the 22nd December, 2018. 1. at SSA [13.g]: Point 15c. The applicant objects to the Respondents claim that the evidence [Mr Babbage] presents in his Statuary Declaration "falls well short of aiding the Tribunal as the order of the Senior Member was for [Mr Babbage] simply to provide in writing, "Evidence ... of what the Applicant informed him as to the licence renewal application Applicant wanted to make at relevant time, application for individual not corporate licence." Quote from NCAT letter. Amended Order 25th August 2021. This is what [Mr Babbage] states very clearly in his Statuary Declaration of 11th September 2021 and the Senior Member's order did not require [Mr Babbage] to make an assessment of the applicants state of mind and only the applicant's "intent" and also did not require [Mr Babbage] to state "how he was aware of this intention". Had the respondent request this order that applicant would have expressed same to [Mr Babbage] to do so.
The Respondent attached to RSS an unsigned unaddressed letter dated 25 August, apparently from Mr Babbage, which, subject to limited legibility, stated: I can confirm that Paris King-Orsborn intended to renew her 2018 renewal of Individual Real Estate Licence in January 2018 as she was offered a position in Real Estate sales for a proposed property redevelopment in the North Sydney AREA. Can you please consider this application in good faith when considering her case for reinstatement of her Personal Real Estate Licence from January 2018 [or 2019].
I accept that the years "2018" may have been intended to read "2019".

[20]

The Respondent's case

The Respondent submitted at [64] that it was not just and not equitable to restore the Individual Licence.
The Respondent's express reasoning included: 65. … the Applicant has still not demonstrated that she carried on business under the licence as a real estate agent as the principal of that business or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business. On this fact alone, the Applicant would be unable to obtain a [class 1 licence] … which is a main reason why the matter is before the Tribunal. … the Applicant has a Real Estate Agent's Licence and can work if she so wishes. [The class 2 licence issued to the Applicant] has not disadvantaged or put unreasonable pressure on the Applicant. 69. Procedural fairness is used interchangeably with natural justice. Procedural fairness is the right to be given a fair hearing and the opportunity to present one's case, the right to have a decision made by an unbiased or disinterested decision-maker, and the right to have that decision based on logically probative evidence. 71. The Respondent submits that the Applicant was afforded procedural fairness. The decision made by the Respondent was not prejudiced, the Applicant was given a fair hearing which included requesting further information and allowing the Applicant to clarify issues on several occasions, and the decision to reject the Application was based on logically probative evidence. … 73. Sections 19 and 14(1)(c) of the PSA Act clearly state the Secretary, and hence the Tribunal on review, must not grant a licence unless an applicant meets the qualification requirements specified in the Order; this is a mandatory requirement under the PSA Act.
The Respondent also provided submissions in relation to the issue and process of "renewal" of the Individual Licence. These submissions include: 1.a - a. Between 19 January 2012 to 21 January 2018 (inclusive), the Applicant was sent documents from the Respondent that the [Individual Licence] was required to be renewed or restored… 3. On 19 January 2019, [the Individual Licence] was set to expire unless renewed by the Applicant on or before 19 January 2019 or restored by the Applicant on or before 19 April 2019. The letter, sent to the Applicant on 15 December 2018 via e-mail, informed the Applicant of this fact [and] contained the relevant renewal/restoration forms … The warning printed at the bottom of the application … stated: "If your licence expires you will be unlicensed. The Property, Stock and Business Agents Act 2002 carries substantial penalties for persons convicted of acting as or carrying on the business of an agent whilst not being the holder of a licence If your licence expires and it is not restored by lodging this application within three months of the expiry date, any future licence granted to you will be issued with a new licence number. " … 63 … on 16 September 2019, the Applicant informed the Respondent that "it's now come to knowledge that my individual license (1611761) had not been renewed and I had by error renewaled [sic] my corporation license. (1661133)". This e-mail contradicts the position held by the Applicant on 30 November 2020 that her failure to renew While it is correct to state that the Applicant received an application to renew [the Individual Licence] on 15 December 2018 … the Respondent submits it is illogical that the Applicant would receive a renewal for [the Individual Licence] via e-mail on 15 December 2018 and become confused to the point that she would use an application sent to [AREA] via e-mail on 17 Auqust 2018, even though the Applicant has claimed that she has not traded via [AREA] "more than 7 years" especially when the renewal form for [AREA] clearly shows it was sent to [AREA] for a 'CORPORATION LICENCE' … and the renewal form for the Applicant clearly shows it was sent to [the Applicant] for a 'Real Estate Agent' licence …

[21]

Consideration

Section 25A is named "Time period for restoration of licence" and, amongst other matters, provides a time frame for an application for restoration of an expired licence. I have dealt elsewhere in these Reasons with the issue of inadvertence. Section 25A(2)(b) raises the "just and equitable" issue.
In Kutup v Commissioner for Fair Trading [2021] NSWCATOD 131, one of the few Tribunal decisions regarding the application of the relatively new PSA Act, Senior Member Naida Isenberg observed at [45] ""Just and equitable" is not defined in the Act."
Early in 2020, in Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143, the Appeal Panel of the Tribunal considered whether it was "just and equitable" to allow a builder to claim under quantum meruit in a building dispute.
The context of the dispute in Nyunt is substantially different from the dispute in these proceedings. However, in the absence of judicial guidance in respect of the interpretation of the meaning of "just and equitable" in the new legislation I note that the Panel held at [70]: 70. It is well-recognised that the words "just and equitable" are words of the "widest significance and do not limit the jurisdiction of the Court to any case. It is a question of fact, in each case which must depend on its own circumstances": Re Bleriot Manufacturing Aircraft Co (1916) 32 TLR 253 at 255 cited by Barrett J (as his Honour then was) in Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 (Eddy Lau). 71. As Barrett J also observed in Eddy Lau at [48], section 94(1A) of the HBA "must therefore be seen as conferring a discretion that is wide but must be exercised judicially in the light of the whole of the circumstances surrounding the relevant subject matter."
I have regard to the decision in Nyunt.
There is no evidence before the Tribunal as to the nature of the relevant work, if any, carried out by the Applicant from the time she first obtained an Individual Licence in either January 2009 or January 2010 until the licence expired in January 2019, merely that the Applicant held a relevant licence.
The Applicant now holds a class 2 licence which enables her to carry out much of the work she was entitled to carry out prior to January 2019.
There is no evidence before the Tribunal as to whether the opportunity to work on a particular development which may have existed in late 2018 or early 2019 is still available to her. Nor is there any evidence as to whether the Applicant needs a class 1 licence to carry out that work or whether a class 2 licence would be adequate. Accordingly, it is not possible to made reasoned findings as to whether the Applicant would suffer any hardship if she did not hold a class 1 licence.
Having regard to other findings I make in these reasons including as to the qualifications which are required since 23 March 2020 to hold a class 1 licence, and the evidence as to the extent of the Applicant's relevant qualifications, I find on balance that I am not satisfied that it is just and equitable to restore the class 1 licence sought by the Applicant.

[24]

The Applicant's health

In relation to the effect on the Applicant of her mother's illness, the Applicant obtained and provided to the Respondent, a medical certificate dated 30 August 2021 (the First Certificate) from an identified doctor with specialist qualifications (the Doctor) who had cared for the Applicant's mother, Mrs Tsitsos, at Concord Hospital and was aware the Applicant had attended to Mrs Tsitsos while the latter was at the hospital.
The Respondent informed the Applicant that the First Certificate was not acceptable for various reasons. I agree with the Respondent and observe that the First Certificate referred to admissions by Mrs Tsitsos in May and August 2021. These dates do not accord with the relevant period more than two years, earlier when the Applicant completed and provided to the Respondent an application to renew the corporation licence. The Applicant stated in SSA the renewal occurred on 22 December 2018. I also observe that the First Certificate did not refer to any relevant adverse effect on the Applicant relating to her mother's illness.
The Applicant then obtained a second certificate, dated 7 September 2021 (the Second Certificate). This was also rejected by the Respondent. I observe that the Second Certificate states "Mrs Tsitsos was admitted to Concord Hospital in August 2017 including a period of time in the Intensive Care Unit. Mrs Tsitsos has subsequently been admitted to Concord Hospital in May 2021 and August 2021. Mrs Tsitsos came under my care in the latter admission … The significant nature of Mrs Tsitsos illness required attendance of her daughter [the Applicant] at the hospital during her mother's hospitalization."
Unfortunately for the Applicant, neither certificate makes any reference to a hospitalization occurring within 4 months of the relevant date. Mrs Tsitsos' ill health may well have resulted in an adverse effect on the Applicant's health at some time. However, neither certificate refers to any such negative effect on the Applicant.

[25]

Mr Babbage's knowledge of the Applicant's intentions.

There is no dispute that the original letter dated 25 August 2021 on which the Applicant initially relied was not signed by Mr Babbage or any other person. A copy of the letter received by the Respondent from the Applicant's iPhone on 5 September, was attached to RSS.
To the best of my understanding, the semi-legible letter stated: I can confirm that Paris King-Orsborn intended to renew her 2018 renewal of Individual Real Estate Licence in January 2018 (sic) as she was offered a position in Real Estate sales for a proposed property redevelopment in the North Sydney area. Can you please consider this application in good faith, when reviewing / assessing [not fully legible] her case for reinstatement of her Personal Real Estate licence from January 2018 / 2019 [date is indistinct] to the current year.
The Applicant also provided to the Respondent a copy of a statutory declaration made 11 September 2021 in the name of Mr Babbage worded as follows: I can confirm that Paris King-Orsborn intended to renew her 2018 renewal of Individual Real Estate Licence in January 2019 as she was offered a position in Real Estate sales for a proposed property redevelopment in the North Sydney area. Can you please condiser (sic) this application in good faith, when assessing her case for reinstatement of her Personal Real Estate licence from January 2019 to the current year.
In response to the statutory declaration the Respondent submitted at RSS [15] and [15.c]: 15 The Respondent submits that the evidence provided by the Applicant does not aid the Tribunal regarding the Applicant's: … c. state of mind at the time of renewal/restoration as Mr Babbage does not state how he was aware of the Applicant's intention at that time. Mr Babbage simply gives a broad statement that the Applicant had an intention but proffers no evidence to the Tribunal of how he was aware of this intention. The evidence of Mr Babbage falls well short of aiding the Tribunal on the Applicant's actual state of mind.
I observe that the relevant Tribunal order was to the effect that the Applicant would obtain and provide to the Respondent: Evidence from Mr Babbage of what the Applicant had informed him as to the licence renewal application [the] Applicant wanted to make at relevant time, application for individual not corporate licence.
It is possible that Mr Babbage intended to include in his statutory declaration some indication of the source to him of the Applicant's state of mind. Mr Babbage has provided no evidence as to how or why he formed the opinion as to what the Applicant intended. It is possible that Mr Babbage formed his impression of the Applicant's intention having been advised to that effect by the Applicant or by a third party. However, Mr Babbage is silent as to the source of his knowledge. Accordingly, I have no clear basis for finding that Mr Babbage was informed by the Applicant as to her relevant intentions. I also note that neither Mr Babbage nor the Applicant have provided any supporting evidence, such as a written communication from a developer or a description of an oral offer from the developer to the Applicant.
Even if there was a developer and the Applicant intended to renew her Individual Licence in order to accept an offer, I observe that the Applicant stated in her 30 November 2020 email to the Respondent (which appears at page 34 of the s 58 documents) "I wasn't working during 2018-2019 as a result of serious family issues". The Applicant did not elaborate as to the start date or end date of the period "during 2018-2019" when she was not working. However, the date the Applicant submitted her application for a corporation licence was 22 December 2018 which seems to me to be very close to the middle of the period in which the Applicant states she was not working, not because work was not available but "as a result of serious family issues". There is also no evidence as to why the Applicant could not use her licensed company to fill the role referred to by Mr Babbage.
Having regard to the material before the Tribunal I am not satisfied on the balance of probability that the Applicant intended to renew her Individual Licence when she effectively renewed her corporation licence with the Respondent in December 2019.

[27]

Compliance with the PSA Act and the Property and Stock Agents (Qualifications) Order 2019 (NSW)

The Applicant submitted, at SSA [3] and following, that on 13 September 2019 she first became aware that "she possibly inadvertently renewed the incorrect license" (I). She also submitted that in a 27 September 2019 email the Respondent paid no attention to s 25A(2)(a) and (b) the of PSA Act even though they knew that the Applicant had made an error and had requested a refund of the inadvertent payment against the incorrect licence renewal … The applicant relies on [those sections] … and any other possible Act that the senior member finds fit to conclude that the applicant had indenteIsic) to renew the applicant's individual licence …"
There is no dispute that the PSA Act and the Qualifications Orders took effect on 23 March 2020. That this was the date the legislative change took effect was conceded by the Applicant at SSA [9], [10] and [13.f].
The Applicant has also been aware since before the hearing on 25 August 2021 that at [6] in RS, the Respondent submitted: On 23 March 2020, reforms to the regulation of the real estate and property agency industry commenced, including renaming the Property, Stock and Business Agents Act 2002 to the Property and Stock Agents Act 2002 (the PSA Act). The changes to the PSA Act were supported by the commencement of the Property and Stock Agents (Qualifications) Order 2019, … 23 March 2020.
I am not aware that the Applicant has made any substantial submission or provided any authority to the effect that the legislative reforms took effect retrospectively. Accordingly, I reject the Applicant's submission, that, in September 2019, some 6 months before the legislation took effect, there was any reason for the Respondent to have had regard to the PSA Act, which was not then in effect.
Indeed, I observe the Respondent's observation" at [7] to the effect: On the commencement of the PSA Act, REAL 20266948 automatically transitioned to a Class 2 real estate agent's licence with a condition that the holder only exercise real estate sales or leasing functions or on-site residential property manager functions.

[37]

Pathway 3 - transitional provision former licence holders

Clause 10(4) requires that the person has satisfied each of 3 mandatory requirements including, at cl 10(4)(c): (c) immediately before the commencement day - (i) held a real estate agent's licence for at least 2 years, or (ii) held a real estate agent's licence and carried on business under the licence or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business.
The Applicant conceded that the commencement date for the legislative reforms discussed above was 23 March 2020: SSA at [13.f] and see cl 2 of the Order.
In respect of cl 10(4)(c)(i), the Applicant has conceded in both AS and SSA that she became aware in September 2019 that she had failed to renew her Individual Licence. The Applicant emailed a request to the Respondent on 16 September 2019 for the restoration of her Individual Licence. There is no doubt that a new Individual Licence, No. 20266948 was subsequently issued to the Applicant.
There is no doubt that during the period from 2010 to 23 March 2020, the Applicant held an Individual Licence for more than 2 years. However the wording of cl 10(4)(c)(i) is that the licence must be held for that period of time immediately before the commencement day".
As the Respondent observed at [55] and following, this issue was dealt with recently by Senior Member Naida Isenberg in Konrad v Commissioner, NSW Department of Fair Trading [2021] NSWCATAD 229 at [32] where the Senior Member said: The Act, it seems to me, suggests that the real estate agent's licence must have been held for a continuous period of 2 years immediately before the commencement of the Act. There is no provision for aggregating licence periods. In coming to that view I observe that cl (4)(c)(i) and (ii) both require that the person held a real estate agent's licence. If "immediately before" were to be interpreted otherwise, those provisions would have said "has held". Similarly, on that interpretation, "immediately before" would have no work to do.
The Respondent further submitted: 55. The PSA Act commenced on 23 March 2020. The Applicant had no licence under the old Act from 19 January 2019 to 19 December 2019, being 11 months. 56. On 19 December 2019, 11 months after her licence had expired, the Applicant obtained REAL 20266948. As such, the Applicant has held obtained REAL 20266948 for 3 months before the commencement day of 23 March 2020, that is 21 months short of the required 2-year period. 57. The Respondent submits that the Applicant is unable to meet cl 10(4)(c)(i), as immediately before the commencement of the PSA Act the Applicant did not hold a class 2 licence (or its equivalent per cl 6 of the Order) for 2 years immediately before the commencement of the PSA Act.
There is no dispute as to the events and dates referred to in [55] and [56] above. I concur with the submission of the Respondent at [57]..
I also observe in relation to cl 10(4)(c)(ii), that the Respondent submitted at [59] to [61]: 59. … the Applicant has not demonstrated that she carried on business under the licence as a real estate agent as the principal of that business or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business. 60. On the contrary … the Applicant was not working during 2018 - 2019 … and the Applicant held no licence from 19 January 2019 to 19 December 2019, being 11 months. 61. … the Applicant is unable to meet cl 10(4)(c)(ii), as it not been demonstrated that the Applicant carried on business under the licence as the principal of that business or was employed to be the person in charge of business.
Having regard to the material before me, I accept those submissions of the Respondent. Accordingly, I find that the Applicant has not satisfied the requirements of Pathway 3 of cl 10 as she did not meet the requirements of either cl 10(4)(c)(i) or (ii).

At a glance

Court

Decision date

Source

Judgment (43 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (4)

Cited By (4)