Perez v Commissioner for Fair Trading

Background

1. Ms Perez completed a Certificate IV in Property Services (Real Estate) (CPP40307) at TAFE in 2019. She was issued with an individual property licence in the category of real estate agent on 14 February 2020.
2. Shortly after that, on 23 March 2020 some significant changes to the licensing of real estate agents came into effect. A new three-tier licence structure was introduced. As a part of these changes, Ms Perez's licence was automatically transitioned to a class 2 agent - real estate - sales or leasing.
3. According to the Respondent, when the licence was soon to expire, an email was sent to Ms Perez on 9 January 2021 which stated: "Your licence will expire unless the application for renewal is lodged by 13/02/2021."
4. The email had a link in it for renewal of the licence. The Notice of Renewal/Restoration of a Licence addressed to Ms Perez stated: "A restoration fee will be charged if you lodge this renewal after the due date. An Application for Restoration may not be able to be made more than three months after 13/02/2021."
5. According to the Respondent, on the same date, Fair Trading sent Ms Perez the following text message: "Hi, your licence is due for renewal on 13/02/2021. Renew at [web address] Contact us on 02 9619 8799. Fair Trading."
6. Ms Perez did not renew her class 2 agent - real estate - sales or leasing licence and it expired on 13 February 2021.
7. On 2 November 2022 Ms Perez contacted Fair Trading by email, seeking a continuation of the same class of licence on the basis of what she described as compassionate grounds. In response, a licensing advisor from Fair Trading emailed Ms Perez on 15 November 2022 and explained that a restoration application had to be made in the approved form and the prescribed fee had to be paid.
8. On 21 November 2022 Ms Perez lodged an application form for restoration of her class 2 agent licence to Fair Trading and paid the prescribed fee.
9. The Commissioner refused the application for restoration of the licence on 16 December 2022 on the basis that the Commissioner would not extend the period for the making of the restoration application as it was not just and equitable to restore the licence. On 8 February 2023 that decision was affirmed on internal review.
10. Having not been successful in having her class 2 real estate licence restored, Ms Perez applied for a certificate of registration and was advised by Property, Transport and Business Licensing that her Certificate IV (CPP40307) was no longer "applicable" and she needed to contact a Registered Training Organisation ('RTO') for recognition of prior learning. She did so and was provided a certificate of attainment for five units. The Respondent then granted her a certificate of registration on 22 February 2023.
11. Ms Perez lodged application for administrative review of the decision to refuse the grant her a licence with the Tribunal on 3 March 2023.

Time for making an application for restoration of a licence

1. The relevant section of the Property and Stock Agents Act 2002 is section 25A reads: 25A Time period for restoration of licence (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. (3) A licence that has been surrendered or cancelled must not be restored. (4) An application for the restoration of a licence must - (a) be made in the approved form (if any), and (b) be accompanied by the fee prescribed by the regulations, and (c) nominate a term of duration for the licence. (5) A licence restored at any time is taken to have been restored from the day on which the licence expired. (6) Subject to this section, this Act applies to an application for the restoration of a licence in the same way as it applies to an application for a licence.
2. The Commissioner's decision to refuse to grant Ms Perez a licence was based on this section. Ms Perez made an application for restoration and the Commissioner refused the application on the basis that the time period for the making of the restoration application should not be extended.
3. Ms Robosa, the solicitor for the Respondent agreed that the law was misstated by the original decision-maker. That decision referred to whether it was "just and equitable to restore [Ms Perez's] licence due to inadvertence". Clearly, a failure to apply for renewal due to inadvertence and whether it is just and equitable to restore the licence are two separate bases for extending the period for the restoration application and so this statement in the original decision is not a correct reflection of the law as set out in section 25A.

Qualification for a class 2 real estate agent's licence

1. The Property and Stock Agents (Qualifications) Order 2019 ('2019 Order') was part of the suite of changes made to the licensing or real estate agents referred to above. The 2019 Order commenced on 23 March 2020 and states that a person will have the qualifications required for the issue of a class 2 real estate agent's licence with a real estate agent restriction condition if they satisfy one of two pathways in clause 18: (2) Pathway 1 - holders of class 2 licence with real estate agent restriction condition The person has held a class 2 real estate agent's licence with a real estate agent restriction condition within 12 months before making the application for the new licence. (3) Pathway 2 - holder of certificate of registration The person has - (a) held a certificate of registration as an assistant real estate agent for at least 12 months (with or without a restriction condition), and (b) satisfactorily completed the class 2 work experience requirements during a 12 month period, and (c) immediately before the repeal of the Property, Stock and Business Agents (Qualifications) Order 2009, the qualifications required by clause 7 or 9 of that order for the issue of a real estate agent's licence.
2. The 2019 Order has a transitional provision in clause 23: (1) A person has the qualifications required for the issue of a class 2 licence if the person held - (a) an equivalent licence under the Act for a period of 2 or more years before the commencement of the amending Act, and (b) the equivalent licence did not expire more than 5 years before the commencement of the amending Act. (2) In this clause - amending Act means the Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018. equivalent licence means a licence that, in the opinion of the Secretary, is equivalent to the licence to which the application relates.

Administrative review jurisdiction

1. The Tribunal has jurisdiction to review a decision of the Commissioner for Fair Trading to refuse to grant a real estate licence following an application for restoration: refer to section 27(a) of the Property and Stock Agents Act 2002 and section 9(1) of the Administrative Decisions Review Act 1997.
2. When conducting an administrative review, the Tribunal must decide what the correct and preferable decision is, having regard to the material before it, including any relevant factual material and any applicable written or unwritten law, meaning legislation and common law: section 63 of the Administrative Decisions Review Act 1997.
3. The Tribunal is not confined to only considering the material that was before the Commissioner at the time the decision under review was made. The Tribunal can also have regard to any relevant material before it at the time of the review: see Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

Decision under review

1. The Respondent, in written submissions, characterised the decision under review as a decision refusing to extend the period of time for restoration of Ms Perez's licence.
2. I do not agree with that description. In the letter from Fair Trading to Ms Perez, dated 16 December 2022, the delegate refers to the application made by Ms Perez for the restoration of her real estate agent licence and explains that the Commissioner will not extend the period for the making of the restoration application. The delegate then stated, "Based on the above, I am not satisfied that it is just and equitable to restore the licence".
3. Similarly, the 9 February 2023 Department of Customer Service email to Ms Perez stated: "On the 16/12/2022 the restoration of your licence under Sections 25A(1) and Section 25A(2) of the Property and Stock Agents Act 2022 (the Act) was refused."
4. The Department of Customer Service letter to Ms Perez, dated 8 February 2023, also described the decision under review as the decision to "refuse the restoration of your expired class 2 agent licence".
5. The decision under review is a decision to refuse a licence pursuant to an application for restoration of a licence. It is not a decision to refuse to extend the period for the making of the restoration application. The Tribunal therefore has jurisdiction to review the decision: section 27(a) of the Property and Stock Agents Act 2002.

Failure to renew the licence and the delay in seeking restoration

1. In her email correspondence with the Respondent on 2 November 2022 Ms Perez said that because of an autoimmune condition her doctor's advice was she was "exempted" from the Covid vaccine. She supplied a letter from her doctor dated 1 November 2022 to that effect, including that doctor's advice that she remain isolated as much as possible "from March 2020 til recently".
2. In her letter requesting an internal review, dated 6 January 2023, Ms Perez said the main reason that she did not renew her licence was "a direct consequence of the covid-19 virus, and its cascading effects on my personal and professional life." She said that she was home schooling her two children and was unable to work and had "no spare money to continue the registration that I would not be able to utilise due to my severe medical condition." She explained that she thought she would only be able to afford the licence renewal when she had returned to work. She had incorrectly thought the cost would be the amount charged for a new licence rather than the renewal fee, which is lower.
3. Ms Perez told the Tribunal that in 2020 "life stopped" because of the Covid pandemic. She had two young children at home aged approximately 7 and 8 years old and was home schooling them. She described things at home as "chaotic" and she did not realise her licence was expiring and also that if she did not renew her licence there would be significant consequences.
4. Ms Perez explained that because of her autoimmune disease, orbital inflammatory disease, she couldn't get the Covid vaccination. From March 2020 to November 2022, she isolated at home and did not even go to the shops. She would take walks with her children. She experienced financial difficulty and could not afford to pay the fee for renewal of the licence as she was not working at that time. Her husband was working less than usual and they had private school fees to pay and the costs of food and rent. She had to borrow money from their parents to cover these household bills. She could not pay for her licence in circumstances where she could not then work because she had to isolate at home. She was not able to carry on real estate work online as it usually involved opening homes and interacting with people in person.
5. Ms Perez handed up a copy of an email, dated 31 May 2021, showing a non-government welfare organisation provided her with $5,000 in assistance for household bills and expenses.
6. In written submissions, Ms Perez explained that given the financial strain she was under, the "immediate cashflow needs of running our household took precedence over all else" and she could not pay for the renewal of her licence.
7. Ms Robosa, for the Commissioner, suggested to Ms Perez that she merely chose not to renew her licence because she was not working for the period March 2020 to November 2022 and had no need for the licence. Ms Perez response was "Absolutely not."
8. Ms Perez also said she was shocked to find out that she could not be granted the licence and continue her capacity to work in the field following the changes that came into effect in 23 March 2020.

Qualifications and work

1. In oral evidence Ms Perez said the Certificate IV in Property Services (Real Estate) (CPP40307) she completed in 2019 took her about six months of full-time study. However, in written submissions filed after the hearing she said that the course took over four months of full-time study.
2. Ms Perez said she worked as a real estate agent for Mr Golan, Director of Gefen Group Real Estate, but only for about three or four months in mid-2020. She explained that she was not paid a salary and it takes a while to establish oneself and to generate commissions.
3. In her letter of 6 January 2023 Ms Perez explained that she had the "opportunity of working as an agent with a qualified estate agent" but without her licence she could not work. In an email on 10 February 2023 to Property Licencing Ms Perez described this as a "firm job offer and the employer while being very patient is starting to wain."
4. Ms Perez told the Tribunal that the fact she has now been issued a certificate of registration was unsatisfactory as she is limited in what duties she can perform and the Gefen Group would not employ her with just a certificate of registration. However, in written submissions, Ms Perez said that she had been working in a real estate office since February 2023 following her receipt of a certificate of registration. It is not clear whether this work is in fact paid.
5. Ms Perez provided a copy of a letter from Tomer Golan, Director, Gefen Group Real Estate, dated 2 June 2023. In that letter Mr Golan described Ms Perez as having a "high level of expertise and competence in the real estate industry." He said that Ms Perez was "known for her professionalism" and he described her as dedicated. Mr Golan expressed this view: I kindly request the tribunal to take into consideration Karin Perez's proven track record of success and the limitations imposed by her current certificate of registration. She has demonstrated all the skills and competencies required of a real estate license holder, and I believe it is only fair to allow her to renew her license.
6. Ms Perez rejected the Respondent's suggestion that she did not wish to continue to work in the industry.

Correspondence with the Respondent and the consequences of the failure to renew the licence

1. Ms Perez told the Tribunal that she did not see the email from Fair Trading on 9 January 2021 (referred to at [6]) which informed her that her licence was due to expire on 13 February 2021. She said it was not in her email inbox.
2. Ms Perez agreed that she did know that the licence issued to her on 14 February 2020 was for the period of one year. She did not remember when it was that her husband alerted her to the fact the licence had expired, but they decided to try to slowly gather the funds to pay to renew the licence.
3. Ms Perez said that she did not realise the consequences if she did not renew her licence. She said this was not explained by the Respondent at the time and nothing was explained about the changes to the legislation and that she now could not rely on her Certificate IV qualification.
4. Ms Perez said she has medical science qualifications but has not worked in that field for a long time. She said that she had an offer of work with the Gefen Group as a real estate agent in sales. However, the proprietor was not happy to wait and has since hired another person.
5. Ms Perez has now obtained a certificate of registration, issued on 22 February 2023. She cannot work alone and at the Gefen Group supervision is difficult for that particular job and that employer is not satisfied with just a certificate of registration. She said she continues to work there although her boss has recently been overseas which has had an impact.
6. Ms Perez said she was dedicated and wished to establish a career in real estate. She said that the decision to refuse to grant the real estate licence had a huge effect on her.
7. In the letter handed up at hearing, Ms Perez stated that the legislative changes posed a "considerable burden" upon her, describing the impact of those changes as "unfair and harsh" given her situation. Under those changes she had to complete a certificate of registration, work for an additional 12 months under a licence holder and re-do the licence course before she can apply for her licence again.

Commissioner's case

1. Ms Robosa submitted that the Tribunal cannot be satisfied that Ms Perez failed to apply for renewal before the licence expired due to inadvertence (refer to section 25A(2)(a) of the Property and Stock Agents Act 2002). She argued that as applications for licence renewals could be made online, Ms Perez could have renewed her licence before it expired without having to leave her house during the Covid pandemic.
2. Ms Robosa submitted that Ms Perez deliberately did not renew her licence as she was not able to engage in real estate activities or conduct business as she was not able to leave her home because of the risks associated with her health condition.
3. Ms Robosa submitted that Ms Perez did not renew her licence because she had no need for the licence and observed that she had not used her licence at all. She said that Ms Perez received $5,000 from the welfare organisation and yet decided not to use part of that to pay the renewal fee. Ms Perez responded and said she needed these funds for her rent and food.
4. Ms Robosa argued that it was not just and equitable to restore the licence because:

• A "significant amount of time" passed between the expiry of the licence on 13 February 2021 and the application for restoration on 21 November 2022; and
• If the Tribunal decided that Ms Perez's licence should be restored, the effect of section 25A(5) Property and Stock Agents Act 2002 is that the licence will be taken to have been restored from 13 February 2021, even though Ms Perez has not been carrying out real estate work or paying licence fees during that time.

1. Ms Robosa submitted that the legislation regulating the real estate industry is consumer protection legislation and designed to ensure licence holders are appropriately qualified and experienced. She said the changes that came into effect in March 2020 were designed to improve the education and professionalism of the industry.

The 2019 Order

1. I first considered the application of the Property and Stock Agents (Qualifications) Order 2019 ('2019 Order') on Ms Perez's circumstances on the basis of the undisputed facts. The relevant clauses are set out at [17] and [18] above.

Pathway 2

1. Ms Perez meets subclause 18(3)(c) as she completed a Certificate IV in Property Services (Real Estate) (CPP40307) in 2019, which is the qualification referred to in the Property, Stock and Business Agents (Qualifications) Order 2009 ('2009 Order'). However, the Commissioner submitted that Ms Perez is not able to meet the other requirements of subclause 3, that is, she held a certificate of registration as an assistant real estate agent for at least 12 months and completed certain prescribed work experience requirements during a 12 month period.
2. According to an email to Ms Perez from a representative of Property Licensing in the Department of Customer Service on 21 February 2023, Ms Perez must apply for and hold a Certificate of Registration for 12 months before she can apply for a Class 2 licence again.
3. Ms Perez was issued with a Certificate of Registration as an assistant real estate agent on 22 February 2023. There is no evidence before the Tribunal that she has held a certificate of registration for 12 months and satisfied the class 2 work experience requirements. She therefore does not meet the requirements of Pathway 2.

Pathway 1

1. Ms Perez cannot meet Pathway 1 because she did not hold her licence within 12 months of making an application for a new licence. Her licence expired on 13 February 2021 and she did not make contact with Fair Trading until 2 November 2022 to enquire about "continuation" of the licence and on 21 November 2022 the application for restoration was made.

Transitional provision

1. Ms Perez does not come under this transitional provision because she did not hold the equivalent licence for a period of two or more years before the commencement of the amending act. It is not disputed that she held the licence from 14 February 2020 to 13 February 2021.

Findings of fact

1. Having considered all the evidence, I make the following findings of fact.
2. I find that Mr Perez knew when her licence was issued that it was for a one year period and would expire if not renewed.
3. I find that Ms Perez's class 2 agent - real estate - sales or leasing licence expired on 13 February 2021. She made an application for restoration on 21 November 2022, by submitting the approved form and paying the prescribed fee, which was 21 months after her licence expired.
4. I accept that Ms Perez was unable to work from March 2020 until about November 2022 because, on her doctor's advice, she did not receive the Covid vaccine and remained isolated and at home due to high risk. These circumstances directly resulted in Ms Perez being unable to work and put significant financial strain on her family finances such that she was not in a position to pay for the renewal of her licence. The $5,000 Ms Perez received from a non-government welfare organisation was paid to her for food and other household bills. I accept that Ms Perez was not in a position to pay for the renewal of her real estate licence during the period she was not working and I find this was the reason that she did not renew the licence.
5. The effect of the doctor's advice was that Ms Perez lost the opportunity to work as a real estate agent by utilising her class 2 agent - real estate - sales or leasing licence over the period March 2020 to 13 February 2021.
6. I find that on 9 January 2021 the Respondent did send an email and text message to Ms Perez informing her that her licence was due to expire on 13 February 2021. I accept the documentary evidence in the section 58 documents which shows when the email and text message was sent. These records are more reliable that Ms Perez's oral evidence that she did not receive the email.
7. I accept that Ms Perez did wish to continue to work in the industry and that it was the effect of the Covid pandemic on her ability to work that stopped her working in the industry. This is further shown by the fact that since the decision to refuse to grant the licence, Ms Perez has obtained a certificate of registration.
8. I find on the uncontested evidence that Ms Perez worked at Gefen Group for about three or four months in mid-2020 without being paid. She has also worked there following the issue of a certificate of registration in February 2023 although it is unclear what her duties have been and to what extent she has had to cease work while the Director is away. I accept that there is no evidence that this work is in fact paid. Ms Perez is held in high regard by the Director of that real estate business, who described her as having a high level of expertise and competence and as displaying professionalism. Of particular relevance is Ms Golan's opinion that Ms Perez had demonstrated all the skills and competencies required of a licence holder.
9. I am not satisfied that Ms Perez intended to abandon working in the real estate industry or that she chose not to work, but rather, that the effect of her doctor's advice that she isolate during the Covid pandemic is the reason that she was unable to continue working in the industry for the period from March 2020 until about November 2022. She has demonstrated her commitment to continuing in the industry by obtaining a certificate of registration and continuing to work, likely on an unpaid basis, at Gefen group.

Extension of the period for restoration of licence - section 25A

1. At the conclusion of the hearing, I set a timetable for the parties to provide any submissions on the following previous decisions of the Tribunal:

• Kutup v Commissioner for Fair Trading [2021] NSWCATOD 131
• King-Orsborn v Commissioner for Fair Trading [2022] NSWCATOD 1
• Cremer v Commissioner for Fair Trading [2022] NSWCATOD 173
• O'Loughlin v Commissioner for Fair Trading [2022] NSWCATOD 168

1. I did this as I considered these cases might be relevant to the question of whether I should exercise the discretion to extend the period for application for restoration of the licence under section 25A of the Property and Stock Agents Act 2002.
2. Section 25A of the Property and Stock Agents Act 2002 is set out above at [14]. The section gives the Commissioner (or in this case, the Tribunal) a discretion to extend the period for the application for restoration of a licence beyond three months if the Commissioner is satisfied that:

• the failure to apply for renewal before the licence expired was due to inadvertence; or
• it is just and equitable to restore the licence

1. It should be noted that the above two bases for extending the period for the making of the restoration application are not the only reasons the Commissioner can extend the period. This is because of the wording of subsection 25A(2), which reads: "Without limiting subsection (1)(b)".

Inadvertence - section 25A(2)(a)

1. Standing in the shoes of the Commissioner on administrative review, I considered whether the period for making the restoration application should be extended on the basis of inadvertence.
2. The evidence before me does not lead to a finding that Ms Perez failed to apply for renewal of her licence before the licence expired due to inadvertence. I accept that Ms Perez chose not to renew her licence because of the circumstances she was confronted with. She was unable to leave the house because of a health condition and the advice of her doctor. The result of this was that Ms Perez could not afford to renew her licence as she was not working and under financial strain.

Just and equitable - section 25A(2)(b)

1. I turn to whether it is just and equitable to restore Ms Perez's licence in circumstances where she failed to apply for renewal of the licence within 3 months of expiry of the licence: refer to section 25A(2)(b) of the Property and Stock Agents Act 2002.
2. The Commissioner relied on the case of O'Loughlin v Commissioner for Fair Trading [2022] NSWCATAD 281, a case involving the application of a provision in the Home Building Act 1989 similar to section 25A of the Property and Stock Agents Act 2002. In that case Mr O'Loughlin did not renew his licence because he experienced medical "issues", undergoing a quadruple bypass, a knee replacement and an ankle reconstruction. He also experienced financial difficulties from the Global Financial Crisis and was not able to pay the licence fees. However, the Tribunal was not satisfied that it would be just and equitable to restore the licence particularly because there was a significant amount of time, more than eight years, from the expiry of the licence to when Mr O'Loughlin applied for a new licence.
3. The meaning of the phrase "just and equitable" has been discussed in many other cases. The Appeal Panel in the case of King-Orsborn v Commissioner for Fair Trading (cited above at [68]) made reference to Nyunt v North Shore Homes Pty Ltd [2020] NSWCATAP 143 where the Appeal Panel said (at [70]-[71]): 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."
4. In O'Loughlin, the Tribunal referred to judicial authority about the meaning of the phrase "just and equitable" (at [39]). In order to determine what is just and equitable, a decision-maker is to examine "a range of potentially competing considerations" (citing Stanford v Stanford (2012) 247 CLR 108 at [36]) and determine the question in a "principled way" by considering of all the relevant circumstances as "revealed by the statutory purposes and text" (citing The Concept Developer Pty Ltd v Conroy [2015] VSC 464 at [50]).
5. In Cremer v Commissioner for Fair Trading [2022] NSWCATOD 173, the Tribunal described the statutory purpose of the Property and Stock Agents Act 2002 in the following terms: "to regulate 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" (at [45]).
6. I also considered the Second Reading Speech in the Legislative Assembly in relation to the Property, Stock and Business Agents Amendment (Property Industry Reform) Bill 2017 (Legislative Assembly Hansard, 21 November 2017) which formed part of the reform measures which ultimately came into effect in March 2020. In that speech Minister Kean referred to "enhanced training and educational measures" and that as a result of the reforms new entrants into the industry would need to complete three additional competency units from the Certificate IV qualification to gain their certificate of registration. New licence applicants would also need 12 months' industry experience and to demonstrate they have attained certain competencies. He then said: The additional training units will improve the knowledge of people who are just starting out in the industry. The reforms to continuing professional development will also create a clear path for certificate holders to progress to a full licence within three to four years. He went on to say: The qualifications and specific competency units to be required for the new licensing framework will be the subject of close industry consultation in coming months.
7. The changes to the required qualifications and experience for the new three-tier licensing system ultimately came into effect with the commencement of the Property and Stock Agents (Qualifications) Order 2019 on 23 March 2020. I accept these changes where part of a package of reforms designed to improve the education and professional standards within the real estate industry. One aspect of the changes in March 2020 was the introduction of a new requirement that to gain a class 2 licence a person will need to have 12 months' industry experience as a holder of a certificate or registration.
8. Ms Robosa placed particular emphasis on the fact that Ms Perez did not have that level of experience. She said that Ms Perez had not used her licence at all.
9. However, under the licensing system prior to March 2020, there was no requirement that a licence holder use their licence: refer to Kutup v Commissioner for Fair Trading [2021] NSWCATOD 131 at [42].
10. I agree that one of the purposes of the Property and Stock Agents Act 2002 and the associated regime including the 2019 Order is consumer protection. The NSW Parliament has enacted this statutory regime in order to regulate the real estate industry, including to ensure there is a "high level of professionalism and qualification" as the Tribunal stated in Cremer v Commissioner for Fair Trading [2022] NSWCATOD 173 at [45]. This is achieved by ensuring that the licensing requirements, including the required qualifications, experience and training are met by those seeking to work in the industry at one of the three levels in what is now a three-tier licensing system.
11. In the context of this statutory purpose, I consider the following to be relevant circumstances to be weighed in determining the question of whether it would be just and equitable to restore Ms Perez's licence.
12. Firstly, Ms Perez did not renew her licence until 21 November 2022, that is 21 months after it expired. Ordinarily the period for seeking restoration of the licence is three months from expiry, which means she a further one and a half years beyond that when she applied for restoration of her licence. If Ms Perez had made an application for a new licence on or before 12 February 2022 she would have met the qualification requirements for the new licence under Pathway 1 (clause 18(2) of the 2019 Order) as she would have held a class 2 licence within 12 months of making the renewal application.
13. Secondly, Ms Perez was unable to work by virtue of her autoimmune condition and the risks that arose which required her to isolate at home for the period of March 2020 until about November 2022. This had a direct impact on her capacity to pay for the renewal fee. The effect of the doctor's advice was that Ms Perez lost the opportunity to work as a real estate agent utilising her class 2 agent - real estate - sales or leasing licence over the period March 2020 to 13 February 2021. If the situation of Ms Perez's autoimmune condition and the Covid pandemic had not arisen, it is likely that Ms Perez would have renewed her licence.
14. Thirdly, the course Ms Perez undertook to gain her qualifications under the old system is no longer listed and the 2019 Order refers to the Certificate IV in Real Estate Practice (CPP41419) (clause 24). A new requirement of undertaking 12 months' work experience has also been introduced for certificate of registration holders in order to qualify for a class 2 licence (Pathway 1 in clause 18(2) of the 2019 Order).
15. Fourthly, Ms Perez has limited experience in the real estate industry, and has not worked on a paid basis as a real estate agent. She has resumed working at Gefen Group following the issue of a certificate of registration in February 2023, but it is not clear what the extent of her duties have been, whether this work has been paid and how this work has been impacted by the licensee being away. The Director, Mr Golan commended Ms Perez for her expertise, competence, professionalism and dedication and expressed the view that she had demonstrated the necessary skills and competencies required of a holder of a real estate licence. Mr Golan refers in his letter to "the limitations imposed by [Ms Perez's] current certificate of registration". Ms Perez's uncontested evidence was that she missed a job opportunity with this real estate business if she had her class 2 licence.
16. Fifthly, in order to meet the requirements of 2019 Order Ms Perez would now need to hold her certificate of registration for 12 months, that is to 22 February 2024. She would also need to meet the new class 2 work experience requirements during that period. Her Certificate IV in Property Services (Real Estate) (CPP40307) is not now accepted and she may need to now complete a Certificate IV in Real Estate Practice (CPP41419), despite having completed her studies in 2019. It is not clear to what extent, Ms Perez's prior Certificate IV studies would be recognised, if at all. I note that under the transitional provision in the 2019 Order, a person's licence could have expired for up to 5 years before 24 March 2020, which is the date of commencement of the Property, Stock and Business Agents Amendment (Property Industry Reform) Act 2018, and yet if that licence had been held for more than two years the person has the qualifications required for the issue of a class 2 licence.
17. Sixthly, if I were to exercise the discretion to extent the period for the restoration application and to grant the licence, Ms Perez, despite not satisfying the requirements under the 2019 Order, would receive her licence. She would not be treated the same as a person with a certificate of registration who seeks to obtain their class 2 real estate licence now, particularly as she would not have to meet the 12 months work experience component (required under Pathway 2 in clause 18(3) of the 2019 Order).
18. In weighing up these considerations I come to the following conclusions. I do not think that one year and nine months (that is, 21 months) is a significant period of delay from date the licence expired to the date of the application for restoration in circumstances where Ms Perez could not work given her doctor's advice that she remain isolated at home during the Covid pandemic and could not afford to pay for renewal or restoration of her licence due to significant financial strain. Granting her the licence would mean that she will not have to complete the requirement that she hold the certificate of registration for the full 12 months and she would also not need to complete the class 2 experience requirements during a 12 month period. She would not need to comply with the requirement to undertake the Certificate IV in Real Estate Practice (CPP41419) course. I agree with Ms Perez that in the circumstances, to require her to meet those requirements would place a considerable burden on her in the circumstances. Whilst she has not worked in a paid position in the real estate industry, from March 2020 until about November 2022 she was unable to do so because of doctor's advice. After that period she has not been able to obtain her licence and missed a job opportunity as a class 2 licenced agent as a result. She has taken steps to obtain a certificate of registration and has worked in the industry on an unpaid basis and within the restrictions imposed on her by the fact that she has a certificate of registration. The Director of the business is of the opinion that she has demonstrated the skills and competencies required of a licence holder. Having considered all of these factors, I am satisfied that it is just and equitable to restore the licence.
19. Ms Robosa in written submissions argued that one reason it would not be just an equitable to restore the licence is that the effect of section 25A(5) of the Property and Stock Agents Act 2002 is that Ms Perez's licence would be restored on and from 13 February 2021, despite Ms Perez not "carrying out real estate work or paying licence fees during that time". That is the effect of that provision. I reject that argument and follow the reasoning of the Tribunal in Kutup v Commissioner for Fair Trading [2021] NSWCATOD 131 that there was in fact no obligation on a licence holder to in fact utilise their licence ([42]) and the Act allows for that backdating to the date the licence expired without the payment of licence fees during the relevant period.

CONCLUSIONS AND ORDERS

1. I am satisfied that it is just and equitable to restore the licence and that the period for application for the restoration of the licence should be extended to 21 November 2022.
2. The decision of the Commissioner to refuse Ms Perez a licence pursuant to the application for restoration is set aside. In substitution, Ms Perez is granted a class 2 real estate agent licence with a real estate agent restriction condition from 13 February 2021, by virtue of the operation of section 25A(5) of the Property and Stock Agents Act 2002. 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: 01 December 2023