• The actions of the administrator and the temporary manager appointed under this scheme are not reviewable by the Tribunal
• The Commissioner has a discretionary power to make decisions under section 16(1) and in doing so is not required to provide a land agent procedural fairness or undertake a procurement process
• The decision under review was correct and in keeping with the Act and there is no other relevant principle of law that would result in a different decision being made.

Administrative Review - Land Agents Act 1994 - Conduct of agent - Actions contrary to the Act or otherwise unlawful, improper or negligent in the conduct of business - Practice without registration

Administrative Review - Land Agents Act 1994 - Review of a decision by the Commissioner for Consumer Affairs - Appointment of Administrator

Administrative Review - Land Agents Act 1994 - Review of a decision by the Commissioner for Consumer Affairs - Appointment of Temporary Manager

Land Agents Act 1994 ss 4, 6, 6A, 6AB, 6B, 9, 10, 11, 11BA, 11C, 16, 17, 18, 20

South Australian Civil and Administrative Tribunal Act 2013 ss 34, 37

Kioa v West ([1985] HCA 81; 1985) 159 CLR 550

Shires v Commissioner for Consumer Affairs [2021] SACAT 79

Ms H Nikoloff and Ms V Montandon, Crown Solicitor's Office, for the respondent

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 37(1)(a)

1. This is the determination of an application made by Holly Shires pursuant to s 34 of the South Australian Civil and Administrative Tribunal Act 2013 (the SACAT Act), for review of two decisions of the Commissioner for Consumer Affairs (the Commissioner) made on 30 March 2021. The decisions were to appoint both an administrator and a temporary manager in respect of Ms Shires' trust account and for the conduct of her business, Mount Barker Property Management, pursuant to ss 16 and 17 of the Land Agents Act 1994 (the Act).

2. There have been several directions hearings conducted by the Tribunal to prepare this matter for a full hearing. Ms Shires has participated in these hearings by telephone, and at the most recent directions hearing she was represented by counsel. However Ms Shires' lawyers have subsequently advised the Tribunal they are no longer able to act on her behalf.

3. Shortly prior to the date of this hearing Ms Shires contacted the Tribunal Registry and advised she would not attend the hearing of her application in this matter as she was "banned from the Tribunal".

4. At the commencement of this hearing I rang Ms Shires' mobile phone but the telephone message indicated she was on another call and so unavailable. I left a message advising that the hearing was about to commence and inviting her to participate by telephone, and to contact the Tribunal Registry and she would be put through to the hearing room and would be able to participate by telephone. Ms Shires did not respond to this message and did not contact the Registry.

5. The hearing proceeded in her absence and I heard submissions from Ms Nikoloff on behalf of the Commissioner. I am satisfied Ms Shires has had appropriate notice of this hearing and has been provided with every opportunity to participate in the hearing.

6. Ms Shires has asserted in communications with the Tribunal and others that she has been "banned from SACAT". This is not the case and this has been reiterated to her on each occasion she has asserted this. It appears Ms Shires is confusing her right to proceed before the Tribunal in relation to matters where she is an applicant or other party, with matters where she has attempted to engage with proceedings before the Tribunal concerning matters which involve her business, Mount Barker Property Management.

7. In relation to matters (such as this matter) before the Tribunal where she is a party in her own right (an applicant pursuing her personal interests), Ms Shires has every right to attend and participate in Tribunal proceedings. There has been no order made (or considered) to exclude her from doing so. Ms Shires is mistaken in her assertion or understanding that this is the case.

8. Ms Shires formerly operated a business, Mount Barker Property Management, holding registration as a land agent pursuant to the Act. However on 23 February 2021 Ms Shires' registration as a land agent was cancelled due to her failure to lodge her annual return and fee in time. Subsequent to that the Commissioner made the decisions the subject of this review.

9. Once Ms Shires' registration as a land agent was cancelled, she no longer had any entitlement to represent her former clients in matters before the Tribunal (for example in applications made pursuant to the Residential Tenancies Act 1995). Accordingly, in matters before the Tribunal concerning tenancies which she had formerly managed as a land agent, Ms Shires no longer had any right of appearance and could not engage in those proceedings because she was no longer a land agent registered under the Act.

10. Ms Shires was not "banned from SACAT", but because of the cancellation of her registration no longer had a right to commence, defend or engage in such proceedings as an agent before SACAT. She retains her right to commence, defend or engage on proceedings before SACAT where she was involved in such proceedings on her own account, as in this matter.

11. Ms Shires was initially registered as a land agent under the Act from 2 June 2015.

12. On 1 October 2020 the Commissioner issued a Notice to Show Cause to Ms Shires, informing her he was concerned she may not be a fit and proper person to be registered as an agent. These concerns related to Ms Shires' trust account and a recent (July 2020) conviction in the Environment, Resources and Development Court. Ms Shires responded to this Notice on 29 October 2020.

13. On 23 February 2021 Ms Shires' registration as a land agent was cancelled administratively as she had failed to lodge her annual return and fee within time. This administrative cancellation was not related to the matters raised in the Show Cause Notice. Accordingly from that time Ms Shires was not registered as a land agent under the Act.

14. On 30 March 2021 the Commissioner appointed Bentleys (SA) Pty Ltd (the Administrator) as administrator of the trust accounts of Ms Shires' business, Mount Barker Property Management, pursuant to s 16 of the Act. On the same day the Commissioner appointed Anthony Coleman trading as Coleman Property Adelaide Hills (the Temporary Manager) as temporary manager of Ms Shires' business, pursuant to s 17 of the Act, to transact any urgent and incomplete business.

15. These appointments were made by the Commissioner as a consequence of Ms Shires having ceased to hold registration as a land agent under the Act, the Commissioner having received information that she had acted contrary to the Act or otherwise unlawfully or improperly or negligently in the conduct of this business (that is, continuing to act as a land agent when not holding registration under the Act).

16. On 2 April 2021 Ms Shires lodged an application for registration as a land agent. This application was refused on 23 April 2021 on the ground that Ms Shires was not a fit and proper person to be registered as an agent. Ms Shires sought review of this decision before this Tribunal.

17. The Tribunal considered this application in matter 2021/SA001307 and on 30 October 2021, following a hearing on 13 October 2021 in which Ms Shires did participate, affirmed the Commissioner's decision (see [2021] SACAT 79). Ms Shires has lodged an appeal in relation to this decision, but I note and take into account the reasons and findings of Member Ward in her decision in this matter where they are relevant to this matter presently before the Tribunal. The appeal has not yet been heard.

18. Ms Shires did not attend or participate in the hearing but she was provided with the respondent's written outline of argument. The evening prior to the hearing she provided a written outline of her own submissions, as well as some further documentation. Ms Shires submits that the appointments made by the Commissioner should be set aside.

19. In her written outline Ms Shires states that the appointments of the Administrator and the Temporary Manager to her business were made without her knowledge and without providing her with procedural fairness. She asserts the appointments were made without an adequate procurement process which failed to consider any other Administrator than. that appointed, and also failed to consider actual and potential conflicts of interest in the appointment of the Temporary Manager.

20. In addition Mr Shires states that the duties required of Mr Coleman as Temporary Manager have not been and cannot be properly performed by him in circumstances where he has sought and obtained an intervention order against Ms Shires, and she further asserts Mr Coleman has delegated his functions as Temporary Manager improperly.

21. In her written submissions, although she initially referred to her registration as a land agent being "purportedly administratively cancelled", she later specifically concedes that she is not now registered as a land agent, and that the Commissioner therefore had a discretionary power to appoint an administrator and temporary manager pursuant to ss 16(1)(a) and 17(1) of the Act.

22. Ms Shires submits that the appointment of an administrator and a temporary manager to her business had the potential to impact on her interests through both economic and reputational loss, but she was not informed the appointments would be made and had no opportunity to be heard in relation to the appointments. Ms Shires submitted that the Commissioner had an obligation to provide her procedural fairness in the making of the appointments, but this was denied to her.

23. In addition, Ms Shires asserts there was no proper procurement process in the selection of the Administrator, and no alternative administrator was considered. She asserts that the appointment of the Temporary Manager was made following contact with only three businesses in the area and making inquiries of their availability and rates. She states that there was no evidence of the criteria relevant to the selection of the appointees, or whether there were any inquiries concerning conflict of interest or whether the appointments might cause any detriment to Ms Shires.

24. Ms Shires asserted that Mr Coleman's role as Temporary Manager is in conflict with his own business dealings, and that he has performed his role as temporary manager in a manner which has not been in Ms Shires' interests. Further, she asserted that Mr Coleman had sought and obtained an intervention order against Ms Shires, so it is very difficult for Ms Shires to communicate with him to assist him in his role as Temporary manager of her business.

25. Ms Nikoloff submitted that he Commissioner's decision should be affirmed by the Tribunal as both correct and preferable.

26. Ms Nikoloff submitted the Commissioner properly exercised his discretionary power pursuant to ss 16 and 17 of the Act in making the appointments of Administrator and Temporary Manager to Ms Shires' business. She submitted that the Commissioner was empowered by the cancellation of Ms Shires' registration as an agent on 23 February 2021 on her failure to comply with the requirements of the Act to lodge her annual return and pay fees. She submitted there was no requirement for the Commissioner to consult with Ms Shires prior to or concerning the appointments, as ss 16 and 17 of the Act afford the Commissioner complete discretion as to the method of appointment, with no requirements for the appointees to possess any particular attributes or qualifications, or any other considerations for the Commissioner to take into account.

27. Ms Nikoloff agreed Ms Shires had not been consulted concerning the appointments, but she submitted there was no duty on the Commissioner to afford Ms Shires such a right. She submitted that once Ms Shires was no longer registered as an agent under the Act she was required by the Act to cease her business as an agent, and if she did not so she was committing a criminal offence (see s 6(1) of the Act). She submitted that the Commissioner was required to act in the public interest in appointing persons to undertake Ms Shires' outstanding business, for the protection of those who had contractual relations with her. She submitted that the Commissioner's obligation was not to act in Ms Shires' interests, but in the interests of the public.

28. Ms Nikoloff submitted that the common law duty in making administrative decisions to act fairly to those whose rights would be affected was displaced by the clear intentions of the Act: she indicated the explicit requirements in ss 16(3) and 17(2) for the Commissioner to give notice of the appointments to the agent (and others) only after the appointments have been made. In addition, Ms Nikoloff submitted that Ms Shires had not identified any interests or legitimate expectations interfered with by the decisions: she had no right to exercise any powers concerning her business, so she had no interests or functions which would be affected.

29. Ms Nikoloff submitted that there was no "procurement process" required by the Act, as suggested in Ms Shires' submission. She told the Tribunal the appointments did not constitute a commercial process, but were designed to protect the public. She indicated that ss 16 and 17 of the Act did not set out any process for the appointments, but leaves this entirely to the Commissioner, who has a completely general discretion to appoint.

30. Ms Nikoloff also addressed some of Ms Shires' specific allegations concerning the actions of the appointees.

31. Ms Shires asserted that Mr Coleman had a conflict of interest and so should not have been appointed as Temporary Manager. Ms Nikoloff told the Tribunal no specific conflict of interest had been identified by Ms Shires other than that he was a land agent practicing in the same geographical area as Ms Shires' business had operated in. However Ms Nikoloff submitted all land agents are competitors with each other, as there is no geographical restriction on their operations.

32. Ms Nikoloff said there had been no evidence provided of any conflict of interest, and it was the fact that Mr Coleman was a land agent which made him appropriate to undertake the role of Temporary Manager.

33. Ms Nikoloff also addressed some of Ms Shires' specific assertions of inappropriate conduct, and the documents which she filed with her written submission.

34. Ms Nikoloff told the Tribunal the Administrator had, as Ms Shires identified, opened a new trust account in the name of the administrator's business. Ms Nikoloff explained this was necessary in order to ensure the money in Ms Shires' trust account at the commencement of the appointment was quarantined so that it would be possible to reconstruct Ms Shires' trust account to determine if there were any irregularities. Any money received by the Administrator or Temporary Manager was required to be deposited into a trust account in the name of the recipient.

35. Ms Shires alleged the Temporary Manager had refused to execute new agreements she had entered into. Ms Nikoloff told the Tribunal there was no evidence of any such agreements and the Commissioner was unaware of any such agreements, and Ms Shires had been advised she was not permitted to enter any new agreements.

36. Ms Nikoloff told the Tribunal an Intervention Order was taken out against Ms Shires by Mr Coleman on 13 May 2021 and confirmed on 2 September 2021. The Intervention Order is discussed by Member Ward in her reasons for decision in the matter 2021/SA001307 ([2021] SACAT 79). Member Ward sets out in some detail the matters and events which were before the Magistrate when the Order was made. These were not denied by Ms Shires in the Magistrates Court. Ms Nikoloff submitted that the Intervention Order reflected on Ms Shires, not on Mr Coleman, the Temporary Manager. She told the Tribunal his obligation is to contact and liaise with clients of the business, not in collaboration or partnership with Ms Shires as the former land agent. Not only was there no requirement for Ms Shires to be in contact with the Administrator or Temporary Manager, but it was inappropriate for her to do so. She told the Tribunal it was Ms Shires' refusal to cease acting as a land agent and her constant inappropriate contact which led to problems with the Administrator and the Intervention Order. The Intervention Order only arose out of Ms Shires' conduct after the appointments, and was made after the appointments.

37. Ms Shires also asserted that Mr Coleman had inappropriately, and perhaps unlawfully, delegated matters to his employees. Ms Nikoloff submitted there was nothing in the Act concerning delegation, and no prohibition on the use of employees to assist in the administration or management of the business. Using staff to assist with work is not in any event the same as delegation, and the powers are not being exercised by another person as a delegate of the powers.

38. Ms Nikoloff conceded Ms Shires has made three complaints concerning members of Mr Coleman's staff in the management of the business. She said the complaints have been investigated by the Commissioner and have not been upheld, as there was no substantial evidence to support the complaints.

39. Section 34 of the SACAT Act provides that the Tribunal has jurisdiction to deal with a matter that ... involves a review of a decision. An application to review a decision comes within the Tribunal's review jurisdiction, and the Tribunal is required to examine the decision under review by way of a re-hearing (see s 34(3) of the SACAT Act), and must reach the correct or preferable decision, having regard to and giving appropriate weight to the decision of the original decision-maker (see s 34(4) of the SACAT Act). The Tribunal in conducting a review of a decision and exercising those powers is taken to be standing in the shoes of the original decision-maker, but may also have reference to additional relevant evidence and submissions, as the review is by way of a rehearing. The Tribunal has jurisdiction to review decisions made pursuant to this Act by virtue of s 20(1) of the Act.

40. In reviewing the Commissioner's decision in this matter, the Tribunal has before it the s 35 Book of Documents, comprising the material before the Commissioner when the decisions were made; two Supplementary Books of Documents filed by the Respondent, including some documents not before the Commissioner when the decisions were made; a significant amount of additional material filed by Ms Shires; and written submissions from both the applicant and the respondent. Ms Shires' written submission was accompanied by some further documentation. In addition I heard oral submissions from Ms Nikoloff for the respondent. I take all this material into account, and I accept into evidence the additional material provided by Ms Shires. The relevance of some of this material was not immediately clear and Ms Shires was not available to explain the issue of relevance, and it was not all of assistance to the Tribunal.

41. Ms Shires conceded in her written submissions that she is not now registered as a land agent under the Act, and on this basis accepted that the Commissioner had a discretionary power to appoint an administrator and temporary manager pursuant to ss 16(1)(a) and 17(1) of the Act. Accordingly the aspect of the Commissioner's decisions presently before the Tribunal is not the cancellation of her registration as a consequence of her failure to lodge her annual return and relevant fee, or the Commissioner's authority to make the appointments in question, but rather the selection of the recipients of the appointments, and the way in which the appointments were being conducted by the appointees.

42. Ms Shires had two principal arguments: first that she had not been accorded procedural fairness in the making of the appointments, in that she had not been informed or consulted about the appointments; and then that the appointees were inappropriate for a variety of reasons, were not conducting their functions appropriately, and were not able to do so.

43. The Act establishes a registration and disciplinary scheme in relation to land agents, sales representatives and property managers, and mandates requirements for the management and audit of trust accounts and maintenance of associated records.

44. "Agent" is defined in s 4 of the Act as a person who carries on a business that consists of or involves selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose... . The Act requires agents, sales representatives, property managers and auctioneers to be registered (see ss 6, 6A, 6AB and 6B of the Act respectively). The Act provides for the means and qualifications for registration in each case. The Act provides that a registered agent's place of business must be properly managed and supervised by a registered agent (see ss 10 and 11 of the Act).

A registered person must, each year not later than the date fixed by regulation -

(a) pay the Commissioner the fee fixed by regulation; and

(b) lodge with the Commissioner a return in the manner and form required by the Commissioner.

(3) Where a person fails to pay the annual fee or lodge the annual return in accordance with subsection (2), the Commissioner may, by notice in writing, require the person to make good the default.

(4) Where the person fails to comply with the notice within 28 days after the service of the notice, the person's registration is cancelled.

47. Sections 11BA and 11C provide that in defined circumstances the Commissioner may cancel or suspend registration, or impose conditions upon registration.

48. Part 3 of the Act deals with the management of trust accounts required to be held by an agent who receives trust money.

49. Section 16 of the Act is relevantly as follows:

(1) If the Commissioner knows or suspects on reasonable grounds that an agent -

(a) is not registered as required by law

...

the Commissioner may appoint a person to administer the agent's trust account.

...

(3) The Commissioner must, as soon as practicable after appointing an administrator, give notice in writing of the appointment to -

(a) the agent

(1) Where an administrator is appointed under this Division, the Commissioner may appoint that person or some other person to be temporary manager to transact any urgent or uncompleted business of the agent.

(2) The Commissioner must, as soon as practicable after appointing the temporary manager, give notice of the appointment to the agent.

51. Section 18 sets out the powers of the administrator and temporary manager, and s 19 provides that the administrator and temporary manager appointments will remain in force for a period of 12 months unless sooner terminated by the Commissioner, and that the administrator may be reappointment.

52. Section 20 provides that an agent may seek a review by this Tribunal of the appointment of an administrator or temporary manager.

53. Ms Shires has conceded that her registration as a land agent was administratively cancelled pursuant to s 9(4) of the Act, and I am satisfied this is the case. I note that Ms Shires' registration under the Act has not been renewed, relying on the decision of Member Ward in [2021] SACAT 79, where she affirmed the decision of the Commissioner to refuse Ms Shires' application for registration on the ground she is not a fit and proper person to be so registered.

54. Ms Shires also conceded, and I accept, this means that the Commissioner had the power, pursuant to ss 16 and 17 of the Act, to appoint an administrator and a temporary manager to Ms Shires' business.

55. Ms Shires' submission is that the process for making the appointments was inappropriate; and further, that the actual appointees were inappropriate, and therefore the decisions concerning the appointments were neither correct nor preferable. In addition, Ms Shires argued that the manner in which the appointees were carrying out their statutory functions was contrary to the Act.

56. Section 20 of the Act enables an agent to "seek a review of the appointment" of an administrator or temporary manager in this Tribunal.

57. I am satisfied s 20 (in conjunction with s 34 of the SACAT Act) empowers the Tribunal to review the decisions made by the Commissioner pursuant to ss 16 and 17 of the Act, in the sense the Tribunal may inquire as to whether the prerequisites for the exercise of the powers in those sections were in place at the relevant time, and whether the Commissioner undertook the steps set out in those sections following the appointments. I am satisfied the review of the Commissioner's decision in this respect extends to considering and reviewing the process of the appointments, including whether Commission was required to provide procedural fairness to an agent in the appointments, and if so, whether this occurred.

58. I am also satisfied the Tribunal, in the process of such review, can consider if there is anything in the identity of the appointees which might make the decisions concerning appointments, either not correct or not preferable. For example, if the Commissioner appointed a person as temporary manager who was not themselves registered as an agent under the Act, such a decision would raise the question of whether the appointment was correct or preferable given the provisions of the Act requiring that the agent's business must be managed and supervised by a registered agent (see ss 10 and 11), and that the function of the temporary manager is to transact any urgent or uncompleted business of the agent (s 17(1) of the Act), for which registration as an agent is required by the Act (see s 6 of the Act).

59. In addition, I am satisfied that s 34 of the SACAT Act enables the Tribunal in the exercise of the very broad merits review process set out in that section supports this position. On this basis I am satisfied the Tribunal may review these aspects of the Commissioner's decisions.

60. However, I am not satisfied that the final aspect of Ms Shires' application comes within the Tribunal's jurisdiction.

61. Ms Shires submitted the Tribunal should review the actions of both the Administrator and the Temporary Manager (Mr Coleman personally, in particular), to consider if their actions and conduct subsequent to their appointments were within the terms of the Act or otherwise proper. I do not accept the Tribunal has any jurisdiction pursuant to either s 20 of the Act or s 34 of the SACAT Act, to do this. Those sections empower the Tribunal to review the appointments themselves, not the actions taken by the appointees in the performance of their duties in the appointed positions following the appointments.

Ms Shires' circumstances and her property management business

62. Accordingly, the decisions before the Tribunal for review are the decisions of the Commissioner made on 30 March 2021, to appoint an Administrator and a Temporary Manager to Ms Shires' business. This review will consider if the Commissioner had the power to make the appointments in a general sense; and also whether these particular appointments were properly made. The review does not extend to any consideration of the actions of the appointed persons subsequent to their appointments. The Tribunal's review is limited to the decisions made by the Commissioner, pursuant to ss 16 and 17 of the Act, not to actions taken in the course of performing those appointments.

63. I am satisfied the Commissioner had the authority to make these appointments pursuant to ss 16 and 17 of the Act.

64. Section 16(1)(a) of the Act provides that the Commissioner may appoint a person to administer an agent's trust account, if, among other circumstances, an agent is not registered as required by law. Ms Shires' registration under the Act had been administratively cancelled on 23 February 2021, pursuant to s 9(4) of the Act. Accordingly, the Commissioner had a discretionary power to appoint an administrator.

65. Once an administrator is appointed, the Commissioner also has a discretionary power to appoint a temporary manager to transact any urgent or uncompleted business of the agent. Accordingly it is clear the Commissioner likewise had power to make this further appointment pursuant to s 17(1) of the Act.

66. On this basis I am satisfied the Commissioner had the power to make the appointments comprised in the decisions under review. The following question is whether the exercise of that discretionary power in the particular appointments made, a correct or preferable decision in each case.

67. I accept that the Commissioner had appropriate communications with both the Administrator and the Temporary Manager prior to the appointments, and this is clear from the material provided in the s 35 documents. The Commissioner then executed Instruments of appointment in relation to both appointments, setting out the statutory bases of the appointments, and then gave Ms Shires notice of the appointments in writing as required by s 16(3)(a) and s 17(2) of the Act.

68. In the selection of the persons to be appointed as administrator and temporary manager, I note there is nothing in either s 16 or s 17 of the Act which places restrictions on the Commissioner's discretion. It may be that a consideration of appropriate professional qualifications is an implicit aspect of the exercise of the discretion, in particular in that the persons appointed are required to carry out functions under the Act for which some qualifications or experience is generally required (in particular considering the requirements of ss 10, and 11 of the Act that the business and place of business of the agent must be "managed and supervised by a registered agent who is a natural person"). However, there are no qualifications required under the Act, and no "procurement process" established or suggested.

69. I note that the Administrator appointed was a professional accounting firm, and the Temporary Manager appointed was an experienced registered land agent. I note too that the Commissioner has significant experience in the administration of the Act and I take this into account in considering the weight to be accorded to the decisions, pursuant to s 34(4) of the SACAT Act.

70. I do not accept Ms Shires' submission that the appointment of Mr Coleman as Temporary Manager was improper because Mr Coleman was, on her assertion, in a position of conflict of interest as in competition with Ms Shires. I accept Ms Nikoloff's position that all other registered agents are effectively in competition with Ms Shires' business, and this is not determined by geographical proximity, given the nature of the business. I am satisfied that Mr Coleman's registration as a land agent, and familiarity with the area, made him as suitable appointment, and Ms Shires has not provided any evidence of any conflict of interest.

71. Ms Shires submitted that the Commissioner's exercise of power in making the appointments was improper because she was not accorded procedural fairness in the making of the decisions, as she was not consulted concerning the appointments.

72. However, I am satisfied there is no requirement for procedural fairness to be accorded to Ms Shires in these circumstances.

73. It is a well-established general principle of Australian common law imposing a requirement of procedural fairness in respect of the making of administrative decisions where such a decision may affect a person's rights, interests or legitimate expectations (see Kioa v West [1985] HCA 81; (1985) 159 CLR 550, per Mason J at 584), subject only to the clear manifestation of a contrary statutory intention (see Mason J in Kioa v West, at page 584).

74. There are two questions to be considered here: did Ms Shires have rights, interests or legitimate expectations that might be impacted upon by the appointments? And further, is there any clear statutory manifestation to the contrary?

75. I am not satisfied that Ms Shires did have relevant rights, interests or legitimate expectations which would be impacted upon by the appointment decisions. By the time the decisions were in contemplation, Ms Shires was no longer a registered land agent, as her registration had been cancelled on 23 February 2021 following her failure to comply with requirements under the Act (see s 9(2) and (4) of the Act). She was not able to exercise any functions in relation to her business. At that time she no longer had rights and interests as a land agent, and her relevant legitimate expectation in this respect must have been limited to an expectation that appropriate action, that is, correct and preferable decisions, would be taken pursuant to the Act in the management of her former business, its trust account and any urgent or incomplete business.

76. In addition, I am satisfied that there is a "clear statutory manifestation" precluding any prior discussion or consultation with her which might be required by principles of procedural fairness. I note both s 16 and s 17 of the Act provide specifically that notices of the appointments are to be given after the appointments have been made, not before. I am satisfied these provisions (s 16(3) and s 17(2)) make it clear that the agent is not to be notified prior to the decision, and in my view those provisions are consistent with the purpose of these provisions to protect the public in circumstances where the agent is unable, or has failed, to address those interests (where the agent is no longer registered; has been guilty of fiduciary default in relation to trust money, or operated a trust account in an irregular manner; has acted contrary to the Act or unlawfully or improperly or negligently in the conduct of the business; has died or cannot be found, or is suffering from mental or physical incapacity; has ceased to carry on business as an agent; or has become bankrupt or insolvent). The public interest is not likely to be served by consulting the agent in such circumstances prior to the appointments required to address the deficiency, and this is reflected in the requirement to give notice of the appointments after they have been made.

77. Nor is there any provision in the Act requiring notice to be given in advance to the person whose business will be affected by the appointments. Clearly one of the issues in making the appointments is the protection of the trust account, and notice to the former agent may prejudice this. In addition, the role of the Temporary Manager is to address urgent outstanding business and incomplete matters in the former agent's business: consultations with the former agent are likely to delay such actions. I am satisfied the purpose of the appointments in the scheme of the Act does preclude notice to or consultation with the former agent, even if there were rights, interests or legitimate interests of the former agent which might be impacted.

78. Accordingly I am quite satisfied that failure to consult Ms Shires on appropriate appointees as Administrator and Temporary Manager does not impact on the lawfulness of the decisions, or, in terms of review under s 34 of the SACAT Act, its correctness.

79. Ms Shires' final submission concerning the appointment was that as there was an Intervention Order now in place preventing her from communicating with Mr Coleman and certain of his employees, this made Mr Coleman in inappropriate appointment as she was unable to consult with him concerning the operation of her business.

80. In my view this is an entirely irrelevant submission. In the first place, the intervention order was put in place well after the appointments were made. It was not in place prior to the appointment of the Temporary Manager, and so could not have been taken into account by the Commissioner in making the decision the subject of this review. In addition however, this submission entirely misunderstands the nature of the appointments made under the Act and the function of Mr Coleman as Temporary Manager. Mr Coleman is not appointed as Temporary Manager to act in Ms Shires' interests. He is not appointed to work collaboratively with her or to represent her, and she has no role at all in relation to her former business, as she is no longer a registered agent. The Intervention Order does indeed prevent her from working with Mr Coleman or contacting him, the business he is managing, or his employees, and a number of other circumstances set out in the Order, but these restrictions will have no impact on Mr Coleman's management of her former business.

81. The other issues raised by Ms Shires in relation to the conduct of the Administrator and Temporary Manager in the conduct of their roles are not considered further her as they do not relate to the appointments of the Administrator and Temporary Manager, which are the only issues before the Tribunal.

82. I am satisfied that the Commissioner's decisions in the appointment of the Administrator and the Temporary Manager to Ms Shires' former business are both correct and preferable decisions.

83. I am satisfied the prerequisites set out in s 16(1) of the Act existed so as to enliven the Commissioner's discretionary power to make these appointments, as Ms Shires was no longer registered pursuant to the Act from 23 February 2021. The Commissioner had the authority to make the decisions before the Tribunal.

84. I am satisfied that the Act does not prescribe any procurement process or establish any restrictions on the Commissioner in determining who to appoint as Administrator or Temporary Manager, so failure to adopt any particular process will not make the decisions incorrect. Further I am satisfied that the appointments made in this case were preferable decisions as well as correct decisions: the Administrator is an experienced professional accounting firm, and the Temporary Manager appointed is an experienced registered land agent. I am satisfied there is no evidence of any conflict of interest applicable in relation to either of these appointments. The Commissioner is experienced in the administration of the Act, and I take this into account, in particular in considering that the decisions are preferable as well as correct decisions.

85. I am satisfied there was no requirement in the Act or common law to provide Ms Shires with any opportunity to be aware of or to be consulted in relation to the appointments prior to the decisions being made, and the principles of procedural fairness related to administrative decision making do not apply in relation to these decisions. Accordingly failure to inform or consult with Ms Shires prior to the appointment does not affect the correctness of the decisions.

86. Finally, I am satisfied that none of the issues raised by Ms Shires concerning the conduct of the administration or temporary management of her former business are of no relevance to whether the decisions concerning the appointments are correct or preferable, or have been established by any evidence.

87. There is nothing in the submissions or evidence before the Tribunal which suggests that the decisions are not correct: they are authorised by the Act, and I am satisfied there is no other relevant principle of law which undermines the correctness of the decisions. In addition I am satisfied the decisions are the preferable decisions: they are made by an experienced administrator of the Act, and reflect the purposes and concerns of the Act in the protection of the public in the area of management of the interests of the public by land agents.

89. The Tribunal affirms the decision under review.