EVANS and SETTLEMENT AGENTS SUPERVISORY BOARD - [2008] WASAT 121

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: SETTLEMENT AGENTS ACT 1981 (WA)

CITATION: EVANS and SETTLEMENT AGENTS SUPERVISORY BOARD [2008] WASAT 121

MEMBER: JUSTICE M L BARKER (PRESIDENT)
MR R LEDGER (SENIOR SESSIONAL MEMBER)
MS J TOOMER (SESSIONAL MEMBER)

HEARD: 14 MAY 2008

DELIVERED : 28 MAY 2008

FILE NO/S: VR 73 of 2008

BETWEEN: DAVID GLYNDWR EVANS
Applicant
AND
SETTLEMENT AGENTS SUPERVISORY BOARD
Respondent

Catchwords:

Vocational regulation - Settlement agents - Renewal of triennial certificate - Power to conduct inquiry - Consideration of factors governing initial grant of license in s 27(1)

Legislation:

Real Estate and Business Agents Act 1978 (WA), s 27, s 28, s 29, s 30, s 31
Real Estate and Business Agents Amendment Act 1998 (WA), s 10
Settlement Agents Act 1981 (WA), s 25 , s 26, s 27, s 29, s 30, s 31, s 31A, s 32, s 33, s 34, s 34A, s 83, s 84, s 85, s 114, Pt III, Pt IV, Schedule 1
State Administrative Tribunal Act 2004 (WA), s 29, s 87

Result:

Application allowed
Decision refusing renewal of triennial certificate set aside
Board to grant triennial certificate

Category: A

Representation:

Counsel:

Applicant: Ms CH Thompson
Respondent: Mr S O'Sullivan

Solicitors:

Applicant: Nielsen and Co
Respondent: Settlement Agents Supervisory Board

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

In September 2006 the applicant settlement agent lodged an application for renewal of his triennial certificate. In December 2006 the Settlement Agents Supervisory Board conducted a hearing to inquire whether the applicant satisfied the licensing requirements of s 27(1) of the Settlement Agents Act 1981 (WA). In February 2008 the Board refused the certificate renewal application.
The Tribunal found that the Board was not entitled to consider whether or not a triennial certificate should be renewed having regard to whether an applicant can satisfy the factors in s 27(1) that governed the initial grant of a licence. The applicant, having lodged his signed application and paid the prescribed fee, was entitled to have his triennial certificate renewed.

Issue

The primary issue for determination in this proceeding is whether the Settlement Agents Supervisory Board (Board) has the power under s 31 of the Settlement Agents Act 1981 (WA) (SA Act) to refuse the renewal of a triennial certificate to a person who holds a real estate settlement agent's licence under the SA Act, by reference to any of the factors specified in s 27(1) of the SA Act that govern the grant of a real estate settlement agent's licence.

Facts

The following facts are not disputed by the parties.
On or about 22 September 2006, the Board received from David Glyndwr Evans, the applicant, an application for renewal of his triennial certificate issued under the SA Act, together with supporting documentation and the appropriate fee.
The applicant was, at the date of receipt of the application, a licensed real estate settlement agent whose then current triennial certificate expired on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] WASAT 121
Decision Date: 28 MAY 2008

CaseChat Overview and Summary

The case of Evans v Settlement Agents Supervisory Board involved a dispute regarding the refusal by the Settlement Agents Supervisory Board to renew the triennial certificate of David Glyndwr Evans. The matter was heard in the relevant Australian court, where the Board’s decision was subject to judicial review. The central issue before the court was whether the Board had acted lawfully and within its jurisdiction when it declined to renew Evans’ certificate, and whether the Board appropriately considered all relevant factors in its decision-making process.

The court examined the statutory framework governing the renewal of triennial certificates for settlement agents, specifically section 27(1) of the relevant legislation. This section mandates that certain factors be considered in the initial grant of a license, and the court needed to determine if these same considerations were relevant during the renewal process. The Board had argued that while the initial grant of a license required consideration of specific factors, the renewal of a certificate was a distinct process that could involve a more limited scope of considerations. The court was required to assess the Board's interpretation and application of the statutory provisions, as well as the procedural fairness in handling Evans' renewal application.

Upon review, the court found that the Board had failed to appropriately consider all relevant factors as required by section 27(1) during the renewal process. The Board’s decision-making process was deemed to be flawed because it did not sufficiently address the statutory obligations concerning the renewal of the certificate. The court concluded that the Board's failure to consider the mandated factors meant that the decision to refuse the renewal was not in accordance with the law. Consequently, the court allowed the review application, set aside the Board’s decision, and directed the Board to grant the applicant the triennial certificate in question, effective from a specified date. The court did not make any order regarding costs.

Orders

Orders of the court

(1) The review application is allowed. (2) The decision of the Settlement Agents Supervisory Board refusing to renew the triennial certificate of the applicant, David Glyndwr Evans, which decision was made on or about 27 February 2008, is set aside. (3) The Board is to grant the applicant the triennial certificate the subject of his application received by the Board on or about 22 September 2006 effective for a three year period commencing 1 November 2006. (4) No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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