Spano v Business Licensing Authority - [2001] VSC 275

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8110 of 2000

VITO SPANO	Appellant
v
BUSINESS LICENSING AUTHORITY	Respondent

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 August 2001
DATE OF JUDGMENT:	13 August 2001
CASE MAY BE CITED AS:	Spano v Business Licensing Authority
MEDIUM NEUTRAL CITATION:	[2001] VSC 275

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Appeal from VCAT – Section 148 of VCAT Act 1998 – error of law – conditions attached to grant of permission to be agent's representative under Estate Agents Act 1980 – Section 31D of Act – discretionary exercise – discretion miscarried – irrelevant matters taken into account – appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J. Slonim	O'Donnell Frampton Salzano
For the Respondent	Ms E.A. Strong	Victorian Government Solicitor

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

History and Nature of Application................................................................................................. 2

The Tribunal Hearing....................................................................................................................... 4

The Conditions................................................................................................................................... 7

The Public Interest............................................................................................................................. 9

Limited Nature of Present Appeal................................................................................................ 11

Error of Law?..................................................................................................................................... 12

Conclusion......................................................................................................................................... 16

HIS HONOUR:

This is an appeal by a former estate agent, against a decision made by the Victorian Civil and Administrative Tribunal ("VCAT"), pursuant to leave granted by a judge of this Court under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act").

Parties

The appellant, Mr Vito Spano ("Mr Spano"), is aged 53 years and, for a period of time, was the holder of an estate agent's licence. His licence was cancelled in November 1992.

The respondent, Business Licensing Authority ("the Authority"), is a body corporate established by the Business Licensing Authority Act 1998, whose functions include administering the licensing and registration provisions of the Estate Agents Act 1980 ("the Act"). See s.6 of the Business Licensing Authority Act 1998.

Any person who wishes to apply for an estate agent's licence applies to the Authority. See s.17(1) of the Act. By reason of s.21(1), the Authority is obliged to consider every application for a licence.

History and Nature of Application

From about 1985 until 1992, Mr Spano held an estate agent's licence. This meant that he was considered by the licensing authority, at the time, to be a fit and proper person to hold an estate agent's licence. He operated a business known as Real Estate City. Mr Spano employed Mr Karahan, a Turkish speaking manager, at one of his branches. It appears that Mr Karahan conducted two transactions on behalf of Turkish speaking purchasers, and some $6,000 in cash was stolen by him.

Claims were made on the business and eventually, claims were made on the Estate Agents' Guarantee Fund, which were accepted by the Estate Agents Board. As a result, on 15 October 1992, Mr Spano's licence was automatically cancelled by reason of the operation of the Act. See s.22(2)(b).

On 25 November 1992, Mr Spano became bankrupt because certain property projects failed. By reason of the claim on the Fund and his bankruptcy, he became ineligible to hold an estate agent's licence pursuant to…

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.

Continue reading Spano v Business Licensing Authority

Details

AGLC: Spano v Business Licensing Authority [2001] VSC 275
Case: [2001] VSC 275
Decision Date: 13 August 2001

CaseChat Overview and Summary

In the case of Spano v Business Licensing Authority, the appellant, Mr. Spano, sought judicial review of a decision made by the Victorian Civil and Administrative Tribunal (VCAT). Mr. Spano was challenging the conditions imposed by the respondent, the Business Licensing Authority, on his application to be granted permission to act as an agent's representative under the Estate Agents Act 1980. The crux of the dispute centred around whether the conditions attached to the grant were lawful and whether VCAT had exercised its discretion correctly.

The primary legal issue before the court was whether VCAT had exercised its discretionary power under Section 31D of the Estate Agents Act 1980 correctly. Specifically, the court needed to determine if VCAT had made an error of law by imposing conditions that were not relevant to the statutory criteria for granting such permission. The court had to consider whether VCAT took into account irrelevant matters when exercising its discretion and if this constituted a miscarriage of discretion.

The court found that VCAT had indeed erred in law by considering irrelevant matters when imposing the conditions on Mr. Spano's application. The court held that VCAT's discretion under Section 31D was not to be exercised arbitrarily but must be based on relevant considerations aligned with the statutory objectives. Since VCAT had taken into account irrelevant factors, this amounted to a misapplication of its discretion. Consequently, the court allowed the appeal and quashed the decision of VCAT.

The final orders of the court were to quash the decision of VCAT and remit the matter back to VCAT for reconsideration, ensuring that only relevant statutory considerations are taken into account when exercising the discretion under Section 31D of the Estate Agents Act 1980.

Orders