Tripodina v Commissioner for Fair Trading

[2021] NSWCATAD 258

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tripodina v Commissioner for Fair Trading [2021] NSWCATAD 258

Hearing dates:

29 July 2021

Date of orders:

03 September 2021

Decision date:

03 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

K Ransome, Senior Member

Decision:

The decision under review is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Real estate agent – Application for Class 1 licence – Qualification and experience requirements set out in an Order issued by the Minister – Mandatory nature of requirements - Whether the applicant meets the terms of the Order

Legislation Cited:

Administrative Decisions Review Act 1997

Property and Stock Agents Act 2002

Property and Stock Agents (Qualifications) Order 2019

Property, Stock and Business Agents Act 2002

Category:

Principal judgment

Parties:

Christopher Tripodina (Applicant)
Commissioner for Fair Trading, Department of Customer Service (Respondent)

Representation:

Applicant in person
Legal, Department of Customer Service for Respondent

File Number(s):

2021/00104086

REASONS FOR DECISION

1. Christopher Tripodina has worked in real estate for some years. He held relevant certificates under the Property, Stock and Business Agents Act 2002 (now the Property and Stock Agents Act 2002 (the Act)) from about 2010 and a real estate agent licence from 13 April 2018. Reforms to the licensing regime for agents were introduced in 2017-2018 and further reforms commenced in 2020. The stated aims of the reforms were to improve educational and professional standards across the real estate and property industry, improve accountability and transparency, to streamline the licensing framework and strengthen compliance and enforcement powers (Second Reading Speech, Legislative Assembly, 21 November 2017).

2. Amongst other things, changes were made to the licensing system for real estate agents and there are now three levels of licence which reflect a person’s qualifications and experience:

• Certificate of registration (assistant agent);

• Class 2 licence (licensed agent)

• Class 1 licence (licensee in charge).

3. Under the transitional provisions in the new legislation, Mr Tripodina’s real estate agent’s licence was converted to a Class 2 real estate agent’s licence under the Act. On 1 February 2021 Mr Tripodina applied under the Act for a Class 1 licence - the licence required for anyone working as a licensee in charge of a business. The application was refused on 18 February 2021, a decision which was affirmed on 16 March 2021 following an internal review.

4. The basis upon which the Commissioner for Fair Trading refused Mr Tripodina’s application was that the Commissioner was not satisfied that Mr Tripodina met the qualification requirements set out in the Property and Stock Agents (Qualifications) Order 2019 to be issued a class 1 licence. Mr Tripodina has now sought review of that decision by the Tribunal under the Administrative Decisions Review Act 1997.

The relevant legislation

5. A person cannot act or carry on the business of a real estate agent unless the person is the holder of a real estate agent’s licence (s 8(1)(a) of the Act). Sub-section 14(1)(c) of the Act provides that a person is eligible to hold a license only if the Secretary is satisfied that the person has the qualifications required for the issue of the licence or class of license. An application for a license must not be granted unless the applicant is eligible to be granted the licence or certificate of registration concerned (s 19 of the Act). Under s 20 of the Act, a licence may be granted subject to conditions, for example, that the holder is only able to exercise certain functions.

6. Section 15 of the Act provides that the qualifications required for the issue of a licence are such qualifications as the Minister may approve from time to time by order published on the NSW legislation website. On 23 March 2020 the Minister made the Property and Stock Agents (Qualifications) Order 2019 (the Order). The Order sets out the qualification and experience requirements for the three new licence classifications mentioned above. 

7. Clauses 9 and 10 of the Order sets out “Pathways” by which a person may obtain a class 1 licence, with and without a restriction condition.

8. Clause 9 sets out the qualification requirements for class 1 licences without a restriction condition and provides for four pathways to obtain a class 1 licence. Pathways 1 and 2 relate to persons who, before making an application for a class 1 licence, held a class 1 licence. Pathways 3 and 4 relate to persons who hold a class 2 licence. They provide:

1. Pathway 3—holders of class 2 licence without restriction condition

The person has—

(a) held a class 2 real estate agent's licence without a restriction condition for at least 2 years, and

(b) satisfactorily completed the class 1 work experience requirements during a 2 year period, and

(c) been issued with a relevant diploma from a registered training organisation.

1. Pathway 4 - holders of class 2 licence with restriction condition

The person has—

(a) held a class 2 real estate agent's licence for at least 2 years and the licence has been subject to a restriction condition during some or all of those 2 years, and

(b) satisfactorily completed the class 1 work experience requirements during a 2 year period, and

(c) been issued with a relevant diploma from a registered training organisation, and

(d) satisfactorily completed Certificate IV in Real Estate Practice.

9. Clause 10 sets out the qualification requirements for class 1 licences with a real estate agent restriction condition and provides for three pathways to obtain a class 1 licence with that restriction. Pathway 1 relates to persons who, before making an application for a class 1 licence, held a class 1 licence with the relevant restriction. Pathways 2 and 3 relate to persons who hold a class 2 licence. They provide:

1. Pathway 2—holders of class 2 licence with relevant restriction condition

The person has—

(a) held a class 2 real estate agent's licence with a relevant restriction condition for at least 2 years, and

(b) satisfactorily completed the class 1 work experience requirements during a 2 year period, and

(c) been issued with a relevant diploma from a registered training organisation.

1. Pathway 3—transitional provision former licence holders

   The person—

   (a) holds a class 2 real estate agent's licence with the relevant restriction condition, and

   (b)   applies for the class 1 real estate agent's licence with the relevant restriction condition within 12 months after the commencement day, and

   (c)   immediately before the commencement day—

   (i) held a real estate agent's licence for at least 2 years, or

   (ii) held a real estate agent's licence and carried on business under the licence or was employed to be the person in charge of business carried on under a real estate agent's licence at a place of business.

   10. Clause 6 of the Order provides that, for the purposes of determining how long a person has held a particular licence, any period before the commencement day (23 March 2020) during which the person held an equivalent licence is to be counted. In this case, the period during which Mr Tripodina held a real estate agent licence can therefore be counted towards the qualification requirements for a class 1 licence.

Does Mr Tripodina meet the qualification and experience requirements?

11. Mr Tripodina held a certificate of registration as a salesperson under the previous licensing system from 23 December 2010 to 25 March 2018. On 13 April 2018 he was granted a real estate agent licence which, as noted above, transitioned to a class 2 licence on 23 March 2020. That licence is valid until 12 April 2022.

12. Mr Tripodina said that he upgraded to a real estate agent licence in 2018 on the advice of NSW Fair Trading so that he would not get caught out in the industry reform. He believed this would allow him to operate his own office in the future. Mr Tripodina said that he contacted NSW Fair Trading by telephone in December 2020 for advice on obtaining a corporation licence. It seems that Mr Tripodina registered a company, Easy Estate Pty Ltd, in July 2020 as he wanted to run his own real estate business. He states that he was advised to pay the application fee.

13. Mr Tripodina telephoned again on 15 January 2021 when he had received no response and was advised at that time that his application was most likely to be refused. He states he was then advised that he first needed to get a class 1 licence before his corporation licence could be processed. He said that the woman he spoke to told him that he was “close to the cut-off date” but should still be able to get a class 1 licence. He was given similar advice in another telephone call on 29 January 2021 and lodged his application for a class 1 licence on 1 February 2021 and paid the relevant fee. As set out above, that application was rejected.

14. Mr Tripodina is particularly aggrieved because he states that he was given wrong advice by NSW Fair Trading. He states that he has an unblemished record and provided testimonials from satisfied clients. He states that he has more than 10 years’ experience in the industry and has always exceeded the minimum CPD points each year so that he could enhance his skills and has spent many thousands of dollars on his training. He believes he has the requisite skills to be a licensee in charge and does not wish to appoint a stranger as the licensee in charge for his company. Mr Tripodina points out that he has been treated the same as others who have much less experience in the real estate industry and has missed out on being granted a class 1 licence by a matter of weeks. He states that the process has cost him a lot of money and has put his career on hold.

15. Mr Tripodina argues that I have a discretion to take the particular factors of his case into account when deciding whether he should be granted a class 1 licence. I do not agree. The Order is a statutory instrument made under the Act and it is therefore binding upon the Tribunal. Unless an applicant meets one of the pathways set out in the Order they cannot be granted the relevant licence. In other words, the experience and qualification requirements set out in the Order are mandatory.

16. In his application, Mr Tripodina seems to be applying for a class 1 licence without a restriction condition. In fairness to him, his application is assessed on the basis of both a class 1 licence without a restriction condition and a class 1 licence with a real estate agent restriction condition.

17. Clearly, any of the pathways which require an applicant to have held a class 1 licence immediately prior to making the application are not relevant to Mr Tripodina’s case. Mr Tripodina’s current class 2 licence is subject to a real estate agent restriction condition (sales or leasing functions or on-site residential property manager functions) and the only pathways which may be relevant are therefore those relating to class 2 licences with a restriction condition. These are pathway 4 in clause 9 and pathways 2 and 3 in clause 10.

18. Pathway 4 in clause 9 applies where a person has held a real estate agent’s licence for at least 2 years before 23 March 2020 (in accordance with clause 6) and during that period the licence was subject to, at least for part of the time, a restriction condition. Mr Tripodina does not meet this requirement as he held a class 2 real estate licence (or its equivalent) since 13 April 2013 which is less than 2 years. I note that an applicant seeking to satisfy this pathway must also have completed a work experience period and possess certain educational qualifications. Mr Tripodina has not provided any evidence that he meets these other criteria. I also note that the requirements in each of the pathways under both clause 9 and 10 are cumulative, that is, an applicant must meet all the requirements set out in a particular pathway.

19. For similar reasons, Mr Tripodina does not meet the requirements set out in pathway 2 in clause 10 which requires that, in order to be granted a class 1 licence, a person has held a class 2 real estate agent’s licence for two years prior to 23 March 2020. As he was only granted a real estate agent’s licence on 13 April 2018, he falls short of the required period. In addition, Mr Tripodina has not provided any evidence that he meets the work experience and educational qualifications set out in pathway 2 in clause 10.

20. Pathway 3 in clause 10 contains transitional provisions relating to persons who currently hold a real estate agent’s licence and who are applying for a class 1 licence with a real estate agent restriction condition. As previously stated, Mr Tripodina holds a class 2 real estate agent’s licence with the relevant restriction condition. He made his application within 12 months after the Act commenced which means he satisfies cl 10(4)(b). However, cl 10(4)(c)(i) requires an applicant to have held a real estate agent’s licence for at least two years before 23 March 2020. For the reasons which are set out above in relation to the other relevant pathways, Mr Tripodina does not meet this requirement.

21. While I understand Mr Tripodina’s frustration and accept that he is well regarded by his clients,  he does not meet the requirements set out in the Order to be granted a class 1 licence. The decision under review must therefore be affirmed.

Orders

The decision under review is affirmed.

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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

Decision last updated: 03 September 2021