WARD and COMMISSIONER FOR CONSUMER PROTECTION - [2019] WASAT 139

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: REAL ESTATE AND BUSINESS AGENTS ACT 1978 (WA)
CITATION:   WARD and COMMISSIONER FOR CONSUMER PROTECTION [2019] WASAT 139
MEMBER:   MS N OWEN-CONWAY, MEMBER
MS R MOORE, MEMBER
MR B POUND, SESSIONAL MEMBER

HEARD:   19 NOVEMBER 2019
DELIVERED          :   7 JANUARY 2020
FILE NO/S:   VR 87 of 2019
BETWEEN:   JOANNE JILLIAN WARD
Applicant
AND
COMMISSIONER FOR CONSUMER PROTECTION
Respondent

Catchwords:

Application for real estate agent licence - 'Fit and proper' - Qualifications - 'Sufficient practical experience in negotiating transactions' - 'Lawfully and satisfactorily performed the functions of a sales representative on behalf of a person who lawfully carried out the functions of an agent' - Period of time for sufficiency - Cogency of evidence - Breadth and depth of experience necessary - Turns on own facts

Legislation:

Land Agents, Brokers and Valuers Act 1973 (SA), s 15(2)(b)(ii)
Real Estate and Business Agents Act 1978 (WA), s 4, s 23(1), s 27, s 27(1), s 27(1)(b), Sch 1, cl 1(a), cl 2(a),
State Administrative Act 2004 (WA), s 17, s 27(1), s 27(2), s 29(3)

Result:

Decision affirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr J Peppinck

Solicitors:

Applicant	:	N/A
Respondent	:	Department Of Mines, Industry Regulation And Safety - Consumer Protection Division (In House Legal Counsel)

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

Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83
Gun v The Commercial Tribunal unreported, SCSA, Library No BC8800385
Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232

REASONS FOR DECISION OF THE TRIBUNAL:

The application

On 10 June 2019, the applicant, Ms Joanne Ward, lodged an application in the Tribunal for the review of a decision made by the respondent, the Commissioner for Consumer Protection. The applicant sought an order from the Tribunal to set aside the respondent's decision refusing to grant the applicant an agent's licence pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA) (REBA Act) made on 14 May 2019 (reviewable decision).

The Tribunal's jurisdiction

The applicant applied to the respondent on 14 February 2019 for an agent's licence, in a form provided by the respondent. The respondent accepted the application as being for the grant of a real estate agent's licence, which was noted on the printed receipt appearing on the application front page (respondent's book of documents, page 1). The application to the Tribunal for review is made pursuant to 23(1) of the REBA Act and s 17 of the State Administrative Act 2004 (WA) (SAT Act). The applicant seeks a review of the reviewable decision on the merits, by way of a hearing de novo, and the Tribunal's objective is to arrive at the correct and preferable decision (s 27(1) and s 27(2) of the SAT Act). The parties on a review are at liberty to provide additional information that was not before the respondent as the original decision‑maker and to make any relevant submissions (s 27(1) of the SAT Act). The Tribunal is not bound by the decision‑maker's reasons for the reviewable decision. To this end the applicant's submissions concerning perceived errors by the respondent administratively or otherwise are of limited assistance. Section 29(3) of the SAT Act provides that the Tribunal may affirm, vary or set aside the reviewable decision, and in the latter case may substitute its own decision. The respondent contended that the Tribunal should affirm the reviewable decision. The applicant sought an order, in effect, setting aside the reviewable decision and substituting therefore a decision granting her an agent's licence pursuant to s 27 of the REBA Act.

The proceeding before the Tribunal

The proceeding was listed for directions on 2 July 2019 and listed for mediation by a Tribunal member on 26 July 2019. By orders for directions made on 3 September and 8 October 2019, the parties' participation in the final hearing was facilitated. The proceeding was listed for a final hearing before a panel constituted by the President of the Tribunal. At the hearing the applicant gave no additional evidence or information under affirmation or otherwise. Her contentions were those identified in the documents filed by her and that she met the provisions of cl 2(a) of the Sch 1 to the REBA Act because she had gained the relevant practical experience in about 18 months which was 'within' a two year period and it was not necessary for her to have gained the practical experience 'for' or over a two year period. The applicant did not address the fact that there is approximately a 20 month gap between the end of the period of time of her practical experience and the making of the application for an agent's licence pursuant to s 27 of the REBA Act. The respondent did not call any further evidence. Both parties made oral submissions but, as stated, the applicant relied on her written submissions.

The documents before the Tribunal

The respondent's documents comprised:
(a)The respondent's statement of issues, facts and contentions.
(b)The respondent's bundle of documents upon which it relies including:
•The applicant's application for a real estate and business agent's licence (Individual) and supporting documents dates 14 February 2019.
•Respondent's letter to the applicant dated 15 February 2019.
•Documents provided by the applicant to the respondent including Diploma of Property Services, Sales representative role duties and undated transaction list for the applicant.
•Email from the respondent to the applicant dated 11 March 2019.
•Email from the applicant to the respondent with attachment dated 12 March 2019.
•Email from the applicant to the respondent with attachment dated 18 March 2019.
•Email chain between the respondent and the applicant dated 12 April 2019.
•Email from the respondent to the applicant attaching the respondent's preliminary view dated 18 April 2019.
•Email from the applicant to the respondent attaching the applicant's response to the respondent's preliminary view letter dated 25 April 2019.
•Email from the respondent to the applicant dated 29 April 2019.
•Email from the applicant to the respondent attaching a letter to the respondent dated 30 April 2019.
•Letter from the respondent to the applicant advising of the final decision dated 16 May 2019.
(c)The respondent's submissions and list of authorities.
The applicant's documents comprised:
(a)The applicant's statement of issues, facts and contentions.
(b)The applicant's bundle of documents upon which she relies including:
•Sales registration dated 11 February 2016.
•Email from the respondent to the applicant dated 10 October 2018.
•Assessment process to final decision documents dated 14 February 2019 – 31 May 2019.
•Application checklist document dated 6 March 2019.
•Draft certificate RA77419 ‑ endorsed by two officers dated 6 March 2019.
•Internal memo to commissioner dated 17 April 2019.
•Internal memo to commissioner dated 16 May 2019.
(c)The applicant's written submissions.

Issues

There is no dispute between the parties that the applicant has completed the necessary formal qualifications in order to be granted an agent's licence. There is no dispute about the applicant's character to hold such a licence. The dispute between the parties concerns whether the applicant meets the description of being 'a fit and proper person to hold a licence' as required by s 27(1)(b) of the REBA Act and in that regard whether she is 'qualified in accordance with Sch 1 [but] subject to the saving and exceptions provided by the [REBA Act]'. That issue, at its heart, requires an assessment by the Tribunal, on review, to determine whether it is satisfied, on the balance of probabilities, that the applicant 'has had sufficient practical experience in negotiating transactions to enable [her] to carry on the business of an agent satisfactorily' (cl 1(a) of the Sch 1 to the REBA Act). The term 'sufficient practical experience in negotiating transactions' is defined to mean a two year period during which an applicant performed specific functions and work to a specified standard and where the application for the grant of the agent's licence followed immediately on and after that period (cl 2(a) of Sch 1 to the REBA Act).
The applicant's contention is that cl 2(a) of Sch 1 to the REBA Act should be interpreted to mean that it was not necessary for the 'sufficient practical experience in negotiating transactions' referred to in cl 2(a) of Sch 1 to the REBA Act, to be acquired over or during a period of two years. Rather, it should be interpreted that the 'sufficient practical experience in negotiating transactions' referred to in cl 2(a) of Sch 1 to the REBA Act, had to be obtained 'during' a two year period and could be obtained in less than a full two year period.
The proper interpretation of cl 2(a) of Sch 1 to the REBA Act is the first issue that the Tribunal must consider and the question is whether cl 2(a) to Sch 1 of the REBA Act requires that the 'sufficient practical experience in negotiating transactions' be obtained over or in the course of a two year period or whether the 'sufficient practical experience in negotiating transactions' can be obtained in less than two years. The answer to this question is that cl 2(a) of Sch 1 to the REBA Act, read in the full context of the Schedule and the REBA Act requires that the 'sufficient practical experience in negotiating transactions' be obtained for a full two year period and that the applicant has not met this requirement of cl 2(a) of Sch 1 to the REBA Act.
The second issue is: whether cl 2(a) to Sch 1 of the REBA Act has any application in this proceeding, given that the applicant did not make her application 'immediately' after the period in which she alleged she obtained the 'sufficient practical experience in negotiating transactions'. The Tribunal concludes that cl 2(a) of Sch 1 to the REBA Act has no application in this proceeding because the applicant did not apply for an agent's licence pursuant to s 27 of the REBA Act 'immediately' after the conclusion of her role as a sales representative.
The remaining issue concerns the interpretation of cl 1(a) to Sch 1 of the REBA Act and whether the evidence and information before the Tribunal establishes that the applicant:
a)has had practical experience of:
i)'negotiating';
ii)'transactions';
b)if the answer to (a) is yes, whether that experience is 'sufficient' to conclude that the applicant is able to:
i)carry on the business of an agent;
ii)to a satisfactory standard.
The Tribunal concludes that the applicant has not demonstrated on the evidence and information that she has had 'sufficient practical experience in negotiating transactions to enable [her] to carry on the business of an agent satisfactorily'.

The statutory framework

Section 27 of the REBA provides, relevantly:
(1)Subject to this Act, a person, … who applies to the Commissioner for a licence and pays to the Commissioner the prescribed fee for the licence shall be granted and may hold a licence if the Commissioner is satisfied that –
…
(b)[she] is a person of good character and repute and a fit and proper person to hold a licence; and
…
(d)[she] understands fully the duties and obligations imposed by this Act on agents.
(2)In subsection (1)(b) fit and proper includes being qualified in accordance with Schedule 1 but subject to the savings and exceptions provided in this Act.
There are no relevant savings and exceptions in this proceeding.
A 'licence' is defined by s 4 of the REBA Act to mean a real estate agent or a business agent licence or both granted pursuant to the REBA Act.
A real estate agent is defined by the REBA Act in s 4 to mean, relevantly:
a person whose business … is to act as agent for consideration in money or money's worth, as commission, reward or remuneration, in respect of a real estate transaction as defined by this section[.]
Clause 1(a) of Sch 1 to the REBA Act, relevantly, provides:
A person ‑
(a)who … has had sufficient practical experience in negotiating transactions to enable him to carry on the business of an agent satisfactorily;
…
is, subject to this Act, qualified for the grant of a licence.
Clause 2(a) of Sch 1 to the REBA Act provides:
For the purposes of clause 1(a), but without limiting the generality of the provision in that paragraph in respect of practical experience, a person has had sufficient practical experience in negotiating transactions if he has, during a period of 2 years immediately preceding his application for a licence ‑
(a)lawfully and satisfactorily performed the functions of a sales representative on behalf of a person who lawfully carried out the functions of an agent, during that period or on behalf of a firm which did so[.]
The applicant must demonstrate that she has 'sufficient' experience in negotiating defined 'transactions' being, relevantly, a real estate transaction which term is defined as follows in s 4 of the REBA Act:
(a)means a sale, exchange, or other disposal and a purchase, exchange, or other acquisition of real estate and any exclusive right … to the use or occupation of real estate including the leasing, and letting, and the acquisition under lease or letting of tenancy or occupation of real estate; and
(b)includes any sale, exchange, or other disposal and any purchase, exchange, or other acquisition of goods, chattels or other property relating to a real estate transaction of a kind specified in paragraph (a); and
(ba)includes the collection of rents or other payments for use or occupation; and
(c)also includes an option to enter into a real estate transaction.
Contextually, cl 2(a) of Sch 1 to the REBA Act serves the purpose of identifying the conduct that meets the cl 1(a) of Sch 1 to the REBA Act qualification of having 'sufficient practical experience in negotiating transactions to enable [the applicant] to carry on the business of an agent satisfactorily' (Lampropoulos v Real Estate and Business Agents Supervisory Board [2004] WADC 232 at [26] ‑ [27] (Lampropoulos); Arasi and Real Estate and Business Agents Supervisory Board [2010] WASAT 83) (Arasi). The specified time required by cl 2(a) of Sch 1 to the REBA Act is two years. It is not an alternative to cl 1(a) such that sufficient relevant experience may be acquired in any period under two years (Lampropoulos (supra)). Rather, it is a sub‑set of cl 1(a) of Sch 1 to the REBA Act.
Further, for cl 2(a) of Sch 1 to the REBA Act to apply, there must be evidence not merely that an applicant was a registered sales representative for a period of two years immediately preceding the application pursuant to s 27 of the REBA Act, nor even that the person has been engaged or employed by a licensee for two years preceding the application pursuant to s 27 of the REBA Act. The Tribunal must be satisfied on the evidence and information before it, that the applicant both 'lawfully' and 'satisfactorily' performed the duties of a sales representative on behalf of a person who or firm that, lawfully, carried out the functions of an licensed agent. It is implicit from the scope, object and purpose of the REBA Act read as a whole that those duties are activities that are involved in negotiating transactions.
Following Lampropolous (supra) and Arasi (supra), the Tribunal concludes that in order to fall within cl 2(a) of Sch 1 to the REBA Act, the functions and activities relied upon by an applicant must have been performed:
a)lawfully by him or her as a registered sales representative;
b)by him or her to a satisfactory standard;
c)by him or her whist engaged by a licensed real estate agent or firm;
d)by him or her for a two year period.
Further, the specific requirement of cl 2(a) of Sch 1 to the REBA Act is that the application for an agent's licence pursuant to s 27 of the REBA Act immediately follow on from the two year period of practical experience (Arasi and Lampropolous).
Further, cl 1 and cl 2(a) of Sch 1 to the REBA Act focus on the many and various activities and functions of a licensee that are intended to culminate in 'real estate transactions' referred to in s 4 of the REBA Act. That is, the activities that culminate in the negotiation of concluded sales, purchases, leases of real estate, (and goods related to such transactions), options for the same and the collection of rents and other payments for use and occupation of real estate. Those activities and functions in respect of sales and leasing of real estate property include correctly identifying, engaging and contracting with clients; advertising properties; advising on price and value; preparation of appraisals; marketing properties; conducting negotiations with potential purchasers; concluding sales; advising on or preparing for relevant regulatory tasks for the transaction to conclude; collecting all receipts (deposits, bond monies and rent paid); and correctly processing the same and accounting for all monies held on trust. Accordingly, evidence or information supporting a conclusion that the applicant has the breadth of experience of negotiating all or most of the types of real estate transactions is necessary for the Tribunal to form the ultimate conclusion that an applicant can satisfactorily carry on the business of an agent (Arasi (at [29] ‑ [32]).
In order to meet the requirements of cl 1(a) of Sch 1 to the REBA Act, the Tribunal concludes that the applicant must establish that she has 'sufficient' practical experience of 'negotiating transactions' such that the Tribunal can conclude on the balance of probabilities she has been enabled thereby to carry on 'the business' of an agent 'satisfactorily'. As stated in Lampropolous, cl 1(a) of Sch 1 to the REBA Act is the general requirement and all of the applicant's relevant practical experience of negotiating 'transactions' may be taken into account. This provision is usually relied upon where the applicant has significant relevant practical experience but does not meet the provisions of cl 2(a) (such as, someone who has had substantial experience for 10 years as a sales representative but away from that role for 12 months (Lampropolous at [29]).
As the Tribunal stated in Arasi at [29]:
Ultimately it is necessary [for the Tribunal] to assess whether such a person has demonstrated that he or she has the necessary skills to operate across the full range of real estate transactions. Obviously, this is more likely to be the case when an applicant has experience in all areas. In Ms Arasi's case we are not satisfied that she has the skills to operate across the full range of transactions because her extremely limited experience in conducting property transactions and because much of her property management work was conducted without the supervision of an agent.
(Emphasis added)
The evidence and information should establish relevant practical experience in a range of the real estate transactions that a licensed agent operating an agent's business may encounter in a successful application for an agent's licence pursuant to s 27 of the REBA Act.
The necessity for evidence of an agent's supervision of the applicant's negotiated transactions is that, as stated in Arasi at [30]:
The Act places importance on the supervision of sales representatives by licensed agents[.]
Evidence or information that the real estate transactions were lawfully negotiated by the applicant (that is as a registered sales representative) under supervision of a licensed agent, tends to establish that the applicant understands the rules and obligations of the role of a licensed agent, particularly the provisions of the REBA Act and the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 (Code of Conduct), and that the applicant has enough ability to operate an agent's business without any obvious cause for concern at the very least.

The Tribunal therefore requires cogent and reliable evidence and information of:
a)The number and frequency of the relevant real estate transactions lawfully negotiated by the applicant and specifically the applicant's role in those transactions. It is not sufficient for the applicant to have observed the process culminating in the concluded transaction. There must be evidence or information that the applicant did in fact negotiate the transactions or at least negotiated the same to an identified stage in that process, albeit under supervision.
b)The nature of the negotiated real estate transactions to establish that the applicant has the practical skills and knowledge to operate a business as an agent and satisfactorily negotiate all or most of the types of real estate transactions that may be encountered ‑ sales, purchases, licences, leases and options for the same.
c)The period in which the transactions were negotiated, particularly if the applicant seeks to rely in cl 2(a) of Sch 1 to the REBA Act to assess whether the evidence of relevant practical experience is sufficient or the applicant has sufficient depth of relevant practical experience and whether that experience is reasonably current.
The question arises in this proceeding whether the lawful activities of an applicant not operating as a sales representative can be relied on under cl 1(a) of the Sch 1 to the REBA Act? That is, can the Tribunal consider and rely upon any evidence that the applicant as a co‑owner of investment real estate managed the leasing of the same? The respondent advanced the proposition that any evidence or information concerning the applicant's experience of negotiating real estate transactions in her own right should be given little weight as such actions are made on her own behalf and not in the role of a sales representative supervised by a licensed agent. Acting in her personal capacity in respect of her own property frees the applicant from the statutory and other duties applicable in the case of an agent who manages property for a client.
In Arasi, the Tribunal noted the applicant's 'largely unsupervised property management activities' as being a significant reason for the Tribunal concluding that the applicant in that proceeding failed to meet the practical experience criterion identified in cl 1(a) of Sch 1 of the REBA Act. Unsupervised negotiation, of real estate transactions generally carry little weight. The Tribunal agrees with the submission made by the respondent on this issue.
The respondent referred the Tribunal to the decision of Gun v The Commercial Tribunal (unreported, SCSA, Library No BC8800385, 14 March 1988, 24 March 1988) (Gun) which involves the provision of the Land Agents, Brokers and Valuers Act 1973 (SA) (LABV Act). That provision is not in the Tribunal's view, sufficiently similar to s 27(1), cl 1(a) and cl 2(a) of Sch 1 of the REBA Act to provide any useful assistance in interpreting those provisions. The relevant provision in Gun (s 15(2)(b)(ii) of the LABV Act) calls on the applicant to establish that he or she had been 'employed as a registered sales representative for a continuous period of two years' within a five year period prior to the application. As an alternative, the provision refers to 'other adequate practical experience'. The provision under examination in this proceeding requires an assessment of the type, nature and volume of negotiated transactions conducted and further, does not permit of a consideration of the legislation in issue in this proceeding allows alternative to 'adequate experience'.

The evidence and findings of fact

The applicant's evidence of her practical experience comprises the following and the Tribunal so finds:
a)That between 11 February 2016 and 11 February 2019 the applicant was a registered sales representative in this State. The Tribunal notes that there is no evidence that the applicant renewed her registration as a sales representative at any time after 11 February 2019 when her registration expired in its terms. The applicant did not assert in this proceeding that she was at any stage a registered sales representative after 11 February 2019.
b)The applicant informed the respondent that she ceased employment as a sales representative on 14 June 2017.
c)The applicant was engaged as a sales representative by Bassett‑Scarfe Realty between 20 January 2016 and 14 October 2016. The Tribunal notes however, that the applicant's lawful entitlement to operate as a sales representative did not commence until 11 February 2016.
d)The applicant was engaged as a sales representative by The RealEstate Co Mandurah between 24 October 2016 and 11 June 2017.
e)During the applicant's engagement at Bassett‑Scarfe Realty in relation to 58 residential dwellings that she identified by reference to their addresses:
i)the applicant negotiated the sale of two residential dwellings in August 2016, for which she was awarded a 'top 10 Rookie of August 2016' by the Real Estate Institute of Western Australia;
ii)the applicant negotiated the sale of a residential dwelling conjunctionally with another agent and her role was to introduce a purchaser;
iii)the applicant entered into nine agency agreements in respect of the sale of dwellings (including the two properties referred to in (i) above) and undertook nine 'current market appraisals';
iv)the applicant attended house opens for 37 residential dwellings, including the nine in respect of which she signed agency agreements; and
v)the applicant conducted 19 kerbside appraisals of residential dwellings.
f)During the applicant's engagement at The RealEstate Co Mandurah in relation to 46 residential dwellings that she identifies by reference to their addresses:
i)the applicant negotiated no real estate sales transactions to completion at all;
ii)the applicant negotiated the sale of two residential dwelling conjunctionally with another agent and her role therein is unclear;
iii)the applicant entered into 11 agency agreements in respect of the sale of dwellings (in addition to the two properties referred to in (i) above) and undertook 11 'current market appraisals';
iv)the applicant attended house opens for 31 residential dwellings, including the nine in respect of which she signed agency agreements; and
v)the applicant conducted 12 kerbside appraisals of residential dwellings.
The Tribunal finds that the applicant declined to provide the respondent with any detail by which the respondent could measure the applicant's involvement in the three conjunctional transactions, to enable the respondent to assess what weight to attribute to the applicant's partial negotiation of those transactions. The Tribunal finds that the applicant declined to provide the respondent with details of her involvement with the other residential properties which did not sell, so as to enable the respondent to assess the weight to be attributed to her conduct in those inconclusive negotiations. The applicant declined to provide further details concerning all other residential dwellings she listed as being relevant to negotiating real estate transactions, so as to enable the respondent to attribute any weight to her activities in that regard.
The Tribunal therefore concludes and finds that under the supervision of a licensee, the applicant negotiated two real estate transactions in a period of 15.5 months during which she could lawfully negotiate such transactions as a sales representative and had some limited involvement in three other real estate transactions. The Tribunal finds that the applicant did not negotiate any real estate transactions that involved a lease, licence or exclusive right to occupy premises, the collection of rents or other payments in respect of the right to occupy premises or land or options for a sale, purchase, lease or licence as a registered sales representative subject to the supervision of a licensed agent.
Although the applicant relied upon her role in her personal capacity of managing the leases on two properties she and her husband own as investments, the applicant did not provide the Tribunal with any source information about the leasing of these properties or the management of those leases. Given that the activities the applicant undertook in relation to these properties is not objectively recorded (such as would be the case if she had conducted these activities as a sales representative under supervision of a licensed agent) the mere written assertion that she has negotiated leases and collected rents and other payments in respect of those personally co-owned properties does not establish as a fact that she did negotiate the leases or collect receipts for the Tribunal's purposes. The Tribunal concludes that the written assertion of that action without any documentary or other information is not sufficiently cogent for the Tribunal to conclude the facts as asserted by the applicant.
The applicant did not give any oral affirmed evidence before the Tribunal on this or any other matter before the Tribunal. The Tribunal concludes that the applicant's written assertion about her activities in respect of her two co‑owned properties in her personal capacities to be unsafe for the Tribunal to rely upon in any event.
The applicant's application to the respondent contains a number of references. Mr John Lovell has made a statement that he has known the applicant for 10 years and professionally when she was working for an unidentified real estate agent business. The evidence and information does not assist the Tribunal in ascertaining the negotiated transactions the applicant was involved with fully or to any extent.
Mr Bond made a statement in a reference of the work that the applicant had performed with the Town of Port Headland. The Tribunal is satisfied that the applicant did undertake duties concerning the rates to be issued to land proprietors and held a position that involved the supervision of others in that regard. The evidence and information from Mr Bond does not, however, establish that the applicant negotiated or was in any way involved with the negotiation of transactions.
Mr Rudler stated in the applicant's application that he has known the applicant for a considerable period of time (22 years) when he was the Mayor of Port Headland (1996 ‑ 2003); as an acquaintance in Mandurah (2002 ‑ 2018) and in 2016 when she contacted him to ascertain whether he wished to purchase some land for development from a land owner, presumably in her role as sales representative for that land owner whilst employed in one or other real estate agent firms referred to above. The evidence or information concerning an approach about a possible sale, is of little assistance to the Tribunal in this proceeding.
None of the referee witnesses were called to provide additional evidence or information and expand upon their statements.

Consideration

In this proceeding the evidence of the two negotiated transactions that the applicant performed and three that she was involved in to an unidentified degree out of 104 properties she has been involved with in 15.5 month's engagement as a sales representative is the only relevant evidence or information before the Tribunal. The remaining evidence or information of her partially negotiated transactions is too vague and lacking in cogency for the Tribunal to rely upon the same and find that her involvement can account for any real degree of the practical experience called for by the REBA Act. At best five negotiated transactions (sales) in this period, supervised by a licensed agent, is patently insufficient to satisfy the Tribunal that the applicant has been enabled by that practical experience to carry on business as an agent satisfactorily and grant her an agent's licence. The assertion concerning her practical experience in leasing and managing her personal co‑owned investment property is not reliable to prove the asserted fact and in any event such fact, if established, would not assist greatly in persuading the Tribunal that the applicant had developed the knowledge and skills in management of leased properties as an agent. The evidence of her referees is equally either irrelevant to the issues or not sufficiently detailed to be able to rely on the same. The Tribunal finds that the applicant has insufficient depth and breadth of practical experience for the Tribunal to conclude on the balance of probabilities that the applicant has had the practical experience called for by the REBA Act to conclude that she can satisfactorily carry on business as an agent.
Further, at the time of her application to the respondent for an agent's licence and to the Tribunal for review of the reviewable decision, the applicant was not a registered sales representative. At the time of the hearing, the applicant had not undertaken any negotiated transactions as a sales representative for 28 months (11 July 2017 to 19 November 2019). Although the applicant had undertaken the Diploma of Property Services (Agency Management), which is the required formal qualification and completed the same by February or March 2019, her practical experience is not as current as her theoretic learning. Whilst cl 1(a) of Sch 1 to the REBA Act does not specifically refer to currency of the practical experience, it is a significant feature of cl 2(a) of Sch 1 of the REBA Act and in any event the practical experience must ultimately satisfy the Tribunal of the ability of the applicant to carry on business as an agent in the immediate future.

Conclusion

As such the Tribunal is not satisfied that the applicant meets the experience qualifications required by the REBA Act for the issue of a real estate agent's licence to her (s 27(2), and Sch 1 cl 1(a) of the REBA Act). Consequently, the Tribunal is not satisfied that the applicant is a fit and proper person to hold an agent's licence. This decision in no way casts any negative aspersion on the applicant's character or her formal qualifications. It is a question of sufficiency of the practical experience required by the REBA Act and the weight that can be attributed to the evidence and information before the Tribunal.
Upon reviewing all of the information and evidence in the Tribunal in this proceeding the Tribunal concludes the correct and preferable decision in respect of her application for the grant of a real estate agent's licence pursuant to s 27 of the REBA Act is that it should be refused. As the respondent did refuse the applicant's application, the Tribunal concludes that upon review it shall affirm the original decision‑maker's decision.

Order

1.Upon review, the decision made by the Commissioner for Consumer Protection made on 16 May 2019 refusing the applicant's application for the grant of a licence pursuant to s 27 of the Real Estate and Business Agents Act 1978 (WA), is affirmed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N OWEN-CONWAY, MEMBER
6 JANUARY 2020