Re Real Estate and Business Agents Supervisory Board; Ex Parte Cohen

(1999) 21 WAR 158; [1999] WASCA 47

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Administrative Law
2. › Prerogative writs
3. › Certiorari and mandamus
4. › Jurisdictional error of law
5. › Administrative tribunal misinterpreting scope of statutory jurisdiction
6. › Whether mortgage finance broking by licensed real estate agent constitutes 'real estate transaction'
7. › Real Estate and Business Agents Act 1978 (WA), ss 4, 68, 84, 116, 117
1. Administrative Law
2. › Prerogative writs
3. › Certiorari and mandamus
4. › Jurisdictional error of law
5. › Wednesbury unreasonableness
6. › Finding that claim was out of time
7. › Whether decision so unreasonable as to constitute jurisdictional error
8. › Real Estate and Business Agents Act 1978 (WA), s 116(2)
1. Administrative Law
2. › Natural justice
3. › Procedural fairness
4. › Duty to disclose case against claimant
5. › Whether Board obliged to provide copy of counsel's opinion to claimants
6. › Whether Board obliged to give claimants opportunity to respond to adverse matters
1. Administrative Law
2. › Prerogative writs
3. › Remedies
4. › Discretion to refuse relief
5. › Whether existence of alternative remedy in District Court warranted refusal of certiorari
6. › Whether appeal lies under s 23 from Board's refusal of Fidelity Fund claim
7. › Real Estate and Business Agents Act 1978 (WA), ss 23, 117

Quick Take

A transaction involving the loan of money secured by a mortgage of land is a 'real estate transaction' under s 4(1) of the Real Estate and Business Agents Act 1978 (WA), because a Torrens system mortgage creates an interest in land within the Interpretation Act 1984 definitions. Mortgage finance broking by a licensed real estate agent is not excluded from the scope of the Act merely because it may also constitute finance broking under the Finance Brokers Control Act 1975. An appeal lies to the District Court under s 23 from a Board decision to refuse a Fidelity Fund claim, overruling Cocks v The Real Estate Agents Supervisory Board. Claims against the Fidelity Fund are limited to the extent of the defalcation and do not extend to interest as damages.