Real Estate and Business Agents Supervisory Board v Espanol Holdings Pty Ltd (in liq) [No 2]

[2008] WASCA 109

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Statutes
2. › Interpretation
3. › Real Estate and Business Agents Act 1978 (WA)
4. › Fidelity Guarantee Fund
5. › Claims against fund
6. › Whether Board may have regard to s 118 defences when settling or disallowing claims
7. › Scope of s 117, s 118 and s 119
1. Statutes
2. › Interpretation
3. › Real Estate and Business Agents Act 1978 (WA)
4. › Fidelity Guarantee Fund
5. › Defences to claims
6. › Whether release of defaulting licensee constitutes defence under s 118
7. › Relevance of release to power to settle claim
1. Practice and Procedure
2. › Jurisdiction
3. › Whether action in relation to Fidelity Account is action in rem or in personam
4. › Whether jurisdiction conferred on courts
5. › Real Estate and Business Agents Act 1978 (WA), ss 117, 118, 120
1. Practice and Procedure
2. › Costs
3. › Public interest litigation
4. › Whether unsuccessful respondent should be relieved of costs
5. › Whether claim to private statutory right constitutes public interest litigation

Quick Take

A claimant against the WA Real Estate Fidelity Account who voluntarily releases a defaulting licensee as part of a settlement will have that release treated as a complete defence to the claim, both in any action against the Board and in the Board's administrative determination of the claim. The motive for or reasonableness of the settlement is irrelevant. Voluntary settlement before trial does not satisfy the requirement to 'exhaust' all relevant rights of action under s 117(1). Whether execution on a judgment is also required remains an open question.