The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A Supreme Court judge has refused to grant the Bahamas Real Estate Association (BREA) leave to appeal her verdict in favour of an ex-Cabinet minister, finding it has “no arguable case”.

Justice Deborah Fraser, in a June 15 ruling, also refused BREA’s application for a stay of that verdict as it would “prejudice” former Exuma MP, George Smith.

The latest ruling represents a second reversal for BREA in its ongoing legal battle with the former Cabinet minister over the publication of his name among 70 realtors who had failed to pay their due licence fees.

Justice Fraser, in an earlier May 12 decision, found in favour of Mr Smith’s argument that BREA had violated section 35 of the Real Estate (Brokers and Salesmen) Act 1995.

This requires the Real Estate Board to give a hearing to all applications made to it under that law. BREA’s president, Carla Sweeting, said the Board felt Mr Smith never applied for such a hearing in his July 21 letter to them – a position the judge disagreed with.

Setting out her written reasons for that decision for the first time, Justice Fraser’s June 15 verdict reveals that Mr Smith’s position was supported by two ex-BREA presidents – William Wong and Patrick Strachan – via affidavits.

She adds that her original decision came after BREA’s attorney, Simone Morgan-Gomez, admitted before her that BREA had never granted Mr Smith a hearing over his alleged non-payment of licence fees by the due date.

The ‘end result’ was that both sides agreed the ex-Cabinet minister would “make further application” for a hearing before BREA, based upon the Supreme Court’s decision. The Association, though, in the meantime sought leave to appeal Justice Fraser’s verdict and a ‘stay’ of the decision.

“Having carefully looked at my decision, and the proposed grounds of appeal, I do not think the defendants [BREA] have an arguable case,” Justice Fraser found.

Mr Smith and his attorney, Raynard Rigby, had based their arguments around section 35 of the Real Estate (Brokers and Salesmen) Act, which requires the Real Estate Board to give a hearing to all applications made to it under that law.

Section 35 requires that applicants are given “a reasonable opportunity to be heard”, while the Act’s section 34 gives the Board the power to reinstate realtors and their licences if either has been suspended or revoked.

“BREA failed to act under section 34, even though that section gave them the power to do so,” Justice Fraser found. “Those powers are very wide. The Board is empowered at any time upon application in writing by any person whose name has been removed from the register to determine if it thinks fit that the person’s name be restored to the register.

“It should be noted here the plaintiff’s [Mr Smith] name was removed from the register for the non-payment of fees. His name was not removed for professional misconduct.”

BREA’s argument, though, is that the relevant part of the Act is section 21, which sets out how any persons removed from the list of registered, licensed realtors can apply for re-registration.

Addressing that, Justice Fraser ruled: “The evidence of Ms Carla Sweeting is that there were no special circumstances that would have warranted the defendants [BREA] using section 34 of the Act when other persons were being asked to re-register.

“This indicates a policy would have been put in place which required persons who did not pay fees on a timely basis to re-register. [Mr Smith] relied on the affidavits of Mr Wong and Mr Strachan, and the principle of legitimate expectation, to say otherwise.”

Justice Fraser said there were established legal principles requiring decision-makers to determine whether established policy met the facts of a particular case.

She added that Mr Smith submitted a letter and his due fees to BREA on July 21, 2014. And Ms Sweeting’s evidence showed the Real Estate Board opted not to “exercise their discretion” under the Act’s section 34.

“This was not conveyed to the plaintiff,” Justice Fraser found. “He was advised that he had to re-register, and he was not heard in relation to this decision.

“The language of section 35 of the Act is mandatory and it accords with the principles of natural justice. A decision-maker must give a fair hearing. This is the most fundamental right.”

“The evidence before the court was that the Board had met and made a decision, and determined it would not exercise its discretion under section 34,” Justice Fraser added.

“Having made a decision, BREA is obligated to hear the plaintiff. This did not happen. The decision was therefore a nullity. The defendants cannot now, in their grounds of appeal, state that there was no decision taken by the Board or that there was no valid application made by the plaintiff [Mr Smith].”

With the Supreme Court registrar now assessing Mr Smith’s damages, Justice Fraser continued: “The plaintiff would have been without a licence since July 2014, almost one year ago.

“This is a licence to qualify the plaintiff to engage in the practice of real estate business, otherwise he is not legally permitted to sell real estate. This is his means of livelihood. This, obviously, would have serious economic implications for him should he remain off the register for any period of time.”

And, refusing BREA’s request for her original verdict to be stayed, Justice Fraser said there were no “special circumstances” requiring her to do so.

“The defendants [BREA} do not have any arguable grounds, and there is no evidence presented to this court to suggest BREA would be financially ruined,” she ruled.

“I am of the view, therefore, that to grant such a stay could only prejudice the plaintiff and deny him what he is entitled to as a result of the decision of this court.”

Mr Smith previously admitted he had been behind on his licence fees, albeit for one month and the first-time ever.

He added, though, that the Act required BREA to publish an annual listing of members who were current and in good standing with their licence fees, not those allegedly delinquent or behind on payment.

Tribune Business previously revealed the controversy caused by BREA’s decision to publish in July 2014 a listing of all realtors allegedly not in good standing on their licence fees.

Others included on the list were now-FNM chairman Michael Pintard, who chalked his delinquency up to an oversight on his part.

Another problem, though, was caused by the inclusion of realtors who were actually in good standing, including Bishop Walter S Hanchell, president and chief executive at PGF Real Estate. He was among those mistakenly named as being delinquent on their licence fees.