The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas Real Estate Association (BREA) and an ex-Cabinet minister can both claim ‘victory’ following the latest round in their legal battle.

The Court of Appeal, in a March 9 ruling, declined to ‘stay’ a Supreme Court verdict that requires the Real Estate Board “to consider” George Smith’s application for restoration of his realtor’s licence.

But, while dismissing BREA’s argument that this would render any appeal outcome irrelevant, the Court of Appeal did stay the determination of Mr Smith’s damages by the Supreme Court registrar.

The ruling is merely the latest episode in BREA’s ongoing legal battle with the former Cabinet minister, which was sparked when it published a newspaper advertisement listing his name among 70 realtors who had failed to pay their due licence fees.

Those realtors ceased to be registered under the Real Estate (Brokers and Salesman) Act 1995, and were no longer authorised to engage in the real estate business.

Mr Smith, in an affidavit accompanying his initial summons, said he wrote to BREA on July 21, 2014, seeking ‘re-registration’ while also paying the required fees for his licence renewal.

BREA, though, informed him 10 days later that he had to complete a re-registration form and make an additional $150 payment.

The two sides were unable to resolve their differences and, alleging that he had suffered “damage and loss” as a result of being unable to practice real estate, Mr Smith said he feared BREA would request the surrender of his licence.

Justice Deborah Fraser, in a May 12, 2015, decision, found in favour of Mr Smith’s argument that BREA had violated section 35 of the 1995 Act.

This requires the Real Estate Board to give a hearing to all applications made to it under that law.

However, 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.

Mr Smith was granted a declaration that BREA’s refusal to renew his licence and membership violated the 1995 Act’s provisions, and was “against administrative jurisprudence and the law generally”. The Supreme Court also Ordered that Mr Smith’s damages be assessed by the Supreme Court registrar.

Justice Fraser subsequently refused to grant BREA leave to appeal her original ruling. The Association, though, then went to the Court of Appeal seeking a ‘stay’ of that verdict until its appeal was heard.

Ms Sweeting, in a June 22, 2015, affidavit said Mr Smith wrote to BREA’s registrar on June 1 last year, requesting the issuance of his membership and licence certificates for 2014 and 2015.

The renewal fees were enclosed, but not the re-registration fee. Mr Smith allegedly requested that BREA use the Act’s section 34, which gives the Board the power to reinstate realtors and their licences if either has been suspended or revoked.

“He also referred to the Supreme Court judgment and requested $250,000 in settlement of the damages and legal fees,” Ms Sweeting alleged. “The respondent [Mr Smith] also alleged requested that [BREA] ‘render their decision in a timely manner’.

“The reason for the ‘Stay Summons’ is that if [BREA] was to give the respondent an opportunity to be heard, as referenced by section 35 of the Real Estate Act........., then the Supreme Court judgment would be effected and an appeal judgment in BREA’s favour would be rendered moot or nugatory.”

As for the damages Order, Ms Sweeting alleged that if they were assessed and required to be paid prior to the Court of Appeal hearing, BREA’s appeal “would be overcome by events and rendered meaningless since the damages” would already be under Mr Smith’s control.

Raynard Rigby, Mr Smith’s attorney, wrote to BREA on July 16, 2015, after they were notified that Mr Smith’s application would not be considered until September that year.

“The conduct of the [Real Estate] Board will lead to their continued unlawful disenfranchisement of their right to engage in the profession,” Mr Rigby warned.

“You should also be well aware that George A. Smith has been engaged in the practice of real estate before the coming into effect of the Act.”

The Court of Appeal verdict, delivered by Justice Jon Isaacs, found that the absence of a ‘stay’ on the Board being required to hear Mr Smith’s application would not render the case “nugatory”.

He added that Mr Smith would suffer more if the ‘stay’ or injunction was imposed, as he would effectively be barred from practicing real estate until the case was resolved.

“We are unable to see how a stay not being granted by this court, in reference to the judge’s order that BREA consider the respondent’s [Mr Smith’s] applications, will render nugatory a successful appeal by the appellant,” Appeal Justice Isaacs found.

“Should the appellant [BREA} prevail on appeal, the court can order the respondent to return the certificates and/or licences to BREA if in the interim a decision had been made to issue same.

“We hold the view that the prejudice which may be experienced by the respondent in not being able to pursue his chosen field of endeavour, pending the determination of the appeal, outweighs any which may inure to the appellant.”

Justice Isaacs added that the Court of Appeal was “not convinced” by BREA’s arguments that it might “encounter difficulties in recovering the assessed damages” if their appeal was successful.

Suggesting that the Supreme Court could have ordered that any damages award be placed into an escrow account pending the appeal’s outcome, Justice Isaacs still concluded that ‘no prejudice’ would be suffered by Mr Smith if the damages assessment was ‘stayed’.

BREA was represented by Courtney Pearce-Hanna of Callenders & Co.