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Benchmark - Real Estate Cases & Commentary
Procedure
    •  Natural justice
            >  NEW Opportunity to present case
            >  Tribunal's refusal to adjournal hearing



Opportunity to present case 

Mr Johnson was a director of a real estate company operating in Melbourne.

In 2008, Mr Johnson admitted that his company had underquoted the price of two properties, contrary to Victorian legislation. Further, he had made misleading representations about one of those properties and had not included an estimated selling price in his engagement authority for a third property, also contrary to Victorian legislation.

Mr Johnson gave enforceable undertakings to Consumer Affairs Victoria that he would comply with the relevant legislation in the future.

In 2010, Consumer Affairs Victoria conducted an investigation and concluded that Mr Johnson and his company had breached the legislation again, and that Mr Johnson had also therefore breached the enforceable undertakings he had given.

Consumer Affairs Victoria took Mr Johnson to the Victorian Civil and Administrative Tribunal. The Tribunal found that Mr Johnson was not a fit person to hold a real estate licence. It therefore cancelled Mr Johnson’s real estate licence, and ordered that he be disqualified from reapplying for such a licence for two years.

Mr Johnson appealed to the Supreme Court of Victoria against the Tribunal’s decision.

The Court held that the application for enquiry, filed in the Tribunal by Consumer Affairs Victoria, did not raise the question of whether Mr Johnson was fit to hold a licence. That application described the scope of the proceedings merely as an enquiry whether breaches of the relevant legislation had occurred.

The Court pointed out that the application filed by Consumer Affairs Victoria had defined the scope of the proceedings before the Tribunal. The Tribunal did not have a general jurisdiction to consider all matters that it considered might arise. Therefore, Tribunal had lacked jurisdiction to find that Mr Johnson was not fit to hold a licence. Further, because Mr Johnson had not been given notice that his fitness to hold a licence was in question, it had been a breach of natural justice for the Tribunal to have made a finding that he was not fit.

Therefore, the appeal against the Tribunal’s Orders was allowed, and the matter was remitted to the Tribunal to be heard again and decided according to law.

Johnson v Director of Consumer Affairs Victoria [2011] VSC 595



Tribunal's refusal to adjourn hearing  _

The Residential Tenancies Tribunal, which first heard this case, set its hearing for Wednesday, 18 March. It sent notice of this fixture to the landlord on 4 March. On 12 March the landlord’s agent requested an adjournment because the landlord would be interstate on that day and he wished to give evidence. The agent enclosed the landlord’s itinerary, confirming his travel plans had been made some time ago. The Tribunal declined to re-schedule the hearing but did receive a three-page submission from the landlord tendered at the hearing.

The landlord appealed the Tribunal’s Order on the basis that it had failed, among other things, to give reasonable notice of the hearing and refused to adjourn to a date when he could attend.

The District Court found that the Tribunal, a quasi-judicial body, was required to apply the principles of fairness and natural justice. The Court held that, on the face of it, the landlord’s application deserved to be considered at the hearing. The landlord had relatively short notice of the application, which was fixed well after his travel plans were set. Further, there was no suggested prejudice to the tenant nor was the subject matter pressing or urgent. Failure of the Tribunal to adjourn the hearing until the landlord, who expressly wished to appear, could be present constituted procedural unfairness and was an error of law.

The Court further determined, however, that it had negated any possible unfairness by considering the entire matter afresh. In doing so, it reached the same conclusion as the Tribunal and upheld the awards in favour of the tenant. [We have reported on the other aspect of the District Court’s decision separately.]

Cowled v Britten-Jones [2010] SADC 21