Lashley v Bahamas Real Estate Association

• Jurisdiction: Bahamas
• Court: Supreme Court (Bahamas)
• Judge: Hepburn, J.
• Judgment Date: 28 June 2012
• Docket Number: APP/sts 20 of 2006
• Date: 28 June 2012

Supreme Court

Hepburn, J.

APP/sts 20 of 2006

Lashley

and

Bahamas Real Estate Association

Appearances:

Sherrylyn K Bastian for the applicant

Wayne Munroe for the respondent

Civil practice and procedure - Contempt — Committal proceedings — Whether respondent acted in disobedience of Orders.

Hepburn, J. :

1 This is a notice of motion by the applicant, Caryl A. E. Lashley (“the applicant”), an attorney at law, filed 11 November 2009 pursuant to Order 52 rule 2 for an order that William Wong (“Wong”) in his capacity as President of the respondent, The Bahamas Real Estate Association (“the respondent” or “the Association”), be committed to Her Majesty's Prison for his contempt of the Orders made by Hall, C.J. (as he then was) dated 1 August 2008 and filed on 27 January 2009 (“the first Order”) and 22 June 2009 and filed on 9 July 2009 (“the second Order”) respectively, (together “the Orders”) and for an order that the costs of and occasioned by this application and also the issuing and execution of an order to be made thereof be paid by the respondent. At the date of this hearing Wong was no longer President of the Association and he did not attend the hearing.

BACKGROUND

2 The background of the matter is this. The applicant made an application to the respondent for membership in the Association and a licence to be registered as a member of the Association and as a salesman in the Association (together “the Application” or “the applicant's Application”) in accordance with the Real Estate (Brokers and Salesmen) Act (“the Act”) and the Real Estate (Brokers and Salesmen) Regulations (“the Regulations”), having successfully passed the Association's entry level course and examination. The Application was supported, inter alia, by a letter from Mr. Heinz Wszolek, registered Broker, in support of the Application. The only issues which arose as regards the completeness of the Application were whether the application form was supported by two licenced Brokers, and whether it was seconded in accordance with Regulation 3. By letter dated 27 February 2006, Patrick Strachan (“Strachan”), the then President of the Association, informed the applicant that her Application had been reviewed by the Membership Committee of the Association and was not approved. Strachan's letter is set out below:–

“February 27th, 2006

Caryl Lashley,

DUPUCH TURNQUEST & CO.

P. O. Box N-8181,

Nassau, The Bahamas

Re: Application for Real Estate Licence

Dear Ms. Lashley:

This is to acknowledge receipt of your application for membership/licence in the Bahamas Real Estate Association.

First let me apologize for the delay in responding to you much sooner. However, before an appropriate response could be prepared I felt that I needed to conduct a background check to clarify a few points.

Secondly your application was reviewed by the Membership Committee of the Bahamas Real Estate Association and was not approved based on the following:–

• 1. According to the Real Estate Brokers and Salesman Act (1995)Licenses are granted to individuals who are involved with real estate on a full time basis. In your case, however, as far as we are aware you are still a practicing attorney (we have not received any indication from you that this is not the case).

• 2. It was brought to my attention that you had registered for the course by sending in your messenger and this information was relayed to her to pass on to you. Also, at the onset of the class, I myself in the capacity of president of the bahamas real estate association, informed the class that licenses will only be granted to persons who are employed on a full time basis. Hence every student in that class during my remarks had the opportunity then and there to withdraw from the class and obtain a full refund.

Please feel free to contact me should you wish to discuss this further.

Sincerely,

Patrick Strachan

President

(My emphasis).

3 The applicant by letter dated 23 March 2006 wrote to Strachan seeking clarification of its decision not to approve her application:–

23rd March, 2006

Mr. Patrick Strachan

President

BAHAMAS REAL ESTATE ASSOCIATION

Chamber of Commerce Building

Shirley Street

Nassau, Bahamas

Dear Sir,

Re: Application for Real Estate Licence — Caryl A. E. Lashley

I write in connection with the above-captioned matter and acknowledge receipt of your letter dated the 27th February, 2006, but delivered on the 20th instant. The contents of your letter have been noted. Before I proceed further, however, I seek clarification of your decision not to approve my application.

Based on my reading of the legislation, I, obviously erroneously, was of the view that I was entitled to have my application approved. I am not aware of the provisions of the legislation which prohibit individuals being granted a licence if they are otherwise engaged in any other undertaking or endeavour. I am particularly concerned because I am personally aware that many of your members are otherwise engaged in other undertakings.

I was present and with surprise heard your comments at the opening of the Real Estate course why I should seek to withdraw from the programme. The fact that I am an attorney should be of no consequence to your profession or to any other profession. I am sure that you are aware that the attorneys are physicians and accountants, why should they also not be realtors?

I should be grateful if your committee would revisit my application if it is still minded to refuse my application. I should be grateful if I am afforded the opportunity of a hearing at which time I am sure the specific provisions prohibiting my membership might be addressed.

While delay would ultimately be in your favour, I should be grateful for your early attention to this matter.

Yours faithfully,

CARYL A. E. LASHLEY

CAEL/se

4 By letter dated 22 May 2006 W Larry Roberts (“Roberts”), then President of the Association, wrote to the applicant:–

May 22, 2006

Mrs. Caryl Lashley

Dupuch & Turnquest & Co.

308 East Bay Street

Nassau, Bahamas

Dear Mrs. Lashley:

RE: Bahamas Real Estate Association Membership

I write to you in respect to Mr. Patrick Strachan's letter to you dated February 27th, 2006 and your subsequent letter dated 23rd March 2006.

Your application for membership in Bahamas Real Estate Association has been given further consideration. At the present time you do not qualify for membership. As stated in the aforementioned letter from Past President Patrick Strachan It is the policy of our association to only issue real estate licenses to persons who are employed full time in the real estate business. The only exceptions to this have been in the issuance of licenses to a few persons in the family islands where the level of business is insufficient to support fulltime employment as a salesperson.

In order to qualify we will need a letter from you stating that you have resigned from your position as an attorney in the firm of Dupuch & Turnquest and we will also need a letter from a Broker, in the case of Mr Heinz Wszolek who sponsored you, confirming that you are employed full time in his office as a salesperson.

Yours sincerely,

Bahamas Real Estate Association

W. Larry Roberts President

(My emphasis.)

THE APPEAL UNDER SECTION 37 OF THE ACT

5 On 3 July 2006, the applicant filed an appeal by way of originating notice of motion under section 37 of the Act seeking to have the Association's refusal of the Application overturned by the court on two grounds: (i) that she had not been given an opportunity to be heard and represented by counsel contrary to section 37 of the Act and the principles of natural justice; and (ii) that there was no requirement in the Act that she be employed full time in the real estate business.

6 At paragraph 12 of the Judgment (The Judgment appears as Exhibit “CAEL 1(b)” to the applicant's affidavit in support of the Motion. There are two paragraphs which are numbered 12. This reference is to that paragraph 12 which appears at pages 10 and 11 of the Judgment.) the Chief Justice, inter alia, set out the respondent's submissions on the intendment of section 15(1)(b)

(Section 15(1) of the Act provides:–

15

(1) If, in relation to any application for registration as a real estate broker or real estate salesman the Board is satisfied:– (a) that the provisions of section 13 have been complied with; (b) that the applicant is a fit and proper person to be so registered; and (c) that the applicant is not disqualified for registration under section 12, the Board shall, subject to subsection (2), approve the registration of the applicant as a real estate broker or, as the case may be, a real estate salesman.) of the Act, as follows:– “12. The respondent has requested additional information as required by Regulation 4(2) of the Regulations made under the Act (“in its consideration of an application for membership, the Board may require the applicant to submit to the Registrar additional information if the Board requires that information to make a proper determination with respect to the application”) and have not received it and, further, that the appellant has not complied with Regulations 3(b), 6(1)(b) and (9)(b) (applications for membership in the Association, applications for registration as a broker or salesman and applications for a licence shall be submitted along with RECOMMENDATIONS FROM TWO MEMBERS CERTIFYING THAT TO THE BEST OF THE KNOWLEDGE OF EACH OF THE MEMBERS THE APPLICANT IS OF GOOD CHARACTER AND IS A FIT AND PROPER PERSON). • the appellant has not complied with the Regulations and has failed or refused to provide the additional information requested to enable the respondent to determine her application for membership, the granting of a licence and registration as a salesman under the Act. • section 15(1)(b) of the Act requires the Board to be satisfied that the applicant is a lit and proper person' to be registered as a real estate broker or real...