The Court of Appeal has overturned Supreme Court Justice Deborah Fraser's ruling against the Bahamas Real Estate Association (BREA). The Court of Appeal held that the assertion by George Smith that he had a right to be present and represented at a BREA Board meeting "in support of his application" for reinstatement of his license "could not properly be sustained". The court set aside the declarations granted by the trial judge, and awarded both Supreme Court and Appeals Court costs to BREA, "to be taxed if not agreed".
The court also ruled that Fraser "went astray in coming to the conclusion that the BREA Board arrived at an actionable decision under the act. As a result, the appellant succeeded on this appeal and having regard to our conclusions, it was unnecessary to consider the other grounds submitted."
BREA is the body statutorily responsible for registering and licensing persons who wish to engage in the practice of selling real estate in The Bahamas; Smith is a former real estate broker who failed to pay the fees required to sustain his membership and to have his license, registration and membership renewed with the appellant for the year 2014 before the end of the registration grace period on July 1, 2014.
Writing for the Appeals Court, Justice Roy Jones noted that as a result of this failure, Smith was removed from the register of licensed and registered brokers for non-payment of the mandatory statutory fees.
According to the record, Smith wrote a letter to BREA requesting re-registration and enclosed his renewal fees on July 17, 2014, 16 days after the expiration of the grace period. BREA's position, per the judgment, was that Smith's removal from the register required him to complete the full registration and application for membership and licensure under the Bahamas Real Estate (Brokers and Salesmen) Act.
The appeals court noted that Smith successfully sought redress in the Supreme Court, following which BREA appealed.

Appeal
Jones pointed out that Section 34(1) of the Bahamas Real Estate (Brokers and Salesmen) Act (TBREA) provides: "The board may, at any time upon application in writing by any person whose name has been removed from the register or whose license has been suspended or revoked, determine, if it thinks fit, that such person's name shall be restored to the register or, that his license be restored or the suspension cease, as the case may be, with effect from such date as the board may appoint, and shall forthwith give notice of any such determination to the registrar."
Section 34(2) continues: "On receipt of notice of a determination made by the board under subsection (1) in relation to any person, the registrar shall forthwith cause the name of that person to be restored to the register or, cause a note of the cessation of the suspension or the restoration of his license to be entered therein, and shall cause notice of the determination by the board to be published in the Gazette."
Section 35 of the act provides: "Notwithstanding anything contained in this act, the board shall not refuse any application under this act unless it has afforded to the applicant a reasonable opportunity to be heard in support of his application and any person so entitled to be heard and be represented before the board by a counsel and attorney or other representative of his choice."
Jones wrote: "The issue to be determined on appeal was whether the trial judge erred in law in finding that the appellant made a decision in respect of an application under TBREA to refuse renewal of the respondent's license, membership and registration in breach of the provisions of section 35 of TBREA. The correspondence between the appellant and the respondent referred to an application process provided for under TBREA Regulations rather than a statutory decision under the act. Therefore, the respondent's right to be present and represented at the board meeting 'in support of his application' in respect of an 'application under the act' could not properly be sustained and the learned judge went astray in coming to the conclusion that the appellant's board arrived at an actionable decision under the act."

Conclusion
BREA appealed and the matter was heard on March 17, 2016. Justice Jones wrote the judgment, summed up in the conclusion and disposition.
"We were of the view that the respondent's right to be present and represented at the board meeting 'in support of his application' in respect of an 'application under the act' could not properly be sustained. The second difficulty was that the learned judge, [Justice] Fraser, went astray in coming to the conclusion that the BREA Board arrived at an actionable decision under the act. As a result, the appellant succeeded on this appeal and having regard to our conclusions it was unnecessary to consider the other grounds submitted," he said.
Guardian Business understands that the costs issue did have to go to the tax court, and that BREA was awarded 52 percent of its court costs. It is also understood that Smith will challenge the ruling, and a date has been set for a judicial review in September.

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