Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lioe v Britney Kraus Real Estate Pty Ltd [2020] NSWCATAP 258 Hearing dates: 26 November 2020 Date of orders: 8 December 2020 Decision date: 08 December 2020 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President S Goodman SC, Senior Member Decision: Appeal dismissed. Catchwords: APPEAL - no error of law - leave to appeal - claim against agent, Legislation Cited: Australian Consumer Law (NSW) Civil & Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 NSW Property and Stock Agent Regulation 2014 NSW Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Yan (Albert) Setianan Lioe (Appellant) Britney Kraus Real Estate Pty Ltd (Respondent) Representation: Appellant(Self Represented with interpreter) Respondent (Self Represented) File Number(s): AP 20/40596 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: N/A Date of Decision: 21 July 2020 Before: S Sutherland, General Member File Number(s): COM 19/55518 and COM 20/13531 REASONS FOR DECISION Introduction 1. This is an appeal from a decision of the Consumer & Commercial Division of the Tribunal published on the 21 July 2020 (which we will refer to as the Decision). The Tribunal was exercising its jurisdiction under the Fair Trading Act 1987, the Property & Stock Agent Regulation 2014 and the Australian Consumer Law (NSW). The Appellant had brought an action against the Respondent alleging breaches by the Respondent of its obligations to the Appellant under an exclusive management agency agreement dated 14 March 2019 (the Agency Agreement). By the Agency Agreement the Appellant constituted the Respondent his agent for the purposes of managing a property owned by the Appellant which had been leased to tenants under a residential tenancy agreement. 2. As the Decision records, the Appellant alleged that the Respondent had breached the terms of the Agency Agreement and had acted outside the authority provided to the agent under that agreement in the context of undertaking repairs to the leased property, ordering replacement goods and, in addition, that there had been the loss of a prospective tenant due to the misleading and deceptive conduct of the Respondent. 3. The Decision records that there were eight separate claims against the Respondent, one of which was withdrawn. Each of the remaining seven claims was dismissed and the Appellant's application was dismissed. Notice of Appeal 1. The form of the Notice of Appeal filed by the Appellant requires grounds of appeal to be included. In this case, the Appellant stated that he was "appealing that my evidences be looked at one more time". 2. The Notice of Appeal also submitted that the Decision was against the weight of evidence in that the evidence all pointed to mismanagement and inconsistencies of responses by the Respondent. 3. The Notice of Appeal did not identify any errors of law. Reply to Appeal 1. The Respondent has filed a Reply to Appeal by which the Respondent states that it supports the Decision of the Tribunal to dismiss the Appellant's application. Submissions 1. The Appellant filed documents in support of the appeal but the Appellant's submissions were oral made during the hearing of the appeal. Similarly, the Respondent filed documents (namely correspondence and associated material) in opposition to the appeal and its submissions were oral provided at the appeal hearing. Consideration 1. Appeals from decisions made in the Consumer & Commercial Division of the Tribunal are regulated by s 80 of the Civil & Administrative Tribunal Act 2013 (NSW) (the NCAT Act) and by cl 12 sch 4 of the NCAT Act. Essentially, that means that one can appeal as of right on a question of law or with leave on the basis set out in cl 12. Clause 12 provides: 12 LIMITATIONS ON INTERNAL APPEALS AGAINST DIVISION DECISIONS (1) An Appeal Panel may grant leave under section 80(2)(b) of this Act for an internal appeal against a Division decision only if the Appeal Panel is satisfied the appellant may have suffered a substantial miscarriage of justice because-- (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. In this case it is convenient to follow the approach contained in the Decision by dealing with each of the claims made by the Appellant against the Respondent.. We will deal with them each in the following paragraphs. Dishwasher 1. This claim concerns the Appellant's assertion that the agent replaced a dishwasher in circumstances where the Appellant had only authorised repair. The Tribunal found that the email correspondence showed that the agent had authority to replace the dishwasher. We were taken to emails which recorded that the Respondent said that the dishwasher could not be repaired and was replaced and a further email by which the Appellant thanked the Respondent. In our view the finding by the Tribunal (that the Respondent had authority to replace the dishwasher) was available on the evidence. Although the authority may have post dated the actual replacement the Appellant's email thanking the Respondent constituted approval. The Decision does not display any error of law and nor is there any basis for giving leave to appeal under cl 12. There is no assertion, nor evidence, to suggest that the Appellant suffered financially by reason of the Decision to replace the dishwasher. Rubbish Removal 1. This concerns the Appellant's assertion that the Respondent incurred an expense of $980 in removing rubbish left by the tenants. The Tribunal found that the Respondent advised the Appellant on 13 August 2019 that the cost of the rubbish removal would be claimed against the tenant's bond. The Tribunal found that the Appellant thanked the Respondent by return email. The thrust of the Appellant's submission is that the Respondent should have utilised the free rubbish removal service offered by the local council and that would have had the effect of preserving a portion of the bond to cover the Appellant's other claims. In our view, the Tribunal made no error in determining that the Respondent's email of 12 August indicating that the Respondent had arranged for the rubbish to be removed and the Appellant's response of the same date thanking the Respondent, constituted authority for the Respondent to proceed in the way advised. The Tribunal found that the Respondent had acted with reasonable skill and care. There was no evidence to suggest that that conclusion was in error. There was no evidence that the fact that the bond had been reduced led to the Appellant suffering financial loss not recoverable from the tenant. The Decision does not display any error of law and nor is there any basis for giving leave to appeal under cl 12. Claim for Break Lease Fee 1. The Decision records that the Appellant had a claim against the departing tenants requiring them to pay a break lease fee. Had the tenancy agreement provided for a term of 12 months the Appellant's claim against the tenants would have been equivalent to six weeks rent. However, the tenancy agreement was for six months and, as a consequence, the Appellant's claim against the tenants was limited to the equivalent of four weeks rent. The Appellant's assertion was that the Respondent should not have entered into a tenancy agreement with the tenants providing for a term of six months because the tenants already had an agreement which provided for a term of 12 months. In the Decision the Tribunal found that the Managing Agency Agreement authorised the Respondent to let the premises for a period of six months. The Decision records that there was a controversy concerning the authenticity of a tenancy agreement containing the provision for 12 months. The Tribunal found that the Appellant had the onus of proving that the tenants had entered into the 12 months agreement and had failed to do so. The Tribunal found that, given the limit on the agent's authority, it was appropriate for the Respondent to have entered into a residential tenancy agreement with the tenants limited to six months. In our view, there is no error of law in the Tribunal's Decision and nor is there any basis for giving leave under cl 12. The Handover of Keys 1. The Appellant alleged that the Respondent was dilatory in handing over keys to the new agent on or about 4 September 2019 following the termination by the Respondent of the Agency Agreement. The Tribunal found that the evidence included a receipt from the new agent acknowledging collection of the keys on 5 September and as a result dismissed this claim. 2. Again we see no error of law in the Decision and nor do we see that there was a ground under cl 12 with respect to this claim. Loss of Rent Due to Loss of Prospective Tenant 1. The Decision records that the Appellant claimed that he lost a prospective tenant as a consequence of misleading and deceptive conduct of the Respondent concerning the application of a prospective tenant. The emails relevant to the interest of the prospective tenant included the fact that the tenant did not proceed. They were referred to in the Decision and the Tribunal found that the Respondent did not convey a message to the Appellant that was false. The Tribunal found that the Respondent's conduct was not misleading or deceptive. 2. Again the Appellant put nothing to us which would support a finding that the Tribunal erred with respect to this claim. We discern no error of law and no basis for giving leave under cl 12. Unauthorised Kitchen Flooring and Associated Expenses. Claim for Loss Due to Lack of Repair 1. These two claims were dealt with jointly in the Decision and the Tribunal found that the Respondent was authorised to carry out repairs in an email from the Appellant dated 26 March 2019. During the appeal hearing the Appellant submitted that his complaint against the Respondent was that the Respondent did not act punctually and by reason of the delay the work that was conducted was not as effective as it should have been. This submission was not supported by any evidence to which we were taken during the appeal hearing. In particular, even if the Respondent had delayed in having the repairs undertaken, there was no evidence to support the assertion that the delay either made the position worse, or more expensive, or that the work conducted was not effective. 2. Again, we discern no error of law in the Decision concerning this claim and nor do we discern a basis for giving leave under cl 12. Conclusion 1. As stated, the Decision displays no error of law nor any ground warranting leave pursuant to the provisions of cl 12. With respect to clause 12 the Appellant's submissions during the hearing of the appeal were essentially to the effect that the Tribunal had not given appropriate weight to all of the evidence. In our view that submission is not supported by the reasoning contained in the Decision, nor by the material we were referred to. 2. We make the following order: 1. Appeal dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 December 2020