Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahendran v Price Family Investments Pty Ltd trading as Ben Price Estate Agents [2021] NSWCATAP 340 Hearing dates: 14 September 2021 Date of orders: 29 October 2021 Decision date: 29 October 2021 Jurisdiction: Appeal Panel Before: M Harrowell, Deputy President S Goodman SC, Senior Member Decision: The appeal is dismissed. Catchwords: LEASES AND TENANCIES – termination of tenancy following breaches – liability of agent for damage to property and loss of rent suffered by landlord – duty of care ADMINISTRATIVE LAW – jurisdiction of the Civil and Administrative Tribunal under Part 6A of the Fair Trading Act – time when cause of action first accrues – proceedings out of time – no power to extend time Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Justice Centres Act 1983 (NSW) Fair Trading Act 1987 (NSW) Property and Stock Agents Act 2002 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 Christie v Purves & 2 Ors [2007] NSWCA 182 Collins v Urban [2014] NSWCATAP 17 Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 Texts Cited: Nil Category: Principal judgment Parties: Shalini Mahendran (Appellant) Price Family Investments Pty Ltd trading as Ben Price Estate Agents (Respondent) Representation: Appellant (Self Represented) T Searle (Agent) (Respondent) File Number(s): 2021/00192977 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 08 June 2021 Before: C Pirina, General member File Number(s): COM 21/14487 REASONS FOR DECISION Introduction 1. On 8 June 2021 the Tribunal dismissed application COM 21/14487 being proceedings brought by the appellant (landlord) against its real estate agent Price Family Investments Pty Ltd trading as Ben Price Estate Agents (agent), the respondent in this appeal. 2. The agent had been appointed under an Exclusive Management Agency Agreement dated 20 September 2010 (agency agreement). Through the agent, the landlord had entered into two residential tenancy agreements. The first was with Michael Grant and Sandy Harrison (first tenancy agreement). The second was with Dean Harrison and Katrina Erueti (tenants) dated 7 August 2014 for a six month period from 15 August 2014 to 14 February 2015 (second tenancy agreement). 3. The second tenancy agreement was apparently terminated by order of the Tribunal in February 2015 for non-payment of rent. A warrant for possession was issued. However, before the warrant was executed the tenants vacated the premises on about 4 March 2015. We note these dates, based on the material provided to us, are somewhat imprecise as no direct evidence was provided in the form of the orders of the Tribunal made in 2015 or appropriate witness statements. For reasons that will become apparent the lack of precision is immaterial. 4. The agency agreement was subsequently terminated on about 9 March 2015. 5. In her application, the landlord claimed compensation of $15,000.00 from the agent on the basis that the agent "did not adequately support the [appellant] as Landlord. [The agent] allowed two tenants to reside in the property without adequately filtering whether they could pay their rent on time and maintain the property". 6. In respect of the second tenancy agreement the landlord said the agent had "not upheld their Duty of Care to [the landlord] allowing both tenants to complete the Residential Application Form without sufficient evidence that they could pay the stated rent for instance, allowing one tenant to leave the length of their employment blank". The amount of compensation sought was said to be "the cost of damage to the property combined with the cost of the necessary repair work. The amount claimed of $15,000.00 was in part said to arise because the landlord "had to forego income as the compensation is from six years ago". 7. In dismissing the application the Tribunal said: Having considered the material before it the Tribunal is not satisfied [at the civil standard of proof] that the grounds required to make the orders sought has been met. The Application also appears to be out of time. The Notice of Appeal, Grounds of Appeal and the hearing of the appeal 1. The landlord filed a Notice of Appeal on 5 July 2021. The appeal was filed in time. 2. The Notice of Appeal raised the following matters: 1. New information had been given concerning Ben Price Real Estate. 2. The landlord was unaware of a company called "Stockton Grange" who apparently acquired the agency business. 3. The agent's insurance is "liable to pay damages" and the landlord had not been provided from the agent about the availability of "landlord insurance". Reference was made to the landlord being made aware of the possibility of insurance through a television program known as A Current Affair. 4. The agent had failed in its duty of care by failing to ensure the tenants had correctly filed in the application form and the agent acted in an unprofessional manner. 1. Insofar as the issues raised grounds other than questions of law, the landlord sought leave to appeal. 2. The agent filed a Reply to Appeal. An entity called Stockton Grange indicated in the reply that it had "purchased Price Family Investments in 2016". As the corporation Price Family Investments Pty Ltd continued in existence, the change of shareholding/ownership is irrelevant to the disposition of this appeal. However, we note at the time of acquisition the landlord was no longer part of the portfolio of landlords represented by the agent and the agent has no records relating to the particular tenancy. On this last point the agent said s 104 of the Property and Stock Agents Act 2002 (NSW) only required it to keep records for 3 years. The agent also noted that the claim relates to events which occurred six years previously. 3. As to the complaints actually made, the agent said that "an agent cannot guarantee the tenancy is going to go smoothly in accordance with the Residential Tenancy Act". As to the absence of insurance, the agent said that an agent has no liability for any financial loss if the landlord does not have relevant insurance in place. 4. The landlord filed evidence and submissions in support of the appeal. The agent only filed the Reply to Appeal. 5. Both parties made oral submissions at the hearing of the appeal. Those submissions included a lengthy submission from the landlord about enquiries made with the Department of Fair Trading (Department) and a mediation that had occurred with the agent under the Community Justice Centres Act 1983 (NSW) (CJC Act). 6. At the hearing of the appeal we raised a number of issues for the parties to address. These included: 1. That the proceedings were a consumer claim within the meaning of s 79E of the Fair Trading Act 1987 (NSW) (FT Act) and by reason of s 79L of that Act the Tribunal had no jurisdiction to determine the claim because it was out of time; and 2. In so far as there was a mediation concerning the matters in dispute, there was no agreement in writing before the Tribunal concerning any settlement reached at that time. In this regard, reference was made to the need for any agreement to comply with s 23(3) of the CJC Act before it could be enforceable. 1. On the issue of time, the landlord said she had delayed in commencing proceedings because of what she had been told by the Department and what was said at the mediation concerning the agent listing the tenants on the database under Part 11 of the Residential Tenancies Act 2010 (NSW) (RT Act). She said she was told that this process may result in the tenants making good her losses and that the agent would in some way be responsible for this process. 2. The agent said the issue of the mediation had not been raised at the original hearing and that these issues had not been discussed at that time. 3. As the landlord sought to rely on what happened at the original hearing and had failed to comply with directions to provide a copy of the sound recording and transcript of the relevant parts, we made directions for the transcript to be filed and served by the landlord. The agent did not oppose this course. Consideration 1. There is a right to appeal on a question of law otherwise, leave to appeal is required: s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). The grant of leave is regulated by Sch 4 cl 12(1) of the NCAT Act, the principles for the grant of leave being set out in Collins v Urban [2014] NSWCATAP 17. 2. The first issue to consider is whether the Tribunal had jurisdiction to determine the original application. This raises a question of law. No jurisdiction as the application was out of time 1. The claim against the agent is a consumer claim within the meaning of s 79E of the FT Act. 2. Section 79L of the FT Act provides as follows: (1) The Tribunal does not have jurisdiction to hear and determine a consumer claim if any of the following apply— (a) the cause of action giving rise to the claim first accrued more than 3 years before the date on which the claim is lodged, ... 1. In the present case, the cause of action is not defined with any precision other than by reference to a breach of duty by the agent. It is therefore necessary to identify the cause of action brought by the landlord in order to determine when the 3 year period under s 79L commences: see eg Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 2. Insofar as the duty is cast as a breach of contract claim, the cause of action must have accrued no later than the termination of the agency agreement in March 2015. This is because any breach of contract must have occurred before the agency agreement was terminated. 3. Insofar as the claim is made for a breach of duty of care, either arising under in tort or under s 60 of the Australian Consumer Law (NSW) (ACL) (which imposes a "guarantee as to due care and skill") any cause of action arises upon the suffering of loss of damage by the landlord. 4. In this regard, a claim for damages for breach of a consumer guarantee is similar to a claim for damages in respect of misleading and deceptive conduct. In Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley), the plurality of the High Court (Mason CJ, Dawson, Gaudron and McHugh JJ) held that a cause of action for such claims does not accrue until loss and damage arising from the contravention is sustained. At 525 their Honours said (footnotes omitted): The statutory provisions By virtue of s.82(2) of the Act, the period of limitation begins to run at the time when the cause of action under s.82(1) accrues. As loss or damage is the gist of the statutory cause of action for which s.82(1) provides, the cause of action does not accrue until actual loss or damage is sustained. The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E and M. H.) Pty. Ltd., except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so. In the context of the Act, the concept of loss or damage, like the concept of causation, must be applied in a wide variety of situations because the contraventions of Pts IV and V which give rise to causes of action under s.82(1) are diverse. 1. Similarly, the gist of the action in a claim in tort under the common law is damages, the cause of action accruing on the suffering of damage. In Christie v Purves & 2 Ors [2007] NSWCA 182, Ipp JA said at [40] (Beazley P and Campbell JA agreeing): The general rule can be stated as follows. For economic loss (as with other forms of damage) to be sustained, there has to be some actual, measurable damage that is beyond what can be regarded as negligible. While prospective loss, alone, is not enough, a cause of action of negligence will accrue when the plaintiff first suffers any actual damage of the kind described. The cause of action will then be regarded as having accrued, even if some of the plaintiff's damages are prospective. The plaintiff may then claim for the actual damages that have been incurred and should quantify and claim for the prospective damages (such as, for example, future loss of profits). This, for example, is what occurred in Perre v Apand Pty Limited (1999) 198 CLR 180. These propositions are well-established and are manifest from Commonwealth v Cornwell (at 152 to 153, [16] to [18]), Wardley Australia Limited v Western Australia (1992) 175 CLR 514 (at 530 to 531), Hawkins v Clayton (1988) 164 CLR 539 (at 561 and 588), Winnote Pty Ltd v Page [2006] NSWCA 287 (at [40] to [41]), Cheney & Wilson v Duncan (2001) 34 MVR 28 (at 32, [24] to [26]), Scarcella v Lettice (2000) 51 NSWLR 302 (at 306), Law Society v Sephton & Co (a firm) [2006] 2 WLR 1091 (at 1108, [60]), Cartledge v E Jopling & Sons Ltd (at 772). 1. In the present case, any loss or damage flowing from such breach of duty by the agent arising under the ACL or at common law in connection with the first or second tenancy agreement was first suffered no later than March 2015 when the second tenancy agreement was terminated and the tenants vacated the premises. This is because once the premises had been vacated and the tenants had left, any loss arising from the tenants' damage to the premises or failure to pay rent caused by the agent's mismanagement of the tenancy or breach of duty had been suffered and could reasonably be ascertained no later than March 2015. 2. This position is not affected by the fact that damages may have been caused by Michael Grant or Sandy Harrison during the first tenancy agreement. In this regard we note the second tenancy agreement provided that: The tenant/s agree that by taking over the lease from Michael Grant & Sandy Harrison they are agreeing to take over the original Condition Report dated 05/10/2012, any damage caused Michael or Sandy will become responsibility (sic) of Dean Harrison & Katrina Erueti. 1. If there were no such term in the second tenancy agreement, any claims arising from the agent's conduct in connection with the first tenancy agreement would have accrued prior to March 2015, and in any event no later than August 2014 when Michael Grant and Sandy Harrison vacated the premises. 2. In addition, once these losses were suffered, any damage suffered because of the failure by the agent to advise in connection with procuring "landlord insurance" also crystallised. By this time insurance could not have been obtained to protect the landlord against losses already suffered in consequence of breaches of the residential tenancy agreements. 3. The fact that the extent of any losses might be reduced if a claim was successfully brought against the tenants (if they could be located) does not effect this conclusion. 4. The present proceedings were commenced by application dated 24 February 2021 filed on 29 March 2021. 5. As stated above, s 79L of the FT Act requires an application to the Tribunal must be made 3 years of when the cause of action giving rise to the claim arose. Regardless of whether the cause of action was in contract, tort or under the ACL, any claim accrued no later than March 2015. Consequently, any proceedings in this Tribunal were required to have been commenced by March 2018. 6. While the Tribunal has power under s 41 of the NCAT Act and other enabling legislation, that power does not permit the Tribunal to confer jurisdiction in circumstances where the enabling legislation limits the jurisdiction by reference to time. 7. The landlord separately submitted that she had been advised by the Department as to her rights and that there was a need to await any outcome of the process of listing the tenants on the database which might result in the tenants making good her loss. There is no evidence from the Department about this advice or the circumstances in which it was given. There was no evidence concerning the role the agent would play in this process or that the agent had agreed to do so. All we have been provided is submissions in the course of this appeal. 8. Regardless of what the Department may have said to the landlord, these conversations and/or advice given by the Department do not affect the conclusion we have reached that the Tribunal has no jurisdiction to hear the application as it was lodged out of time. 9. Lastly, the landlord relied on conversations said to have occurred during a mediation under the CJC Act. In doing so, the landlord suggested that she did not commence proceedings because of ongoing attempts by her and/or the agent to recover her losses from the tenants. 10. It was not suggested there was any written agreement reached following this mediation concerning any obligation of the agent to pursue recovery action against the tenants or to arrange for listing of the tenants on the database under the RT Act. 11. The landlord submitted the issue of what happened at the mediation under the CJC Act was raised in the proceedings at first instance. In this regard, following directions made at the hearing of the appeal, we were provided with the sound recording of the proceedings at first instance (which was of poor quality) and a typed transcript of parts of the sound recording. 12. The transcript prepared by the landlord states she said in the proceedings at first instance 1. she had "been to a mediation with the Department of Justice" (time mark 6:55) and 2. referred to "the Department of Community and Justice mediation 2016" (time mark 6:59), 3. "DCJ told me I got 6 years from the mediation time 2016t tp (sic) 2017. Because it took a while to get papers from Benprice Real estate agent" (time mark 7:42). 4. "My mediators told within 6 years from the mediation. Because of a friendly relationship way of sorting out" (time mark 8:56). 1. The sound recording provided to the Appeal Panel by the landlord was not able to be played by us. However we obtained a further copy of the sound recording from the Registry which we have reviewed against the transcript we were provided from the landlord. From our review, while reference was made at the hearing at first instance to information the landlord received from third parties, the transcript is not an accurate record of what was said at that hearing. 2. However, this inaccuracy is irrelevant to the disposition of this appeal. 3. Whether or not the issue of conversations with third parties was raised before the Tribunal, the fact remains no written agreement was provided to the Tribunal at first instance or the Appeal Panel concerning any settlement reached at any mediation under the CJC Act. 4. Section 23(3) of the CJC Act provides: Notwithstanding any rule of law or equity, any agreement reached at, or drawn up pursuant to, a mediation session is not enforceable in any court, tribunal or body, unless the parties agree in writing that the agreement is to be enforceable. 1. In the absence of an agreement complying with s 23(3) of the CJC Act, in our view the landlord is not entitled to rely on any agreement reached at the mediation conducted under that Act. 2. Further and in any event, on the information we have been provided, there is no basis to conclude the agent had assumed any obligations following termination of the agency agreement that might otherwise give rise to a fresh cause of action accruing after March 2015 in favour of the landlord. 3. In light of the above, the order made by the Tribunal to dismiss the proceedings was appropriate, but on the basis that the proceedings were out of time. 4. In reaching this conclusion we should note from listening to the sound recording that the Tribunal indicated orally to the parties at the end of the hearing that the proceedings would be dismissed as being out of time, not because there had been a failure to prove the claim. While the Tribunal said that there had been a failure to comply with directions and that no evidence was filed, the primary oral reason for dismissal was that the proceedings were out of time. 5. As the Tribunal had no jurisdiction to hear the original proceedings, it is unnecessary to consider whether the Tribunal was correct in dismissing the application on the basis that the landlord had failed to prove her claim. Orders 1. It follows from the above that the appeal should be dismissed. Therefore the Appeal Panel makes the following order: 1. The appeal is 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: 29 October 2021