Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mahendran v NAS Property Services Pty Ltd [2021] NSWCATAP 379 Hearing dates: 11 November 2021 Date of orders: 23 November 2021 Decision date: 23 November 2021 Jurisdiction: Appeal Panel Before: The Hon Cowdroy AO QC ADCJ, Principal Member K Ransome, Senior Member Decision: The Appeal Panel orders that: (1) Leave to bring the appeal is refused; (2) The appeal is dismissed. Catchwords: APPEALS - consumer claim by property owner against property agent alleging failure to fulfil agency agreement – cause of action arising more than three years prior to the commencement of proceedings – action barred by limitation provisions contained in Fair Trading Act 1987 (NSW). Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Category: Principal judgment Parties: Shalini Mahendran (Appellant) NAS Property Services Pty Ltd trading as A Plus Realty Merrylands (Respondent) Representation: Appellant (Self Represented) Nassif Semaan (Agent for the Respondent) File Number(s): 2021/00254445 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 18 August 2021 Before: C Marzilli, General Member File Number(s): COM 21/14974 REASONS FOR DECISION 1. By notice of appeal dated 5 September 2021 the appellant appeals the decision of the Tribunal delivered on 18 August 2021. The proceedings involved an alleged failure by the appellant's agent to properly manage a townhouse ("the property") owned by the appellant and the proceedings are brought pursuant to the provisions of the Fair Trading Act 1987 (NSW). 2. The appellant's property is located in a Sydney suburb. In the relevant period, namely 2015 to 2016, the property was managed by the respondent pursuant to an agency agreement made between the appellant as owner and the agent. 3. The property was leased subject to the terms of the Standard Form Residential Tenancy Agreement for a period of 12 months commencing on 25 March 2015 and ending on 22 March 2016. The tenant was evicted from the premises due to non-payment of rent in December 2015. The eviction was instituted by the respondent. 4. An outgoing condition report was prepared by the respondent on 6 January 2016. The condition report revealed that the premises had been left in a poor state of repair. Records supplied for the purposes of this appeal assert that the appellant's claim, including interest at 5.21% (the rate of interest is not explained), amounted to $24,785. After the tenancy had ended, the appellant recovered the rental bond of $1,680. The appellant also was successful in receiving an amount of $12,275 by way of an insurance claim in respect of loss of rent and for the cost of repairs necessary to the property leaving a balance of $10,830. 5. The appellant commenced proceedings against the respondent alleging a breach of the Fair Trading Act on the part of the respondent in failing to properly manage the property; by failing to act with due care and skill as an agent by omitting to recover rent arrears from the tenant and in failing to claim compensation for damages done to the premises by the tenant. The Tribunal accepted that the claim was a consumer claim within the meaning of the Fair Trading Act. Tribunal decision 1. The Tribunal found that the cause of action available to the appellant accrued during 2016 but that the consumer claim was not commenced until 29 March 2021. It accordingly found that the limitation periods contained in the Fair Trading Act applied. Section 79L of that Act provides: (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 three years before the date on which the claim is lodged, (b) the goods or services to which the claim relates were supplied (or, if made in instalments, were last supplied) to the claimant more than 10 years before the date on which the claim is lodged. 1. The Tribunal held: "In this matter the cause of action accrued during 2016 which is more than three years before this Application was commenced on 29 March 2021. In the alternative, the Applicant provided no evidence to support her claim that the Respondent had not performed his duties as an agent with due care and skill. The Applicant asserted this was the case but no particulars or proof was put forward that neither supported those claims nor were any particulars of loss or damage set out. The quotation dated 12 May 2016 does not demonstrate that the replacement of the tub, door, shower screen grid and front door entrance set was attributable to an act or omission of the Respondent." 1. The grounds of appeal, not being prepared by a lawyer, challenge the Tribunal's decision. However no specific ground is nominated. Instead, the grounds generally assert that the wrong decision was made. Reply 1. The respondent has not filed a reply, but has filed a submission dated 4 November 2021. The submission itemises the claims made by the appellant. The respondent submits that the appellant has suffered no loss because she has been reimbursed the rental bond and has received an amount in respect of the losses claimed. Nature of appeal 1. This appeal has been instituted under s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) ("the Act"). It is an internal appeal as provided by s 80(2)(b). Pursuant to Sch 4, cl 12(1) to the Act, an Appeal Panel may grant leave under s 80(2)(b) of the Act only if it is satisfied that 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 Collins v Urban [2014] NSWCATAP 17, the Appeal Panel referred to the requirements for a grant of leave and at [84] said: "…(1) in order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision-maker was arguably wrong in the conclusion arrived at or that there was a bona fides the challenge to an issue of fact: BHP Billiton Ltd v Dunning (2013) CA NSW 421 at [19] and the authorities cited their; Nakad v Commissioner of Police, NSW Police Force (2014] NSWCATAP 10 at [45); (2) ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; orc (c) an injustice which is reasonably clear, in the sense of going merely beyond what is arguable or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 1. In summary it must be demonstrated that an appellant may have suffered a substantial miscarriage of justice because the decision of the tribunal was not fair and equitable; or the decision under appeal is against the weight of evidence; or new evidence has arisen that was not reasonably available at the time of the hearing. Appellant's submissions 1. The notice of appeal reiterates the fact that the appellant's property was damaged by the tenant and that the respondent failed to collect rent from the tenant and failed to collect records. It is not possible to identify any specific submissions other than a claim that an injustice has been done to the appellant by the agent. Respondent's submission 1. The written submission received from Mr Nassif Semaan on behalf of the respondent referred to above states: "This case has been going into Tribunal more than 2 times. And it has been dismissed for the same reasons." 1. The submission sets out a list of the damages claimed by the appellant with the offsets for the bond and insurance monies received by the appellant. The submission claims that: 1. the appellant has overcharged the cost of repairs; 2. rental bond monies of $1,680 were paid to the appellant and an insurance payout in respect of the claimed losses of $12,275 was received by the appellant; 3. the appellant in fact has received more than the amount of her claim; 4. the appellant has already received an overpayment of $2,025; 5. accordingly the respondent submits that the appellant has suffered no loss. Observations 1. It is apparent from the decision under review that the Tribunal found that s 79L of the Fair Trading Act operated to prevent the applicant succeeding in her claim. All of the evidence before the Tribunal established that any loss or damage was sustained in early 2016. Accordingly, since more than three years had elapsed since the claim first accrued up until the appellant commenced proceedings against the agent on 29 March 2021, s 79L operated as a bar to the proceedings succeeding. 2. Both the appellant and the respondent, by its agent, Mr Semaan, provided submissions by telephone during the Appeal hearing. Such submissions established that the appellant became aware of the extent of the loss and damage from the condition report dated 6 January 2016. The loss and damage included arrears of rent and also the cost of repairs. The appellant did not dispute such facts. 3. The appellant had sufficient detail to lodge a claim for refund of the rental bond which she received in March 2016. The appellant also lodged a claim against her insurer under her landlord's insurance in March 2016 and payment was made by the insurer in April 2016. 4. Thereafter there was no communication between the appellant and the respondent until the appellant contacted Fair Trading NSW in about October 2020 and subsequently commenced proceedings in the Tribunal in March 2021. At that time the appellant alleged that the respondent had failed to properly manage the property in breach of the agency agreement made between them, thereby breaching the provisions of the Fair Trading Act. 5. On the undisputed facts, the appellant became aware of the loss and damages she allegedly sustained in January 2016 and was fully aware of the extent of her losses by March 2016 when she made her insurance claim and received the rental bond. As a result, the cause of action against the agent would have accrued during 2016. 6. Accordingly it must follow as a matter of law that the appellant's claim has been extinguished by virtue of the operation of s 79L of the Fair Trading Act. That Act requires that any claim be bought within three years of the cause of action accruing. 7. The Tribunal committed no error in making its findings. The appellant must accept that, irrespective of the evidence which she seeks to produce, she has agreed that she was fully aware of the loss and damages by March 2016 and did not commence proceedings until March 2021. The operation of the Fair Trading Act prevents her from now recovering any losses from the respondent. 8. As such, there is no substantial injustice demonstrated. The appellant's claim is statute barred. The Appellant did not bring her claim within the specified time limits and it follows that the Tribunal has no jurisdiction to grant the relief claimed. The Tribunal does not grant leave to bring the appeal. Orders 1. Leave to bring the appeal is refused; 2. 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: 23 November 2021