Express Clearances Pty Ltd v Breakfast Point Realty Pty Ltd [2022] NSWCATAP 39

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Express Clearances Pty Ltd v Breakfast Point Realty Pty Ltd [2022] NSWCATAP 39 Hearing dates: 01 February 2022 Date of orders: 15 February 2022 Decision date: 15 February 2022 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President G Curtin SC, Senior Member Decision: (1) Appeal upheld. (2) The proceedings are remitted to the Consumer & Commercial Division of the Tribunal for hearing before the same Member for the purposes of determining whether the Appellant is entitled to compensation (and if so in what amount) in light of the finding that the Respondent did not provide its services with due care and skill. (3) Subject to any order to the contrary made in the Consumer & Commercial Division, the parties should be free to file and serve additional evidence. (4) If the same Member is unable to hear these proceedings on remittal the proceedings should be heard by another Member of the Consumer & Commercial Division. Catchwords: APPEAL- consumer claim against a real estate agent managing residential rental premises – failure to refer to principal for instructions- breach of agreement and of obligation to provide service with due care and skill. Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 NSW Fair Trading Act 1987 NSW Residential Tenancies Act 2010 (NSW) Cases Cited: Nil Category: Principal judgment Parties: Express Clearances Pty Ltd (Appellant) Breakfast Point Realty Pty Ltd (Respondent) Representation: D Sorbara (Director of the Appellant) A Beveridge (Director of the Respondent) File Number(s): 2021/00319194 Publication restriction: Nil Decision under appeal Court or tribunal: New South Wales Civil & Administrative Tribunal Jurisdiction: Consumer & Commercial Division Citation: Not applicable Date of Decision: 22 October 2021 Before: K Timbs, Tribunal Member File Number(s): GEN 21/00440