Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Merchant v Altitude Real Estate Pty Ltd [2022] NSWCATAP 393 Hearing dates: 22 November 2022 Date of orders: 16 December 2022 Decision date: 16 December 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member D Robertson, Senior Member Decision: (1) Leave to extend time to lodge the Notice of Appeal is refused. Catchwords: APPEAL – lodged out of time – procedural unfairness demonstrated but appeal futile as claim bound to fail Legislation Cited: Australian Consumer Law NSW Civil Administrative Tribunal Act 2013 (NSW) Property and Stock Agents Act 2002 (NSW) Cases Cited: Badenach v Calvert [2016] HCA 18 Collins v Urban [2014] NSWCATAP 17 Gallo v Dawson [1990] HCA 30 Kelly v Szatow [2020] NSWSC 407 Ryan and BKB Motor Vehicle Repairs [2017] NSWCATAP 39 Secretary of Department of Family and Community Services v Smith [2017] NSWCA 206 Yuen v Thom [2016] NSWCATAP 243 Texts Cited: None cited Category: Principal judgment Parties: Rodney Merchant (Appellant) Altitude Real Estate Pty Ltd (Respondent) Representation: Appellant (Self-represented) J Sansom (Agent)(Respondent) File Number(s): 2022/00268502 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: N/A Date of Decision: 05 August 2022 Before: S Hausfeld, General Member File Number(s): COM 22/22545 REASONS FOR DECISION – Ex Tempore 1. In late 2019, the appellant sought to sell his lot in a strata development described as an over 55's apartment. He appointed the respondent as his selling agent. Marketing commenced in earnest in early 2020 and included an open house being conducted on 18 January 2020 in the absence of the appellant as he did not remain at the premises for the open house. The open house was reportedly not well attended, however, an offer was made to purchase the property for the sum of $287,000. In accordance with advice given to him by an employee of the respondent, the appellant rejected that amount. 2. This appeal centres around what occurred next. The appellant's case at first instance and on appeal is that a second potential buyer, the "eventual buyer", made an offer of $290,000 which was only made orally and both conveyed to him by an employee of the respondent and withdrawn on the same day. The eventual buyer of the property subsequently bought it for $270,000, after an apparent downturn in the market. Various members of the eventual buyer's family inspected the property at different times. It seems to be uncontroversial that this commenced shortly after the $287,000 offer was made. 3. One aspect of concern to the eventual buyer appears to have been the question of whether their son, who was under the age of 55, could live in the property. It appears that the resolution of that issue was the decisive trigger for them to purchase the property. 4. The appellant says that when the $270,000 offer which he accepted was conveyed to him by the respondent, he was not told that it was from the same person who had previously offered $290,000. He says that, as a result, he has suffered a loss of $20,000 given that the commission he agreed to pay the respondent was in a fixed sum. The respondent maintains that no such offer of $290,000 was ever formally made or conveyed to the appellant but accepts that members of the eventual buyer's family expressed interest in the premises after the $287,000 offer had been made. The concession goes no further than that. 5. The appellant commenced his proceedings in the Consumer and Commercial Division, claiming the $20,000 shortfall on sale. He relied upon an allegation that the respondent had breached an obligation to him under the Australian Consumer Law NSW or the Property and Stock Agents Act 2002 (NSW), or otherwise under the general laws of agency. His application was heard and dismissed on 5 August 2022. 6. Relevantly, despite directions for the lodgement of evidence in support of the application, the appellant lodged very little. He completed a commercial list application wherein he made the nature of his claim relatively clear. He also attached a two and a half page summary of his allegations and a copy of the letter of demand he had instructed solicitors to send the respondent before the proceedings were commenced. There was no signed statement of the appellant in any narrative form, clearly setting out his evidence as opposed to the allegations he made. There was no evidence from the eventual buyer or relating to the eventual buyer's willingness to enter into a binding contract in writing to pay an amount exceeding $270,000. 7. In that context, the Tribunal's hearing was conducted in a question and answer format led by the member, which we note occurred during the changes made to the way hearings in the Consumer and Commercial Division were conducted as a result of the COVID-19 pandemic. 8. An internal appeal to the Appeal Panel does not simply provide a losing party in the tribunal at first instance with the opportunity to run their case again, and we cite Ryan and BKB Motor Vehicle Repairs [2017] NSWCATAP 39 at [10]. 9. To succeed in an appeal, the appellant must demonstrate either an error on a question of law which, except in an appeal from an interlocutory decision, may be argued as a right, or that permission, that is leave to appeal, should be granted to bring the appeal: s 80(2) of the Civil Administrative Tribunal Act 2013 (NSW) which we will call the NCAT Act. 10. The principles concerning an application for leave to appeal under the NCAT Act are well established. They are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. 11. They are the same principles applied by the courts, and it is enough as a summary to refer today to Secretary of Department of Family and Community Services v Smith [2017] NSWCA 206 where the Court said, at [28] with the citations omitted that: Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong. 1. In respect of decisions from the Consumer and Commercial Division of this nature, there is a further qualification to the possible grant of leave which, relevantly in respect of leave based on further evidence, indicates that the Tribunal may only grant leave if first satisfied that the appellant may have suffered a substantial miscarriage of justice on the basis that it was significant new evidence which has arisen, being evidence it was not reasonably available at the time when the proceedings under appeal were dealt with: NCAT Act, Sch 4 cl 12(1)(c). 2. We may decide to conduct the appeal as a new hearing if we are satisfied the grounds of appeal warrant it: NCAT Act, s 80(3)(a). A new hearing under s 80(3) of the NCAT Act is a hearing de novo or from the beginning: Yuen v Thom [2016] NSWCATAP 243 at [17]. 3. In Kelly v Szatow [2020] NSWSC 407, the Court summarised the principles that apply where an extension of time to lodge an appeal is required. Relevant considerations include the length of delay and any associated reasons for such, the strength of the appellant's case and consideration of whether the respondent would be prejudiced by granting an extension to lodge the appeal. The appellant bears the onus to demonstrate that strict compliance with the timeframe would work an injustice: Gallo v Dawson [1990] HCA 30. 4. Here, the appellant's appeal was lodged approximately four days late. His explanation, contained in the notice of appeal, is that he was away from his residence for part of the relevant period, with no access to electronic communication. No other evidence in support of that allegation has been provided, despite directions being made in respect of lodgement of documents in the appeal. 5. The respondent opposes an extension of time. Both parties lodged further evidence which they apparently intended to seek leave to rely upon, albeit that none of it can be said not to have been reasonably available at the time the decision was made, such as to engage cl 12(1)(c) to Sch 4 of the NCAT Act in respect of being a foundation for an application for leave to appeal. 6. In the Notice of Appeal, the appellant simply makes discursive comments about his view on the outcome of the decision at first instance, although he does make an allegation that he was not afforded procedural fairness. Far more directed submissions are contained in his written submissions lodged in accordance with the Appeal Panel's directions and dated 31 October 2022. Those submissions go to some 27 paragraphs concerning the errors the tribunal allegedly made and the basis for the submissions that they ought lead to a successful appeal. 7. There is, however, a very simple answer to whether the appeal should proceed or not and it does not require us to have recourse to each of the allegations of error made by the appellant. Before we deal with that decisive issue, though, we should indicate so that it is clear that we have not overlooked the appellant's concerns that our review of the transcript of the hearing provided by the respondent leads us to conclude that the hearing at first instance was unfortunately conducted in a way which denied the appellant procedural fairness. It is enough as a summary to indicate that the member's questioning, despite being conducted in difficult circumstances, does not in our view allow each party a proper opportunity to ensure that their evidence and position was made clear. 8. If any practical injustice could be demonstrated then an extension of time would be warranted, given the relatively short delay and the lack of specific prejudice it would likely cause the respondent. However, as an extension of time can only be granted where a failure to do so would lead to an injustice to the appellant (Gallo v Dawson (1990) HCA 30; 93 ALR 479, per McHugh J at [2]), that brings us back to the decisive issue in respect of the appeal we mentioned earlier. 9. The decisive issue, which was adverted to in the tribunal's oral reasons, is that the appellant did not put any evidence before the tribunal at first instance, or before us, to demonstrate that he has suffered a loss of $20,000, even if he could satisfy us that his assertions as to the factual underpinnings of his claims should be accepted and that the respondent failed in a relevant duty to him in any of the material ways which he asserts. 10. What the appellant's case overlooked at first instance and overlooks on appeal, is that he has not provided any persuasive evidence that had he known that the eventual buyer had, on his case, previously offered $20,000 more, he could have persuaded them to increase the offer back to its former level or any higher amount. Nor does his evidence establish that he had any other option by which he could have obtained a better result, such as by recommencing negotiations with the person who had previously offered $287,000. 11. To demonstrate that the respondent's conduct had caused him loss in the way he pleads it, the appellant would need to have demonstrated that, firstly, through some method he could have bound the eventual buyer to their original offer or, secondly, with knowledge that they had offered the higher amount previously, he could have convinced them to reinstate the original offer or some other offer higher than $270,000. There is nothing before us which could even lead to an inference in that regard which favours the appellant. 12. As was noted in Badenach v Calvert [2016] HCA 18 at [39] and [40] by Justices French, Kiefel and Keane (with citations omitted): …It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided. It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded. The respondent has not established that there is a substantial prospect that the client would have chosen to undertake the inter vivos transactions. Therefore, the respondent has not proven that there was any loss of a valuable opportunity. 1. An analogous position exists here. Given that the appellant was directed to be in a position to put before the Appeal Panel all of the evidence he might rely upon if we decided to conduct the appeal by way of a new hearing and he has confirmed today that he has no more evidence to provide, that situation is fatal to his appeal. 2. There is no utility to us granting an extension of time, as the appellant cannot succeed in his original claim. For that reason, leave to extend time to file the notice of appeal is refused. 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: 16 December 2022