Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cookson v Buyers Club Pty Ltd [2022] NSWCATCD 184 Hearing dates: 9 September 2022 Date of orders: 26 September 2022 Decision date: 26 September 2022 Jurisdiction: Consumer and Commercial Division Before: H Woods, Senior Member Decision: 1. The respondent is to pay to the Applicant the sum of $21,490.00 within 28 days. Catchwords: CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters CONTRACTS — Construction and interpretation — Parol evidence rule — Subsequent conduct Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Fair Trading Act 1987 (NSW) Cases Cited: Franklins Pty Ltd v Metcash Trading Limited (2009) 76 NSWLR 603 Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 Category: Principal judgment Parties: Paul Cookson (Applicant) Buyers Club Pty Ltd (Respondent) Representation: Applicant: In person Respondent: Ms S Mitri (Director) and Mr A Hallak. File Number(s): COM 22/11167 Publication restriction: Nil REASONS FOR DECISION INTRODUCTION 1. This dispute concerns a claim by the applicant arising out of the applicant having engaged the respondent to locate a house and land package. 2. The applicant appeared for himself. Ms Samara Mitri, the director of the respondent and Ali Hallak, being the person at the respondent whom the applicant mainly dealt with, appeared for the respondent. 3. The application was filed on 10 March 2022. It sought orders for the respondent to pay: (1) any difference between a contract build cost of $220,000.00 and the actual build cost, said to be at the time of filing $30,000,000; (2) $30,000.00 which the applicant says the respondent had agreed to pay as a rebate; (3) $6,450.00 as a refund of fees the applicant had paid the respondent; and (4) its costs incurred for the Tribunal. 4. Directions had been made for the parties to provide to the Tribunal and each other the documents they relied on including any witness statements affidavit or statutory declarations containing the evidence of any witnesses. 5. The applicant relied on a 112-page bundle of documents filed 4 August 2022. It contains a witness statement of the applicant dated 21 July 2022, a chronology of events, points of claim and annexures A to X referred to in the applicant's statement. 6. The respondent relied on a bundle of documents dated 23 August 2022. It did not include a statement, statutory declaration, or affidavit. Mr Ali gave short evidence that the first two pages of respondent's bundle was in effect a statement by him and that its contents were true and correct. The applicant cross examined Mr Ali. IDENTIFICATION OF ISSUES 1. At the hearing, the applicant referred to the points of claim and informed the Tribunal that he was claiming: (1) a refund of $6,490.00 of fees paid to the respondent; (2) $30,000.00 in commissions or rebates the applicant says the respondent agreed to pay and; (3) $3072.32, being interest paid in respect of a loan for the purchase of the land in circumstances where the land was yet to be built on. 2. The claim for a refund of $6,490.00 appears to have been based on allegations that the services provided, in breach of an implied consumer guarantee were not provide with due care and skill. The claim for $30,000.00 is largely put on the basis that the respondent had agreed to pay it. Although, the applicant's material also asserted that representations had been made by the respondent to the effect that the amount of $30,000.00 would be paid. 3. The respondent informed the Tribunal that it agreed to an order providing for it to pay the sum of $6490.00 to the applicant as a refund of fees paid to the respondent by the applicant. That left the claims for $30,000.00 and $3072.32 in dispute. 4. The parties generally agreed as to the following. 5. The respondent, the Buyers Club, acts as an agent for perspective purchasers, for the purchase of house and land packages. 6. The respondent had introduced the applicant to house and land packages which the applicant had purchased on at least two prior occasions. 7. On each of those occasions the applicant received what has ben referred to as a rebate, a cashback of $30,000.00, paid in two lots of $15,000.00, from the respondent following the applicants agreement to purchase a house and land package. 8. At the hearing, the applicant claimed that the rebates had been paid in two lots of $15,000.00, one after an unconditional loan approval for the construction of the relevant house had been provided and the other after a deposit had been paid to the builder. 9. The respondent claimed that none of the commissions had been paid until after the deposit had been paid to the builder and that provide the deposit had been paid, they were paid following the obtaining of unconditional approval. 10. The applicant instructed the respondent in about May 2021 to find another house and land package. 11. That the respondent had agreed to pay the applicant rebate of $30,000,00 in two instalments of $15,000.00, but that the parties were in dispute as to when the rebate amounts were payable. 12. There was no written contract between applicant and the respondent that set out when the rebate amounts would be paid. 13. The dispute arises because of the following. 14. The applicant claims that $15,000.00 was payable upon obtaining unconditional loan approval for the construction cost of a house on the land and that a further $15,000.00 was payable upon payment of a deposit to the builder. The applicant says that the deposit wasn't paid, but that he is still entitled to the second $15,000.00 because if he had received the first payment of $15,000.00, he would have paid the deposit and then become entitled to the second $15,000.00 payment. 15. The respondent's position however is that no amounts would be paid until a deposit has been paid to the builder, with the first $15,000.00 being payable after obtaining loan approval and payment of the deposit to the builder, and the second on settlement. 16. The issues for consideration are: 1. whether it was a term of the agreement between the parties that the first payment of $15,000.00 was payable following the Applicant obtaining an unconditional loan approval for the construction of the house or whether he was also required to have paid the builder's deposit before becoming entitled to the first payment of $15,000.00; 2. whether the applicant is entitled to the second payment of $15,000.00 because he would have paid the builder's deposit if he had received the first payment and would then, according to the applicant, have become entitled to the second 415,000.00 payment; and 3. subject to a consideration of (1) and (2) what orders ought to be made. 1. Although the applicant also raises complaints concerning the intended builder's prices increasing from what the applicant says had been agreed, this claim concerns the claim for the two lots of $15,000.00 plus interest on a loan for the purchase of land. JURISDICTION 1. I am satisfied that Applicant is a consumer for the purposes of s 70D Fair Trading Act 1987 (NSW) (FTA), that the claim involves an amount within the Tribunal's monetary limit, that the claim was lodged within 3 years of the cause of action accruing and that the claim is a consumer claim because it involves a claim for the payment of a specified sum of money arising out of the supply of goods or services or the intended supply of goods or services in New South Wales or a contract that was entered in New South Wales, and that the Tribunal has jurisdiction to hear and determine the Applicant's claim. 2. To the extent the claim includes alleged breaches of the Australian Consumer Law (NSW) (ACL), pursuant to sections 28 and 29 FTA, the ACL applies, and because the Applicant falls within the definition of "consumer" in section 3 ACL the "consumer guarantee" provisions in Part 3.2 Division 1 of the ACL are implied. CONSIDERATION and ORDER(S) 1. On 3 May, the applicant sent an email to Mr Hallak stating that he wants to start thinking about the next project and that he would again be looking for something similar, "price, cashback". 2. On 6 May 2021, the applicant sent an email to Mr Hallak stating, "So in ideal world I will be looking at a 4 bedroom, uptown 400K, 30K Cashback." 3. On 7 May, Mr Hallak sent an email to the applicant attaching a brochure for an Allegra Homes house and land package for $420,000.00 in respect of Lot 1007 Alkina Estate, Narangba Queensland. 4. On 18 May, Mr Hallak sent an email to Mr Cookson which, amongst other things, stated: "This is the best price they can offer. This is slightly larger in land size the package can be $425,000.00 best price. with the build price hike lately, this build is actually $15,000.00 discounted for you. Besides that he cannot offer any more discount, I can offer a fee of $12,900 as this is your third property as discussed" … 1. The email attached a brochure for an Allegra Homes house and land package for $430,000.00 in respect of lot 1008 Alkina estate. 2. None of the emails to this point identify the circumstances governing when the amounts of $15,000.00 would be paid. Nor is there any direct evidence of conversations to this point as to the payment pf the amounts of $15,000.00. 3. On 20 May 2021, the respondent issued a tax invoice to the applicant to "Pauls Investments Aus. Pty Ltd" for $6,450.00 for consulting fees. That invoice was paid by the applicant on 10 June 2021 by direct transfer. 4. In my view, by that point in time, whatever the contract is between the applicant and respondent it has been made. A house and land package has been found and the respondent has issued a tax invoice which has been paid by the applicant. There is however little evidence prior to 20 May 2022 identifying what the terms were in relation to the payment of the amounts of $15,000.00. There is no written contract and no direct evidence of conversations said to contain representations as to the payment of $30,000.00. A further difficulty is that, although there were records of previous amounts of $15,000.00 having been paid, there was no direct evidence of the facts surrounding their payments. 5. Both parties however agree that $30,000.00 was to be paid in two lots of $15,000.00 as had previously been the case and that the issue, at least in respect of the first payment was whether it was to be paid after the applicant obtained unconditional approval for a construction loan or whether the applicant was also required to have paid the relevant builder's deposit before being entitled to the first payment of $15,000.00. 6. To the extent there is any claim by the applicant based on representations as to a future matter (being the payment of the amounts of $15,000.00) having been made, given the lack of any direct evidence of representations, I would not be prepared to find in favour of the applicant based on any express representations. As noted above, the real issue however is as to the terms governing the payment of the amounts of $15,000.00. 7. To the extent that the application also claims a refund of the $6450.00 because the services were not provided with due care and skill, there is no issue to determine because the respondent agrees to an order for the payment by it of the sum of $6450.00. 8. The respondent's bundle contained: 1. a cover page and the reference schedule for a contract between TraskLand Corporation No 2 Pty Ltd and the applicant for the sale of proposed lot 1008 Alkina Estate to the applicant for $205,000.00; and 2. page 1 of a 5page document headed Schedule for QBCC New Home Construction contract between the applicant and South Coast Building Group Pty Ltd t/as Allegra Homes for $220,000.00. 1. The parties informed the Tribunal that on 1 June 2021 the applicant entered a contract to purchase proposed Lot 1008 Alkina Estate for $205,000.00 (the Land) and a contract to construct a house on the Land for $220,000.00. 2. The parties also informed the Tribunal that the contract to purchase the land then settled in October 2021. 3. The respondent's bundle also included a performance bonus agreement dated 10 August 2020 between the respondent and Allegra Homes. It provided that bonus payments were to be made to the respondent by Allegra Homes of $30,000.00 plus GST and stated: "Payment terms: 100% paid on land settlement once 5% builder deposit has been paid and proof of satisfactory finance approval. SMSF or single contract packages will be paid on settlement. 1. It also provided that: "Should it occur that the client defaults and not settle the contract in place then the introducer [i.e., the respondent] shall return any and or introduction fees, performance bonuses and commissions paid by Allegra Homes". 1. The respondent relies on that agreement, to assert that the payments to be made by the respondent to the applicant were to come from funds that the respondent was to receive from the builder and those funds were only payable to the respondent when a 5% builder deposit has been paid. The respondent argues that because the 5% builder deposit was never paid, they never received the bonus from the builder and therefore were not obliged to pay the applicant. 2. A significant difficulty with the respondent's argument is that the applicant was never informed of the contract between Allegra Homes and the Respondent. 3. On 26 August 2021, the applicant sent an email to Mr Hallak that, amongst "Also, the 30K cashback, how long does this stay on the table for? As this is structured into my finances and cannot go ahead without knowing that this is definitely going to happen. Just to confirm, I would need to pay $10K in the next week, and then the further $20K in about 6 -8 weeks, when council approval happens, and we settle. Then the rest of the deposit a further 2 - 3 months after this? Still with the agreement that the cashback is $15K on formal approval and $15K on settlement. If all of the above is correct, and dana says we are good for the loan, I think I can go ahead with this…" 1. Mr Hallak did not, whether in writing or a conversation, seek to correct the applicant as to when the cashback would be payable or stating to the effect that it was not payable on formal approval and would only be payable after the builder's deposit had been paid. 2. On 23 September 2021 the applicant and the respondent received an email from Dana Fraser of the "Lending Club" stating that a loan for the purchase price of $205,000.00 had been approved. That is the loan for the purchase of the Land. An unconditional approval letter dated 23 September 2021 from Westpac to Dana Fraser in respect of that loan was attached to the email. 3. The purchase of the Land settled in October 2021. 4. On 28 October 2021, Sarah Elali from the respondent sent an email to the applicant and Mr Hallak congratulating the applicant on his settlement (of the purchase of the Land) and stating: "Please see attached, 5% build invoice to be paid as early as possible, please send through the remittance once this is process and we will forward to the builder to obtain a receipt. Could you also please provide us with your account details for when we process your first half of the cash back, I'll have it on file for when payment is due" 1. That email attached a Tax Invoice headed "01 deposit CLAIM" from Allegra Homes to the applicant for $11,000.00". 2. The respondent relies on that email as evidence that the first $15,000.00 was not payable until after the deposit had been paid. I disagree that it has that effect. In my view, all it does is attach a tax invoice from the builder for the payment of a deposit of $11,000.00 and a request for account details for the payment of the first $15,000.00 payment. 3. A further email from Dana Fraser of the Lenders Club dated 15 November 2021 to the applicant and Mr Hallak states: "Please find attached your unconditional approval for your construction. I should have loan documents in the next 2 days, and I will drop them in your mailbox for you". 1. Attached to the email was a letter from Westpac dated 12 November 2021 headed "Unconditional Approval". It was in respect of a loan to the Applicant for $180,372.00. Having regard to the email and the attached letter, I am satisfied and find that as of 12 November 2022, the applicant had received unconditional approval of a construction loan. 2. The applicant then relies on several text messages between him and Mr Hallak that the applicant submits contain admissions by Mr Hallak on behalf of the respondent that the respondent had agreed to pay and was to pay to the applicant the sum of $15,000.00 upon unconditional approval for the construction loan having been provide. They include the following. 3. In response to a message from the applicant on 8 November stating "...Now that the construction loan has formal approval, are you able to arrange the first cashback payment?", Mr Hallak responded: "Hey mate let me chat to the building (sic) now". 1. In a message on 6 December, Mr Hallak stated: "I thought I told you this Friday, it will be sorted out and even if the builder did not pay, I would personally". 1. In response to a message from the applicant stating: "Ali an agreement was made with the builder that the first $15k was to be paid on formal approval (4 weeks ago), I have been told this Friday for the last 2 weeks", Mr Hallak replied: "I do agree mate it was due on formal finance however I did not say it was the last two Fridays ago. It's this Friday I'm sorry (sic) it has taken this long delays on all ends are a nightmare currently". 1. In an email dated 6 December to Mr Hallak, the applicant said: "We had an agreement on the current property purchase that $15,000.00 commission would be paid on formal approval, which was over 4 weeks ago, and $15,000.00 on settlement. I have contacted you on 10 times regarding this and keep being given a day when the payments will be made, yet they never get made". ... 1. That email wasn't responded to. 2. In circumstances where the parties agree that the contract between the applicant and the respondent, regardless of how it arose required the payment of two amounts of $15,000.00 which were at various times referred to as a rebate or refund or bonus, and the only issue to determine in respect of the first payment is whether it was payable after the applicant received unconditional finance approval or whether the builder's deposit was also to have been paid, it is open for the Tribunal to have regard to the post contract conduct to consider what the terms of the contract were Franklins Pty Ltd v Metcash Trading Limited (2009) 76 NSWLR 603 [325]. The post contractual conduct can also be relevant if it can be regarded as an admission as to the fact of what had been agreed as to when the first payment of $15,00.00 was to be made. See Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150 at [120]. 3. In my view the text message from Mr Hallak that: "I do agree mate it was due on formal finance however I did not say it was the last two Fridays ago. It's this Friday I'm sorry (sic) it has taken this long delays on all ends are a nightmare currently" is an admission as to the fact that it had been agreed that the first of the $15,000.00 was to be paid after unconditional approval had been obtained by the applicant and that the payment of the builder's deposit was, as the respondent claims, a requirement before the first payment of $15,000.00 was to be made. 1. I am fortified in that view because of Mr Hallak's failure to respond to previous emails and message from the applicant stating that the first payment of $15,000.0 was payable after the loan approval had been obtained. 2. Having found that the applicant had obtained unconditional approval for a construction loan, I am satisfied and find that the first payment of $15,000.00 was required to be made and that an order ought to be made for the respondent to pay the sum of $15,000,00 to the applicant. 3. Even on the applicants own evidence, the requirement that the second payment of $15,000.00 was to be made after the deposit had been paid to the builder, had not been met. 4. At the hearing the applicant claimed the second $15,000.00, on the basis that had the first payment of $15,000.00 been made, he would have used that money to pay the deposit of $11,000,00 and then become entitled to the second payment of $15,000.00. The difficulty with this argument is that the applicant had an unconditional loan approval and according to the applicant other moneys from which the deposit could have been paid, but he elected not to do so. The Tribunal therefore finds that the applicant is not entitled to the second claim for $15,000.00 whether as a debt due or as a claim for damages or compensation because of a failure by the respondent to make the first payment of $15,000.0. 5. The Tribunal understands the interest claim to be a claim for interest paid on the loan for the purchase of the land where a house has not yet been built on it. That claim is rejected for the following reasons. First, the construction contract is not with the respondent and the applicant has not identified how the respondent is liable for any interest payments. Second, there is no evidence, in the form of bank statements or other record, identifying the interest paid. Third, this claim does not allege, and the Tribunal has not found that the fact that the Land hasn't been built on is the fault of the respondent. 6. The Tribunal will therefore order that the respondent pay to the applicant the sum of $21,490.00 (being $6,490.00 that was agreed and the first payment of $15,000.00) within 28 days. ********** 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 Amendments 11 September 2023 - Formatting amendments. 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: 11 September 2023