Sirimanne v Bradfield and Pritchard Real Estate Consultants Pty Ltd [2023] NSWCATCD 131

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sirimanne v Bradfield and Pritchard Real Estate Consultants Pty Ltd [2023] NSWCATCD 131 Hearing dates: 11 July 2023 Date of orders: 19 September 2023 [amended 20 November 2023] Decision date: 19 September 2023 Jurisdiction: Consumer and Commercial Division Before: C Campbell, General Member Decision: Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 19 September 2023 are amended as follows: (1) The respondent is to pay the applicant the sum of $550 within 28 days from the date of these orders. (2) By consent, the respondent is to make available to the applicant a copy of the applicant's marketing file and photographs from 2014. (3) The balance of the application is dismissed. Catchwords: Managing agency agreement- overcharging- refund management fees Legislation Cited: Property and Stock Agents Act 2002 Category: Principal judgment Parties: Applicant: Janitha Sirimanne Respondent: Bradfield and Pritchard Real Estate Consultants Pty Ltd Representation: Counsel: N/A

Solicitors: N/A File Number(s): COM 23/15061 Publication restriction: Nil

REASONS FOR DECISION 1. The applicant alleges the respondent breached the managing agency agreement ("MAA") and the Property and Stock Agents Act 2002, and as a result she suffered a loss in the sum of $2,676.11. 2. The applicant appeared in person and Mr Dal Busco gave evidence on behalf of the managing agent. 3. The applicant made an application at the hearing to include breaches of the agreement dating back to 2018. The respondent was unaware of the proposed amendment and said that it was not in a position to meet the claim without any notice. The applicant was given an opportunity to either make an application for an adjournment of the application or withdraw the proceedings and file a new application which included the proposed amendments. The applicant elected to withdraw the application to amend, and decided and rely on the application as filed on the 28 March 2023. 4. Both parties filed and served their evidence in accordance with the procedural orders made on the 01 May 2023. The applicant relied on a 216 page bundle of documents. The applicant did not have a copy of the material with her today, however she was able to reference the documents she relied on in relation to the alleged breaches by relying on the respondent's documents and also by putting copies of some emails which were in her bundle before the tribunal, together with copies of the ingoing and routine inspection reports. I have read the documents in the bundles provided by both parties and have taken them into account in coming to my decision. 5. The parties entered into the MAA on the 15 December 2014. The alleged breaches of the agreement relate to the last tenancy agreement which commenced on the 08.12.21 with the tenant vacating on the 16.12.22. The applicant and her husband moved back into the premises on the 17.12.22. 6. The applicant claims the following 1. $550 for refund of overcharging relating to an attendance at NCAT 2. $395 for a refund of advertising 3. $1,003.11 as refund of 70% of the last months managing agent's fees 1. At the end of the tenancy the applicant's last tenant issued proceedings in the Tribunal which were settled by consent on the 08.03.23. The respondent's managing agent appeared on that day and the applicant and her partner were also present when the consent orders were made for an order for the rental bond and repairs to walls. 2. It is not contested the respondent terminated the MAA on the 10.03.23 without giving the 90 day notice in breach of clause 1 of the agreement.