New South Wales Supreme Court Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited & Anor [2005] NSWSC 485 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : 20 May 2005 JUDGMENT DATE : 27 May 2005 Common Law Division JURISDICTION : Administrative Law List JUDGMENT OF : at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons. CATCHWORDS : Monetary jurisdiction of the Tribunal - limitation applies to orders - need for amendment of regulation 6 - statutory constitution and implicit amendment. Consumer Claims Act 1998, s14 Consumer Claims Regulation 1999, reg 6 LEGISLATION CITED : Property, Stock & Business Agents Act 1941, s42A Property, Stock & Business Agents Act 2002, s36 Prestige Residential Marketing Pty Limited (Plaintiff) PARTIES : A & M Short Investments Pty Limited (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant) FILE NUMBER(S) : SC 30036/05 Mr J T Johnson (Plaintiff) COUNSEL : Mr M A Bradford (First Defendant) Macedone Christie Willis (Plaintiff) SOLICITORS : Elliott Tuthill (First Defendant) I V Knight Crown Solicitor (Second Defendant) LOWER COURT JURISDICTION : Consumer Trader and Tenancy Tribunal of NSW LOWER COURT FILE NUMBER(S) : COM 04/40040 LOWER COURT JUDICIAL OFFICER : Member J Smith - 6 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST Master Malpass 27 May 2005 30036 of 2005 Prestige Residential Marketing Pty Limited v A & M Short Investments Pty Limited & Anor JUDGMENT 1 Master: The plaintiff provided services for the first defendant in respect of a property at Taren Point. It made a claim for commission. The first defendant disputed the quantum of that claim. 2 The plaintiff had claimed commission in the sum of $44,000.00. By way of compromise, the first defendant offered the sum of $11,000.00. The offer was not accepted. 3 The first defendant brought an application dated 24 August 2004 in the Consumer Trader & Tenancy Tribunal (the Tribunal). In that portion of the application which requires the applicant to specify the order wanted, the first defendant ticked the box relating to Property, Stock & Business Agents Act 1941 and added s42A(4) "determination of reasonable fees". The total value of the claim was expressed to be $44,000.00. 4 The Property, Stock & Business Agents Act 1941 (the 1941 Act) was repealed on 1 September 2003 and replaced by the Property, Stock & Business Agents Act 2002 (the 2002 Act). Section 36 (which is headed "Review of commission and fees") of the 2002 Act is in substantially similar terms to the repealed s42A. 5 Under s36, the first defendant is enabled to apply to the Tribunal for the determination of a consumer claim within the meaning of the Consumer Claims Act 1998 (the Act) in respect of the plaintiff's entitlements to remuneration. There seems to be no dispute that the relief sought by the first defendant fell within the ambit of a consumer claim. The application has been treated as being a claim for relief under s36(4). 6 Section 8 of the Act is headed "Tribunal orders". Section 14 thereof is headed "Limitation on Tribunal's jurisdiction to make orders". 7 Section 14 is in the following terms:- Limitation on Tribunal's jurisdiction to make orders (1) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the claimant or, where there are two or more claimants, in favour of those claimants if the total of: (a) the amount or amounts (if any) of money to be paid, and (b) the value or values (if any) of the work to be performed, or the services to be supplied, and (c) the amount or amounts (if any) of money to be declared not to be due or owing, and (d) the value or values of goods (if any) to be delivered or replaced, under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description. (2) The Tribunal has no jurisdiction to make in respect of a particular consumer claim an order or orders in favour of the respondent to the claim or, where there are two or more respondents to the claim, in favour of those respondents if the amount or the total of the amounts (if any) to be paid under or by virtue of the order or orders would exceed the amount prescribed by the regulations in respect of claims of that class or description. (3) Subsections (1) and (2) do not apply in relation to a consumer claim arising from the supply of a new motor vehicle that is used substantially for private purposes within the meaning of the Motor Vehicles Taxation Act 1988. (4) For the purposes of subsection (3): new motor vehicle means a motor vehicle that is not a second-hand motor vehicle within the meaning of the Motor Dealers Act 1974. 8 Regulation 6 of the Consumer Claims Regulation 1999 (the Regulation) is in the following terms:- Limitation on Tribunal's jurisdiction to make orders In relation to claims arising under the Act (other than claims relating to commission fees charged by agents licensed under the Property, Stock and Business Agents Act 1941 ), the prescribed amount for the purposes of section 14 of the Act is $25,000. 9 The plaintiff made a jurisdictional objection. A preliminary question of jurisdiction was litigated before the Tribunal. The Tribunal satisfied itself that it did have jurisdiction to hear and determine the application. Written reasons have been given for that decision. 10 The plaintiff has brought an appeal against that decision. It now moves on an amended summons filed on 11 April 2005. 11 It should be first observed that the first defendant has erroneously expressed the value of its claim. It is clearly not in the sum of $44,000.00. The first defendant is seeking a determination that the amount to be paid is a lesser figure (it is a claim for relief from payment of money pursuant to s8(1)(d) of the Act). Under that provision, the Tribunal is empowered to make an order declaring that a specified amount of money is not due or owing by the claimant to the respondent). 12 The appeal was heard on 20 May 2005. Both parties relied on written submissions. These submissions were supplemented by oral argument. 13 In a general sense, it may be said that there were two broad areas of dispute between the parties. The first consideration was whether the monetary jurisdictional limit of the Tribunal was determined by the amount claimed or the amount of the order that could be made. The second consideration was whether the 2002 Act manifested a general intention to implicitly bring about a result whereby the reference to the 1941 Act in regulation 6 was deleted and replaced by a reference to the 2002 Act. 14 Save for the claims that are excluded thereby, regulation 6 prescribes a jurisdictional limitation in the sum of $25,000.00. The sum of $25,000.00 is prescribed therein for the purposes of s14 of the Act. What s14 does is to impose a limitation on the making of orders. This appears unambiguously from both the heading and the content of the section. 15 In my view, the imposition of such a jurisdictional limitation does not take away jurisdiction altogether in respect of a claim made in a sum in excess of the amount of $25,000.00. The Tribunal has jurisdiction to make an order so long as the quantum of the order does not exceed the prescribed amount of $25,000.00. A party who brings a proceeding in the Tribunal which is subject to such a jurisdictional limitation can only obtain an order in respect of a sum that does not exceed an amount of $25,000.00. 16 In the present case, the first defendant is not seeking an order for payment of money. It is seeking an order declaring that an amount of money is not due or owing by it to the plaintiff. If it continues with the application in the Tribunal the relief that it can obtain is restricted to the sum of $25,000.00. 17 The application in its present form may be technically deficient. It is open to the first defendant to make application to amend the application. If it did so, claiming relief that did not exceed $25,000.00, the argument advanced by the plaintiff in this appeal would disappear. 18 As I understand the position, the first defendant is content to proceed in the Tribunal on the basis that it cannot obtain relief in excess of $25,000.00. 19 In these circumstances, it is unnecessary to dwell on the second of the two considerations. In essence, it involves the concept of the 2002 Act amending the Regulation to the Act. At first blush, it was an argument that I did not find to be attractive. Further reflection did not improve its prospects. 20 It would be surprising if parliament in the drafting of the 2002 Act had in mind a matter concerning one of the regulations contained in the Regulation. Section 228 and Schedule 2 thereof (which deal with consequential amendments) contain no reference to the Act. 21 What the 2002 Act does is confer an entitlement to apply to the Tribunal for relief as a consumer claim. It is the Act (s14) together with the Regulation (regulation 6) which confers the powers of the Tribunal in determining a consumer claim and imposes the monetary limitation on its jurisdiction to make orders. It does not seem to me that the 2002 Act was intended to affect the Act. 22 It is common ground that the failure to expressly amend regulation 6 was an oversight. It seems to me to be an oversight that should be rectified by the making of the appropriate amendment to the Regulation. 23 The appeal fails. The summons is dismissed. The plaintiff is to pay the costs of the summons. ********** 15/09/2005 - Typographical errors - Paragraph(s) 1, 2, 3, 5 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. 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