Lewisham Estates Pty Ltd v LMW Advisory Group Pty Ltd [2014] NSWCATCD 95

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lewisham Estates Pty Ltd v LMW Advisory Group Pty Ltd [2014] NSWCATCD 95 Hearing dates: 20 and 21 March 2014 Decision date: 06 June 2014 Before: S Thode, Senior Member Decision: 1.The respondent shall pay the applicant's costs of the application COM 12/50563 on the ordinary basis as agreed or assessed. Such costs include the cost of the Notice of Motion to adduce further evidence. Category: Principal judgment Parties: Lewisham Estates Pty Ltd (applicant) LMW Advisory Group Pty Ltd (respondent) File Number(s): COM 12/50563

REASONS FOR DECISION

The proceedings 1 The applicant sought declaratory relief pursuant to section 8 of the Consumer Claims Act 1998 that it did not have to pay commission in the sum of $533,500.00 to the respondent. 2 The hearing spanned two days on 11 and 12 March 2014. The decision was reserved. On 20 March 2014 the respondent sought leave to re-open to adduce further evidence. The motion was heard on 20 March 2014 and that decision was reserved also. 3 On 6 May 2014 the Tribunal published its orders granting the declaratory relief sought. The notice of motion was dismissed. 4 The applicant submitted that the respondent was wholly unsuccessful and that costs should follow the event. 5 The respondent cited the CTTT authority of Gigliotti Constructions Pty Ltd v Lancuba (Home Building) [2010] NSWCTTT 263 (17 June 2010). The Tribunal found that where a party was justified to maintain its position in proceedings, and conducts itself reasonably, the Tribunal may decide to not exercise its discretion and make no costs order. 6 The respondent submitted that it was entirely justified and acted reasonably and that it was entitled to maintain its defence until final hearing. It was a reasonable position to maintain that an agency agreement had been formed, or in the alternative, that the respondent should be entitled to recover the commission despite a failure to serve an agency agreement in accordance with the Property Stock and Business Agents Act 2002 (NSW). It is further submitted that the question as to whether an agreement had been entered into between the parties and whether the requirements of the Act had been met were not clear on the documentary evidence filed and were issues "that required ventilation at a hearing due to a conflict in recollection by both parties." 7 It was further submitted that it was reasonable for the respondent to bring the matter to a hearing in light of the fact that the Tribunal's decision was based on preference of oral evidence presented by one party over the other. 8 Further, costs of the motion should not be borne by the respondent. The Tribunal had indicated it was a contributing factor in its decision not to allow further evidence, as it had already formed the view that further evidence would be otiose in light of its primary finding that no Agency Agreement had been formed. The respondent could not have known that the Tribunal had formed a view and it was therefore reasonable to move the Tribunal for further orders on the issue of inadvertence. 9 For these reasons the respondent submitted there should be no order as to costs.