Raymond and Rebecca Fraser v Aspect Marketing Pty Ltd atf ASAP Family Trust [2014] NSWCATCD 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Raymond and Rebecca Fraser v Aspect Marketing Pty Ltd atf ASAP Family Trust [2014] NSWCATCD 98 Hearing dates: 2 May 2014 Decision date: 17 June 2014 Before: J A Ringrose, General Member Decision: 1. The applicants are not required to pay any commission to the respondent in respect of the sale of a property known as XXXX, Wamberal. 2. The respondent is to pay to the applicants all deposit monies held on account of commission in respect of the sale, namely the sum of $24,600.00, on or before 30 June 2014. 3. Each party is to pay their own costs of the application. Legislation Cited: Property Stock and Business Agents Act 2002 sections 36, 55, 55A, 58, 59 and 60. Property Stock and Business Agents Regulations 2003 reg. 13 Cases Cited: Pratt v Arwin Realty Business and Finance Brokers [2011] NSWCTTT 455 Apps v G A Fletcher Enterprises [2005] NSWCTTT 141 Category: Principal judgment Parties: Raymond and Rebecca Fraser (applicants) Aspect Marketing Pty Ltd atf ASAP Family Trust t/as Adam Gilbert Real Estate (respondent) File Number(s): COM 13/43797 Publication restriction: Nil

reasons for decision

APPLICATION 1By an application filed on 16 August 2013 Raymond and Rebecca Fraser sought an Order pursuant to section 36 of the Property, Stock and Business Agents Act 2002 for the Tribunal to review commission owed by the applicant to the respondent. They sought a further Order that the respondent was not entitled to be paid commission in relation to the sale of the property at XXX, Wamberal. The application included detailed reasons for the Orders sought and it is clear that up to June of 2013 Mr Ferry as the solicitor for the applicants was dealing with a Mr David Zammit who was then the solicitor acting for the respondent in relation to the commission dispute. Relevant documents, including correspondence between the parties and their respective legal advisors were annexed to the application. When the matter was first before the Tribunal on 18 September 2013 amendments were made to correct the name of the respondent and the parties were invited to consider the respective positions and also consider whether JMB(NSW) Pty Ltd t/as McGrath Central Coast should be joined as a party to the proceedings. 2On 28 October 2013 leave was granted to both parties to be legally represented and the respondent was required to provide the applicants and the Tribunal with a copy of all documents, including witness statements, Statutory declarations, accounts and receipts upon which the respondent intended to reply by 11 November 2013. The applicant was required to provide documents in reply by 25 November 2013. 3On 14 November 2013 the time for the respondent to comply with the earlier directions was extended to 18 November 2013 and the time for the applicant to provide documents in reply was extended to 2 December 2013. On 25 November 2013 the respondent sought a further extension of time on the basis that a witness who was required to provide material had not provided a statutory declaration. The time for the respondent to provide evidence was further extended to 9 December 2013 and the time for the applicant to provide documents in reply was extended to 23 December 2013. A Hearing date which had been set for 12 December was vacated. 4On 9 January 2014 the time for the applicants to provide documents in reply was further extended to 13 January 2014. The matter was then listed for hearing on 31 January 2014 when the respondent sought an adjournment and an opportunity to provide further documents which would form part of his defence. He indicated that he had sought the services of a solicitor at that stage but was unable to get an appointment until 30 January 2014. When the matter was listed for hearing on that day the Tribunal granted leave to the respondent to rely the formal hearing upon documents provided to the Tribunal by a letter dated 24 January 2014 and received on 29 January 2014. The applicant was thereafter allowed until 14 March 2014 to provide material in reply.