Brett Woods and ORS v Independence Realty Pty Ltd [2014] NSWCATCD 131

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brett Woods and ORS v Independence Realty Pty Ltd [2014] NSWCATCD 131 Hearing dates: 29 May 2013 and 15 October 2013 Decision date: 07 February 2014 Before: R Buckley, Senior Member Decision: The application is dismissed Catchwords: Construction of contract term Legislation Cited: Consumer Claims Act 1998 Property, Stock and Business Agents Act 2002 Consumer Trader and Tenancy Tribunal Act 2001(repealed) Home Building Act 1989 Civil and Administration Tribunal Act 2013 Cases Cited: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 York Air Conditioning and Refrigeration (Australasia)Pty Ltd v Commonwealth (1949) 80 CLR 11 Category: Principal judgment Parties: Brett Woods and ORS (Applicants) File Number(s): COM 12/29274 COM 12/30308 COM 12/31370 and others

reasons for decision

BACKGROUND 1The fourteen applications referred to above were heard concurrently. All of the applicants are lot owners of a strata scheme premises, known as either Nelson Bay Breeze Apartments or Nelson Bay Breeze Resort, situated at Trafalgar Street, Nelson Bay, New South Wales. 2All applications when filed, sought the same relief. The applications were ostensibly filed pursuant to s 36 of the Property Stock and Business Agents Act 2002. The relief sought was in the following terms:- (i)Reimbursement of management fees from 26 May 2011 to 10 December 2011. (ii)Reimbursement of management fees from 10 December 2011 to date. 3The reasons stipulated for requesting the relevant orders were:- (i)The property manager, the respondent in these proceedings, with whom each applicant had signed an Exclusive Management Agency Agreement, was alleged to have not been the holder of a licence issued in accordance with the provisions of s 9 of the Property Stock and Business Agents Act 2002 for the period from 26 May 2011 to 10 December 2011. (ii)The applicants each allege that they had not been informed of changes to the relevant licence. 4Subsequent to the original lodgment of the applications, the relief sought by the applicants evolved, such that by the time the applications came on for hearing, further relief was sought with respect to the following:- (i)The respondent was alleged to have failed, in its duties as a property manager, to maintain and keep in good repair the common property including the gardens and pool of the relevant strata scheme, to the detriment of each of the owners. (ii)That from approximately October 2009 the respondent had misinterpreted the provisions of the standard Exclusive Management Agency Agreement and charged to each of the applicants an excessive amount for marketing expenses, allegedly beyond that which was prescribed by the said agreement. 5Although originally commenced, ostensibly pursuant to the Tribunal's limited jurisdiction under s 36 of the Property Stock and Business Agents Act 2002 (PSBAA), that section did not form the basis of the Tribunal's jurisdiction to grant the relief sought. Section 36 of the PSBAA is in the following terms:- 36 Review of commission and fees (1) An action or other proceedings cannot be commenced by a licensee for the recovery of remuneration or any sum as reimbursement for expenses until the expiration of 28 days after a statement of claim has been served personally or by post on the person to be charged with the remuneration or expenses. (2) The statement of claim must be in writing, set out the amount claimed and contain details of the services performed by the licensee in respect of which the remuneration or expenses are claimed. (3) If money has been paid to or is or has been retained by a licensee (out of money received by or paid to the licensee) in respect of any transaction by or with the licensee as a licensee and has been so paid or retained as remuneration or as reimbursement for expenses in connection with the transaction, the person paying the money or the person who would be entitled to the money had the money not been retained, may require the licensee to furnish the person with an itemised account of the transaction in accordance with the regulations. (4) A person who is served with a statement of claim under this section or is provided with an itemised account of a transaction as provided by this section may apply to the Tribunal for the determination of a consumer claim within the meaning of Consumer Claims Act 1998 in relation to: (a) the entitlement of the licensee to the whole or any part of the amount specified in the statement of claim or the itemised account, or (b) whether the whole or any part of the amount is reasonable, or both. (5) For the purpose of the application of the Consumer Claims Act 1998 to that person, a reference in that Act to a "consumer" is taken to include a reference to that person. (6) The Tribunal has jurisdiction to hear and determine any such consumer claim despite: (a) the terms or conditions of any agreement or contract entered into between the licensee and the applicant, and (b) the amount being more or less than the maximum amount (if any) of remuneration to which a licensee is entitled under this Act. (7) This section does not limit the Consumer Claims Act 1998. (8) In this section: "expenses" means expenses or charges incurred in connection with services performed by a licensee in his or her capacity as a licensee. "remuneration" means remuneration by way of commission, fee, gain or reward for services performed by a licensee in his or her capacity as a licensee. "Tribunal" means the Tribunal under the Consumer Claims Act 1998. 6The section set out above, particularly section 1, refers to proceedings commenced by a licensee, that is by an agent whose fees are challenged by an owner or client of the agent. This section does not allow a recovery by a client of fees already paid. In any event, within the terms of the Consumer Claims Act 1998, in each of the applications the applicant or applicants are consumers who entered into a contract with the respondent for the provision of goods or services and accordingly each of the claims is properly construed as a consumer claim within the meaning of s 3A(1) of the Consumer Claims Act 1998 (the "CCA"). Within the terms of s 8(1)(a) of the CCA the Tribunal has the power to order a respondent to pay to an applicant a specified amount of money arising out of a successful consumer claim. The Tribunal is not limited in granting the former order originally sought in the application, reliant on the powers granted by ss 28(3) of the Consumer, Trader and Tenancy Tribunal Act 2001 (the CTTTA now repealed), see transitional provisions, Civil and Administrative Tribunal Act 2013 - Schedule 1, clause 7. 7The applications were first heard on 29 May 2013, and were part-heard on that day pending, either agreement between the parties as to any entitlements, or the presentation of further evidence. Although certain findings were made on an interim basis, the Tribunal did not on the first day of the hearing, make any orders or decision in accordance with s 49 of the CTTTA. The matter was thereafter stood over on the 29 May 2013 to a date to be fixed on a part-heard basis. The respondent, in the intervening period, gave notice to each of the applicants that it would seek to adduce further evidence at the resumed hearing, and on a contingent basis provided to each of the applicants, the evidentiary material it would seek to rely upon. 8The sections of the CTTTA relevant to the admission of further evidence in the particular circumstances, are ss 28(2) and (3) and s 35. Each of the sections are set out below:- 28 Procedure of Tribunal generally (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of procedural fairness. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 35 Opportunity for parties to present case The Tribunal must ensure that each party in any proceedings is given a reasonable opportunity: (a) to call or give evidence and otherwise present the party's case (whether at a hearing or otherwise), and (b) to make submissions in relation to the issues in the proceedings. 9The applications were relisted on 15 October 2013. On that date Mr McAllister on behalf of the respondent sought to adduce further evidence on the issue of the interpretation of clause 5 of the Common Exclusive Management Agency Agreement. He had provided a statement to the Tribunal, a copy of which had been given to each of the applicants. There was no objection from the representatives of the applicants to Mr McAllister reopening the respondent's case. He did so on two bases, one to provide the information previously requested, and secondly to provide further evidence as to the substantive interpretation of the relevant contract term. Within the terms of ss 28(2) and (3) as set out above, the leave sought by the respondent was granted noting that the respondent had the right under s 35, and the Tribunal had the obligation to ensure that the respondent had the opportunity to present its case. 10I shall now deal with the separate claims made by each of the applicants.