Beyond 2000 Investments Pty Ltd v Ben Boyd Real Estate Pty Ltd [2015] NSWCATAP 220

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beyond 2000 Investments Pty Ltd v Ben Boyd Real Estate Pty Ltd [2015] NSWCATAP 220 Hearing dates: 19 March 2015 Decision date: 14 October 2015 Jurisdiction: Appeal Panel Before: D Patten, Principal Member R Titterton, Senior Member Decision: 1. Appeal Allowed

2. Decision of the Tribunal below quashed.

3. Remit matter for reconsideration by Tribunal according to law and upon such evidence as it thinks fit.

4. No order as to costs of appeal Catchwords: APPEAL ALLOWED – question of law – whether the Tribunal correct to find no jurisdiction because s 36 of the Property Stock and Business Agents Act 2002 had not been complied with

CIVIL AND ADMINISTRATIVE TRIBUNAL – costs – special circumstances – no question of principle Legislation Cited: Civil and Administrative Tribunal Act 2013 Property, Stock and Business Agents Act 2002 Category: Principal judgment Parties: Beyond 2000 Investments Pty Ltd (Appellant) Ben Boyd Real Estate Pty Ltd (Respondent) Representation: On the papers File Number(s): AP 15/28155 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 March 2015 Before: P. Smith, General Member File Number(s): COM 15/04627

REASONS FOR DECISION 1. This is an appeal against a decision by the Tribunal below (Mr P Smith) dismissing an application by the appellant on the ground that the Tribunal had no jurisdiction to deal with it. 2. The orders and reasons furnished by the Tribunal on 19 March 2015 were as follows: "1. The application is dismissed because: The Tribunal has no jurisdiction to determine the application. 2. Reasons for decision: The applicant and respondent entered an agreement for the respondent to perform services as set out in a document "Heads of Agreement" dated 29 August, 2014 This document provided as follows: "Transfer of option on 125 Military Road from Platino to Anthony Foresto or nominee. Payment of Platino by Foresto of $20,000 for transfer. Payment to BBRE by Foresto of $50,000 for putting site together, payable upon formalization of transfer of option." A further clause provided for the respondent's company to be appointed as exclusive marketer of the project at an agency fee of 2.2%. On 5 September, 2014 the applicant paid to the respondent the sum of $70,000.00 and 2 receipts issued by the respondent. The option to purchase 125 Military Road, Neutral Bay was transferred from Revor Pty Ltd to Beyond 2000 Investments Pty Ltd at a cost of $80,000.00. On 27 November, 2014 the Solicitor for Beyond 2000 Investments Pty Ltd requested that Ben Boyd Real Estate refund the sum of $44,000.00 On 16 December, 2014 Ben Boyd Real Estate issued an invoice for $44,000.00 as the varied price for the services rendered by the respondent pursuant to the agreement of 29 August, 2014. The invoice was not addressed to anyone and was marked paid as this amount had been retained by the respondent company. The applicant seeks an order that this fee be reviewed pursuant to Property Stock and Business Agents Act, Section 36. The applicant submits that the invoice forwarded on 16 December, 2014 would satisfy the requirements of Section 36(3) as a prerequisite. The Tribunal finds that there was no request by the applicant for an itemised account. This invoice which does not specify to whom it is issued and the only details provided are that the fee is for the transfer of the option to purchase in accordance with the agreement of 28 August, 2014. These parties had scant regard for acceptable business practices during the negotiations and the preparation of documents that support the transaction. The respondent appears to choose at which point in time and which parts of the Act which he chooses to apply in the transaction and relies on a clause in the agreement of 28 August, 2014 which apparently has been orally varied during negotiations to $40,000.00 plus GST. The applicant then requests the amount retained to be refunded to him only after the option was successfully assigned to the company and the respondent only provides an invoice for the transaction upon the request for the refund. The Tribunal makes no findings on the submissions on whether the fees for the actual services supplied by the respondent can be the subject of review pursuant to Property Stock and Business Agents Act S. 36 as the Tribunal is not satisfied that the prerequisites for a review of the fees or commission have been complied with. No statement of claim or itemised account issued that would satisfy Section 36 has been issued. The Tribunal has no jurisdiction." 1. The original application filed on 22 January 2015 sought: Review of entitlement and reasonableness of fees pursuant to Section 36 of the Property Stock and Business Agents Act 2002. 1. The grounds specified for seeking such an order were: 1. No Agency Agreement in compliance with section 55. 2. Fees charged are not reasonable. 3. Agent failed to disclose fees and commissions payable by other party to the transaction. 1. As can be observed the learned Member below based his decision on the fact that the account which the appellant seeks to review did not comply with S 36 of the Property Stock and Business Agents Act 2002 (the Act). The section provides: 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. (3A) A requirement by a person under subsection (3) must be in writing. (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. 1. Section 36 has been the subject of judicial decision including Coolangatta Property Pty Ltd v Dyason [2011] NSWSC 884 where Ball J cited and followed Oades v Ewart [1961] NSWR 45 where it was held that the details required by the section depended upon the nature of the transaction. Oades indicated that identification of the property, the vendor, the purchaser and the basis of the charge would comply. 2. In this case although the invoice relied on was not addressed to anyone it did in fact name the entity intended to be changed and identified with some particularity the basis of the charge. 3. We have not been provided with a transcript of the proceedings below. However the statements in the appellants submissions on the appeal dated 15 April 2015 have not been challenged: "5. Because section 36 was not in issue as between the parties there was no evidence before the Tribunal member directly with that point, although there was a tax invoice issued by the Respondent dated 16 December 2014 (see annexure A6 attached to the Applicant's Submissions on Jurisdiction). 6. There was also in "evidence" a letter from the Respondent dated 19 December 2014 (annexure A7) in which the Respondent (at paragraph 9) confirms that it "accounted" to itself for the fee of $44,000." 1. The invoice referred to Number 2011 221 on the letter head of the respondent under the heading Particulars provided PARTICULARS AMOUNT Fee by successful negotiations of the amalgamation of the site of 125-127 Military Rd, Neutral Bay for Beyond 2000 Investments Pty Ltd taking over the option to purchase 125 Military Road, Neutral Bay. $44,000 Fee as per Agreement with A Foresto dated 29/8/2014, and subsequently reduced to $40,000 + 10% GST during the lengthy negotiations E. & O.E. TOTAL $44,000 AMOUNT DUE (Incl. GST)