Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Duran and Duran v Tafra Pty Ltd [2015] NSWCATCD 110 Hearing dates: 3 August 2015 Decision date: 18 September 2015 Jurisdiction: Consumer and Commercial Division Before: G.J. Sarginson General Member Decision: 1 The application is dismissed. Catchwords: Due care and skill Misleading or deceptive conduct Remoteness of damage Legislation Cited: Consumer Claims Act 1998 ss 3, 3A, and 7 Fair Trading Act 1987 s 28 Australian Consumer Law 2010 ss 3,18 and 60 Residential Tenancies Act 2010 ss 51 and 87 Cases Cited: Hadley v Baxendale (1854) 9 Ex 341 Strinic v Singh [2009] NSWCA 15 Metropolitan Petar v Mitreski [2009] NSWSC 106 Dasreef Pty Ltd v Hawchar [2011] HCA 21 Hamilton v Bevans Real Estate Gerringong Kiama [2011] NSWCTTT 622 Perpetual Trustee Company Limited & Anor v Ishak [2012] NSWSC 697 Karacominakis v Big Country Developments Pty Ltd (2000) NSWCA 312 Category: Principal judgment Parties: Miguel Duran and Cynthia Duran (applicants0 Tafra Pty Ltd (respondent) Representation: Applicants: In person Respondent: Mr Zappia, director File Number(s): Gen 15/31079 Publication restriction: Nil

REASONS FOR DECISION 1. The applicants are the owners of a rental property in West Hoxton NSW. The respondent is the former managing agent of the rental property. The dispute involves the respondent's allegedly negligent management of the property, allowing a tenant to accrue significant rent arrears before vacating the property. 2. The applicants appeared and gave sworn evidence. Mr Zappia, the director of the respondent and a licenced real estate agent who was the managing agent of the rental property, appeared and gave sworn evidence. 3. The application was filed with the Tribunal on 28 April 2015. The applicant's seek the respondent pay the applicants $7,266.42 for failure to manage the property with due care and skill. In essence, the applicants claim the respondent failed to regularly send monthly rent ledger trust accounts, causing the applicants to be unaware that their tenant had fallen significantly into rent arrears, and failed to take timely action to have the tenant evicted. The applicants assert the respondent failed to act "fairly and honestly" and acted in a "deceptive" manner in respect of management of the property. 4. The matter was listed before the Tribunal on 5 June 2015, when the parties appeared and the matter was set down for hearing with directions that each party file and serve any documentary evidence it sought to rely upon at the hearing. The applicants filed and served documents in accordance with Tribunal orders. The respondent filed and served documents 4 days outside the timetable set down by the Tribunal. 5. In the application filed with the Tribunal, the applicants did not identify how they calculated the figure of $7,266.42 in respect of their loss, nor was it clear at the hearing the basis on which they calculated this amount. In the chronology and summary of argument the applicants filed with the Tribunal, the applicants quantified their loss as "$14,810.00" including 17 weeks lost rental income and "damage caused by the tenant" of "over $2,000.00". However, the applicants had not sought leave, nor been granted leave, to amend their application. 6. In any event, it is clear that the applicants seek damages from the respondent for loss of rent by failure of the respondent to take earlier action to have tenancy terminated, and damages in respect of management fees paid under the managing agency agreement between the parties.