Snowy River Real Estate (NSW) Pty Ltd v Georgi [2017] NSWCATAP 98

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Snowy River Real Estate (NSW) Pty Ltd v Georgi [2017] NSWCATAP 98 Hearing dates: 10 March 2017 Date of orders: 03 May 2017 Decision date: 03 May 2017 Jurisdiction: Appeal Panel Before: Hon F Marks, Principal Member T Simon, Senior Member Decision: (1) Appeal allowed (2) The decision under appeal is quashed (3) The application brought by the respondent in GEN 16/41915 is dismissed Catchwords: Agent's commission - agency agreement - held signed by estranged husband on behalf of wife - real estate agent entitled to retain commission- appeal upheld. Legislation Cited: Property, Stock and Business Agents Act 2002 Civil and Administrative Tribunal Act 2013 Cases Cited: Craig v State of South Australia [1995] HCA 58, (1995) 184CLR 163. Category: Principal judgment Parties: Snowy River Real Estate (NSW) Pty Ltd (Appellant) Kirin Jane Georgi (Respondent) Representation: P Sacco, (Principal of Appellant) K Georgi (Respondent self-represented ) File Number(s): AP 16/56040 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and commercial Division Date of Decision: 5 December 2016 Before: S Daly File Number(s): GEN 16/41915

Reasons for Decsion

The Factual Background 1. The appellant in these proceedings, Snowy River Real Estate (NSW) Pty Ltd has sought leave to appeal from a decision of the Tribunal which required the appellant to pay to the respondent the sum of $8580. 2. The respondent brought proceedings in the Tribunal claiming repayment of the sum of $17,160 being agent's fees, commissions and expenses which had been paid to the appellant consequent upon its negotiation of a sale of a property jointly owned by the respondent and her husband, Volker Georgi. For reasons which we shall shortly discuss, the Member ordered that the appellant repay to the respondent one half of the commission payable on the sale, namely $8580. 3. Before discussing the decision under appeal, it is appropriate to first set out the factual background as revealed in documents which were before the Member. Both the respondent and her estranged husband wished to sell the jointly owned property. An approach was made by the husband to the appellant to list the property for sale through it. For reasons which will become obvious, at all relevant times the respondent was aware that her husband had approached the appellant to list the property for sale, and that a sale was effected through the services of the appellant. 4. A form of agency agreement appointing the appellant as agent for the sale was signed by the husband of the respondent on 23 December 2015, and he purported to sign it on behalf of himself and his wife as the principals named in the document. Subsequently, both the respondent and her husband signed a contract for sale of the property which contract listed the appellant as the vendor's agent. The form of contract was dated 8 February 2016 and it may be assumed that this was the date of exchange. 5. The one firm of solicitors acted for the respondent and her husband on the sale. There is a communication from the appellant to those solicitors, which appears to be by way of facsimile transmission dated 11 January 2016 attaching a copy of the Sales Advice and the front page of the Contract for Sale of the property. By letter dated 14 January 2016, addressed to both the respondent and her husband the solicitors acknowledged instructions received to act for them on the sale and furnished certain advice. A file note from the file of those solicitors indicates a discussion with the respondent on 28 January 2016 which discusses the manner in which the net proceeds of sale were to be distributed. This included a reference to the agent, and it may readily be assumed this was a reference to commission payable to the agent. An email from the respondent's husband to her dated 3 February 2016 enclosed copy of an email from the solicitors addressed to her setting out "amended terms" referable to the sale. It clearly states that real estate agent's commission is payable from the proceeds of sale. 6. A letter from the solicitors dated 8 February 2016 addressed to both the respondent and her husband forwarded by email addressed to the husband confirmed that contracts were exchanged on 8 February 2016. Noted in the letter was the fact that the agent was holding the deposit which would be accounted to both of them "immediately following settlement." 7. A solicitors' file note of 8 March 2016 indicates that the respondent advised by telephone that she no longer consented to the sale of the property. She was informed that contracts had already been exchanged and that she was bound by the contract. She was said to be "angry" because her husband had stopped making mortgage repayments and she would receive less from the sale than she had anticipated. 8. By email dated 20 March 2016 addressed to the solicitors, the respondent expressed concern that they had failed to account to her for the deposit of $52,000 "minus real estate agent fees." She referred to a "missing $36,000 +" which is indicative that the respondent understood that there would be agent's commission payable of something of the order of $17,000. The solicitors clarified the position on the following day by email to the respondent indicating that the net deposit after deduction of agent's fees would be forwarded to their trust account. Significantly, by email dated 21 March 2016 at 10:35 AM, the respondent confirmed that she had spoken to the solicitors "and requested that funds from the deposit (minus agent fees) be released directly into my account from the real estate agent instead of being passed to the solicitor and then being released." She asked that her husband confirm his agreement and forward her email and his own to both the solicitor and "Patrick" being a reference to Patrick Sacco, the principal of the appellant. The respondent's husband then authorised the agent to release the deposit after deduction of the real estate agent's commission. A copy of that email was forwarded to the respondent. 9. On 19 September 2016, the respondent applied to the Tribunal seeking an order for payment of a refund from the appellant to her of $17,910, which was said to reflect the commission retained by the appellant from the deposit held by it. In support of her application the respondent said that she was never advised or consulted by a representative of the appellant "about the details of the authority between him" and her husband, she was never consulted regarding commissions or included in commission negotiations, was given no other relevant information about "cooling off options or dispute resolution information." She said that she regarded the commission as being excessive and she had been deprived of an opportunity of negotiating it. She thought that the agent would discuss the level of commission with her "sooner or later", but he never did. The respondent relied on the fact that she had not signed any agency agreement with the appellant. She said that when she contacted the appellant requesting a refund of the commission she was rebuffed and complained that the appellant did not try to negotiate an outcome with her. She sought a refund of the full commission paid together with "reimbursement for education costs that I have incurred in finding out my legal rights in relation to Real Estate Law" and travel expenses in pursuing her claim. 10. The matter came before the Tribunal for hearing on 5 December 2016 and an order was made that the appellant reimburse the respondent the sum of $8580 being one half of the commission.