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. The Decision under Appeal 1. The Member referred to the provisions of section 55 of the Property, Stock and Business Agents Act 2002 ("the Act") which is in the following terms; 55 No entitlement to commission or expenses without agency agreement (1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless: (a) the services were performed pursuant to an agreement in writing (an "agency agreement" ) signed by or on behalf of: (i) the person, and (ii) the licensee, and (b) the agency agreement complies with any applicable requirements of the regulations, and (c) a copy of the agency agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of the person. Note : Section 55A allows a court or tribunal to order that commission and expenses are recoverable in certain circumstances despite subsection (1). (2) The regulations may make provision for or with respect to regulating the form of agency agreements and the terms, conditions and other provisions that an agency agreement must or must not contain. Without limiting this subsection, the regulations may prescribe one or more standard forms of agency agreement. (3) Without limiting the means by which a copy of the agency agreement may be served on a person, it may be served by means of facsimile transmission or by such other means as the regulations may allow. 1. The Member held that there was no written agreement between the respondent and the appellant as required by s55(1)(a). This was because the respondent had not signed it, and there was no evidence that the husband had signed it on behalf of the respondent. The member said; "…. there was nothing produced to support this suggestion, for example a written authority or a power of attorney which gave authority to the estranged husband to sign an agency agreement" on her behalf. Furthermore, there was no evidence of "implied consent" by the respondent to the terms of the agency agreement. 2. Accordingly, the Member concluded that there was no written agreement as required by that Act, and the Appellant was not entitled to any commission. For reasons which we do not need to examine, the Member also held that the entitlement to commission was not saved by s55 A of the Act. Consideration Error of Law 1. The resolution of these appeal proceedings depends upon whether it can be concluded, and should have been concluded by the Member, that the agency agreement was sufficient to enable the Appellant to recover its commission on the sale. There is no dispute that the Respondent did not sign that agreement. However, it was clearly signed by her husband, and there is no doubt that he purported to do so with her authority because of the use of the printed words "signature of, or on behalf of Principal/S". Accordingly, it is necessary to determine whether the Respondent's husband signed it on her behalf. 2. In her decision, the Member referred to whether the Respondent "had "impliedly consented" to the terms of the agency agreement" and then went on to say "but there was no oral evidence or written evidence to support this suggestion." It is clear that in making these observations, the Member was determining that there was no evidentiary material which would allow her to infer or imply that the Respondent had given consent to being bound by the terms of the agency agreement. In these circumstances, the Member has, with respect, posed the wrong question for determination. The determining matter is whether the Respondent authorised her husband to sign an agency agreement on her behalf securing the services of the Appellant to sell the property jointly owned by them. It is not a necessary ingredient that the Respondent needed to be aware of the precise terms of the agreement. It was sufficient if she had authorised her husband to enter into an agency agreement, in no matter what form. Of course, arguments might always arise about whether or not any authorisation given by the respondent to her husband would extend to terms and conditions which could not reasonably be contemplated as being contained within an agreement of this kind, and this would be relevant to the extent of any authority. This is not the case in the circumstances of these proceedings. 3. The failure of the Member to address herself to the appropriate question to be determined by reference to the provisions of section 55 of the Act constitutes an error of law. See, for example Craig v State of South Australia [1995] HCA 58, (1995) 184CLR 163. Accordingly, an appeal lies as of right. (See Sec 80(2) of the Civil and Administrative Tribunal Act 2013). 4. The powers of the Appeal Panel in this appeal are set out in Sec 81 of the Civil and Administrative Tribunal Act. 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. Determination by the Appeal Panel 1. Having determined that there was an error of law, we are of the opinion that we are seized of all the relevant factual material which was before the Member sufficient to enable us to consider the merits of the respondent's claim against the appellant. In these circumstances, it is necessary for us to consider the proceedings afresh by reference to the matters to be considered consistent with the provisions of s 55. 2. In considering whether the Respondent's husband was authorised by her to sign the agency agreement on her behalf, we note that the factual circumstances outlined above are indicative that at all relevant times; 1. she was aware that her husband had approached the appellant to sell the property on behalf of both of them, 2. she knew the appellant had secured a purchaser, she was aware that commission was payable by both of them to the appellant, 3. she and her husband had both signed the contract for sale which showed the appellant as the sales agent, 4. she knew that the appellant's commission would be and was deducted from the deposit being held and she had authorised this to occur, and 5. she knew the commission was of the order of $17000. 1. It is clear from the email exchanges between the respondent and her husband, and the communications through the solicitors that her husband was authorised by her to attend to and implement the processing of the sale, including obtaining a purchaser through a real estate agent. 2. At no stage prior to the completion of the sale transaction did the respondent ever complain to anyone about the retention of the appellant to sell the property and the fact that commission would be payable. Her professed ignorance of these matters as asserted in the application she filed in the Tribunal beggars belief. 3. It must be concluded that when the husband signed the agency agreement he did so with the respondent's authority. Accordingly, the agency agreement having been signed by her husband with her authority the respondent was bound by it, and it complied with the provisions of Sec 55 of the Act. Service on the husband of a signed copy of that agreement constituted service on the respondent as her agent. 4. In the course of her oral submissions the respondent repeated her complaints that the appellant had failed to eventually make contact with her to discuss the amount of its commission, and to negotiate a reduced amount. She complained that when she did so the respondent rebuffed her. These are not matters which are relevant to the determination of these proceedings, which is concerned with the operation of Sec 55 on the signed agency agreement. They smack more of a belated attempt by the respondent after the event to avoid payment of the appellant's commission. They confirm that the respondent considered that the appellant was her agent. 5. At the commencement of the proceedings the respondent sought an adjournment to allow her to summons her estranged husband to give evidence. No such summons had been issued before the commencement of the appeal hearing. We asked the respondent why she wished evidence to be adduced from her husband. She referred to a statutory declaration which had been sworn by her husband which the appellant sought to be introduced as new evidence for the purpose of the appeal proceedings. The contents of that statutory declaration were to the effect that the husband asserted that he had entered into the agency agreement with the authority of the respondent. We indicated to the appellant that we were disinclined to receive this new evidence because the husband would clearly have been available to give evidence at the original hearing. Despite agreeing that her husband's evidence would not be helpful to her case, the respondent sought that he be called because she was concerned that the husband might be influenced by a susceptibility to a claim for the balance of the commission from the appellant if it lost the appeal. We declined to allow this evidence to be adduced by the respondent, because firstly it would have been available at the time of the original hearing and secondly it could only have impacted adversely on the respondent's own case. 6. For the reasons which we have set out above we respectfully disagree with the conclusion of the Member that there was no evidence available from which it could be inferred that the respondent's husband had been authorised by the respondent to enter into the agency agreement with the appellant. The conclusion of the Member that there was no such evidence available also demonstrates an error of law which would permit the appeal to proceed as of right and without leave. 7. Once we have concluded, as we do, that the husband was authorised to sign the agency agreement on behalf of the respondent, it follows that it was signed by him on her behalf within the provisions of section 55 (1) (a) of the Act. In finding otherwise, the Member fell into error. Accordingly, the appeal must succeed and the decision of the Member should be quashed 8. We would add that if it were necessary in order to dispose of the appeal, we would have called upon the respondent to show cause why she should not be estopped from denying her liability to pay commission to the appellant. It effected a sale of the property as she desired, she had the benefit of the sale proceeds, at all times she was aware that the appellant claimed to be entitled to commission, she allowed her husband to represent her interests in negotiations, and she never complained about not having signed the agency agreement until well after the sale had been completed. Her application smacks of a belated unconscionable and unjust attempt to renege on the entitlement of the appellant to its commission. In the circumstances, we do not need to pursue this matter further. 9. We make the following orders; 1. The appeal is upheld 2. The decision under appeal is quashed. 3. The application brought by the respondent in matter GEN 16/41915 is dismissed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 May 2017