Mary Anne Bernadette And Joseph Michael Dalli V Bos Holdings Pty Ltd [2018] NSWCATCD 15

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mary Anne Bernadette And Joseph Michael Dalli V Bos Holdings Pty Ltd [2018] NSWCATCD 15 Hearing dates: 21 March 2018 Date of orders: 09 May 2018 Decision date: 09 May 2018 Jurisdiction: Consumer and Commercial Division Before: Margaret Mary McCue, General Member Decision: (1) On or before 21 May 2018, the respondent is to pay to the applicants the sum of $ 6,100 by way of refund for overpayment of fees Catchwords: Licensee remuneration; Management Agency agreement Legislation Cited: Part 5, Schedule 4, Civil and Administration Act, 2013; 79 D & E Fair Trading Act 1987; Sections 36; 55 and 55 A Property Stock and Business Agents Act 2002; regulation 9 Property Stock and Business Agents Regulations 2002; Conveyancing Act Cases Cited: Cheung v Yang [2013] NSWSC 1694 at [48] Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 (11 May 1982) Category: Principal judgment Parties: Mary Anne Bernadette And Joseph Michael Dalli (Applicants)

Bos Holdings Pty Ltd (Respondent) Representation: Counsel: Mr B Pluznyk (Applicants)

Solicitors: Brydens Solicitors, Liverpool (Applicants)

Mr Dean Boskovic Jnr, director (Respondent) File Number(s): GEN 17/09155 Publication restriction: Nil

REASONS FOR DECISION

Application 1. The applicants seek an Order pursuant to section 36 of the Property, Stock and Business Agents Act 2002 ("the Act"). The section provides for a review of fees and commission, if any, payable by the applicants to the respondent. 2. The application was amended prior to the hearing date. The applicants now seek an additional order pursuant to section 55 A (3) of the Act. The section provides that a Court or Tribunal is not to make an order in circumstances of a failure of the agency agreement to comply with the requirements of the regulations unless satisfied that: * The failure is a minor failure; and * No loss has been suffered as a result of the failure by the person for whom or on whose behalf the services concerned were performed; and * The failure to make the order would be unjust. 1. There is no definition of a "minor failure" in the dictionary of either the Act or its regulations. The tribunal will deal with these matters in a more fulsome sense after dealing with some preliminary matters. 2. The applicants rely upon the respondent's omission to include the amount payable in commission and fees expressed as a dollar value at clause 5 (v) of the agency agreement. 3. The applicants submit that there is a breach of regulation 9 (2) in schedule 7 of the regulations that may disentitle the respondent from receiving any commission on the sale. The regulation is set out as follows: 9 Remuneration (1) The agreement must include a term specifying: (a) the circumstances in which the licensee is entitled to remuneration (by way of commission or otherwise) for services performed under the agreement, and (b) the amount of the remuneration or the way in which it is to be calculated, and (c) when the remuneration is payable. (2) If the agreement relates to the sale or purchase of residential property and provides for payment of commission to the agent calculated as a percentage of the sale or purchase price, the term must also specify the amount of the remuneration to which the licensee will be entitled calculated on the basis of a specified estimated sale or purchase price for the property.