Chalhoub v Astro Real Estate Holding Pty Ltd [2018] NSWCATAP 217

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Chalhoub v Astro Real Estate Holding Pty Ltd [2018] NSWCATAP 217 Hearing dates: 5 September 2018 Date of orders: 18 September 2018 Decision date: 18 September 2018 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member L Wilson Senior Member Decision: Appeal dismissed Catchwords: Appeal- Whether real estate agent commission payable- Held no appealable error- Appeal dismissed Legislation Cited: Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Antoun Chalhoub, appellant Astro Real Estate Holding Pty Ltd, respondent Representation: Appellant, Self Represented

Solicitors: P Doherty, Respondent File Number(s): AP18/30187 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 19 June 2018 Before: S Smith General Member File Number(s): GEN 17/45779

REASONS FOR DECISION

Background 1. The appellant in these proceedings, Antoun Chalhoub filed an application in the Consumer and Commercial Division of this Tribunal on 26 October 2017 in which he sought an order to the effect that he was not required to pay the sum of $16,720 to the respondent Astro Real Estate Holding Pty Ltd being commission claimed by the respondent for having effected the sale of a property which the appellant jointly owned with his wife. 2. On 19 June 2018 a Member of this Tribunal dismissed the application and ordered that the appellant pay the respondent the sum of $16,720. In dismissing the application the Member noted that in the course of cross examination the appellant had "proved a querulous and uncooperative witness", had refused to answer questions put to him and had vacated the witness box. The Member had informed the appellant that if he refused to answer questions he was empowered to dismiss the proceedings because his conduct "was causing definite prejudice to the respondent." The Member then proceeded to dismiss the proceedings and noted that the Tribunal was thereby empowered to order the appellant "to pay the amount in issue to the respondent." 3. The audio recording of the proceedings before the Member has been made available to us, and we have listened to it. It is clear that the respondent's solicitor had embarked upon a careful and meticulous and detailed cross examination of the applicant. It was also clear that the appellant was becoming increasingly frustrated by the process, although the Member did endeavour to explain to the appellant the necessity for him to give evidence. Towards the end of the hearing the appellant told the Member that he was feeling unwell and that he was unable to proceed. The appellant applied for an adjournment which was opposed by the respondent. The Member determined to proceed, and dismissed the appellant's application, relying on the provisions of clause 10 of Schedule 4 to the Civil and Administrative Tribunal Act ("the Act"). In effect, the Member found that the failure of the appellant to answer questions in cross examination unreasonably disadvantaged the respondent enabling him to dismiss the application.