Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ashcroft Cleaning Services Pty Ltd t/as Wiseberry Acclaim Real Estate v Braganza [2019] NSWCATAP 14 Hearing dates: 28 November 2018 Date of orders: 09 January 2019 Decision date: 09 January 2019 Jurisdiction: Appeal Panel Before: M Harrowell, Principal Member T Simon, Senior Member Decision: (1) Charlene Braganza is joined as a respondent in the appeal. (2) Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013, a further hearing is dispensed with. (3) Leave to appeal is refused and the appeal is otherwise dismissed. Catchwords: APPEAL – Leave to appeal – finding of misrepresentation in connection with agency agreement – failure to disclose relevant market conditions – decision available on the evidence Legislation Cited: Civil and Administrative Tribunal Act, 2013 (NSW) Civil and Administrative Tribunal Rules, 2014 (NSW) Fair Trading Act, 1987 (NSW) Property, Stock and Business Agent's Act 2002 (NSW) Cases Cited: Collins v Urban [2014] NSWCATAP 17 Demagogue v Ramensky (1992) 39 FCR 31 Texts Cited: Nil Category: Principal judgment Parties: Ashcroft Cleaning Services Pty Ltd t/as Wiseberry Acclaim Real Estate (Appellant) Swail Braganza (First Respondent) Charlene Braganza (Second Respondent) Representation: Solicitors: Johnsons Law Group (Appellant) S Braganza (Self Represented) (Respondents) File Number(s): AP 18/38853 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal of New South Wales Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 7 August 2018 Before: M Tibbey, Senior Member File Number(s): COM 18/20840 reasons for decision Introduction 1. This is a dispute concerning the payment of commission in respect of a sale of property at Edmondson Park (property). 2. The appellant was the agent. The respondents (Swail and Charlene Braganza) were owners of the property. 3. The respondents entered into an Exclusive Agency Agreement with the appellant dated 29 August 2017 (agency agreement). The property was one a number of units, apparently in a strata scheme. The property was sold on 22 December 2017 for a price of $520,000.00. 4. The agency agreement provided for the payment of commission at a rate of 2%. However, following the sale, the respondents refused to pay the commission and commence proceedings COM 18/20840 seeking orders from the Tribunal that they be relieved from an obligation to pay any commission. 5. On 7 August 2018, the Tribunal made an order that the sum of $12,880.00 in respect of commission was not payable by the respondents and made a further order that no sum in respect of commission was payable to the appellant (Orders). The Tribunal provided written reasons for decision (reasons). 6. The appellant filed a Notice of Appeal on 4 September 2018 in which it sought the following orders: 1. That within 14 days of the date of these orders, the respondents are to pay to the appellant the sum of $11,440 in respect of commission on the sale of the property. 2. In the alternative, that within 14 days of the date of these orders the respondent pay to the appellant the sum of $8000 in respect of commission on the sale of the property. 3. That the respondents pay the appellant's costs of these proceedings. 1. We note in passing that the heading of the Orders in the proceedings at first instance refers to the applicant as Swail Braganza. Mr Braganza was the applicant in the proceedings at first instance However, both order 1 and 2 made 7 August 2018 refer to Swail Braganza and Charlene Breganza. No issue was raised about this matter in the appeal. Having regard to the fact both respondents were parties to the agency agreement, it was appropriate for the Tribunal to make orders in favour of both Swail and Charlene Braganza. We assume this was done following an order joining Charlene Braganza as a respondent. 2. However, the Notice of Appeal only names as a respondent Swail Braganza. Consequently, we should make a formal order joining Charlene Braganza as a respondent to the appeal. This is because the parties to an appeal include all those who were parties in the proceedings at first instance: see r 29(b) of the Civil and Administrative Tribunal Rules, 2014 (NSW) (Rules). Further, Charlene Braganza is a necessary party and should be joined pursuant to s 44(1) of the Civil and Administrative Tribunal Act, 2013 (NSW) (NCAT Act). Notice of Appeal and history of appeal proceedings 1. The appellant raised four grounds of appeal. These were: 1. The Tribunal erred in its construction and application of section 32 of the Property, Stock and Business Agent's Act 2002 (NSW) (the Act). 2. The Tribunal erred in finding that the fact that two units were being sold by the same agency raises the question of a conflict of interest. 3. The Tribunal erred in finding that the appellant breached section 52 of the Act by misrepresenting the state of the market. 4. The decision of the Tribunal was unreasonable and cannot be supported having regard to the evidence. 1. The appellant also sought leave to appeal. On this aspect, the appellant said the decision was not fair and equitable because the respondents have benefited by receiving services for which they have not had to pay. The appellant also said that the decision was against the weight of evidence in that 1. the respondents gave written instructions to reduce the price as the property was not selling at the price initially asked for; and 2. comparative sales information demonstrates the price achieved for the sale was reasonable. 1. The respondents filed a Reply to Appeal. In short, the respondents refer to the factual conclusions which the Tribunal reached and say these were supported by the evidence presented at the hearing. As to the issue of statutory construction, the respondents said that there was an error in the Tribunal's reasons in the reference to s 32 of the Act. It is clear from the reasons that the reference was to s 48 which relates to a duty of licensee not to act for both the buyer and seller of land. In relation to ground 4, the respondents said that the Tribunal's preference of their evidence to that of the appellant did not make the decision unreasonable. Rather, the Tribunal made reference to the relevant evidence and provided reasons justifying its conclusions. 2. In relation to the issue of leave to appeal, the respondents said they acted on advice given by the agent, that they were "pressurised … to accept a lower price of 500 K", and that the state of the market was misrepresented to them. 3. The parties filed written submissions and made oral submissions at the hearing of the appeal. 4. The parties also provided documentary evidence from the original hearing. In addition, new evidence was provided by the respondents, a matter to which we will return below. In relation to the respondents' evidence, the Appeal Panel admitted, as Exhibit A, a bundle of documents relied upon by the respondents in the proceedings at first instance. 5. As is evident from the grounds of appeal, the appellant sought to challenge various factual matters. However, prior to the hearing, neither of the parties had provided a complete copy of the sound recording or transcript of the proceedings recording the oral evidence. 6. Consequently, at the conclusion of the appeal, directions were made to allow for the transcript to be provided and further submissions made. Those directions included requiring the parties to provide submissions about whether a further hearing could be dispensed with 7. The transcript and supplementary submissions were subsequently filed by the parties. 8. The appellant accepted an order could be made dispensing with a further hearing. The respondent took a different view. The respondent said: New hearing-considering the number of documents provided at various stages, it would only be fair that both parties are given the opportunity to present a case. This shouldn't take much time cause all evidence and submissions are already provided but there could be vital information that isn't picked up due to the document provided at various stages … 1. In our view, an order should be made dispensing with a further hearing. There has been an ample opportunity for each of the parties to file further written submissions on relevant topics. An additional hearing would simply prolong this matter. In circumstances where both parties failed to provide a full transcript, but have now had an opportunity to do so and make further written submissions, we are not satisfied there is any need for oral submissions. 2. Accordingly, we will make an order dispensing with a further hearing pursuant to s 50(2) of the NCAT Act. Consideration 1. The Tribunal made an order that an amount of $12,880 in respect of commission was not payable by the respondents. The power to do so is found in s 79N(d) of the Fair Trading Act, 1987 (NSW) (FT Act) which provides: (d) in the case of a claim for relief from payment of money—an order declaring that a specified amount of money is not due or owing by the claimant to a respondent. 1. The Tribunal also made an order that no other amount of commission was payable pursuant to the agency agreement in respect of the sale of the property. 2. In making these orders, the Tribunal made the following findings: 1. The respondents were induced to enter the contract to sell the unit for $520,000 partly on the basis of a representation that the commission payable would be $8000: reasons at [24]. 2. The statement of the appellant, that there were no other buyers around at the time, was not true. Rather, at the same time Mrs Aydin purchased the respondents' property (unit 33), her former husband purchased unit 22 at a price of $570,000: reasons at [28]. 3. The fact of the former husband also purchasing within the same complex was not disclosed to the respondents until 8 January 2018, after the respondents had entered into a contract with Mrs Aydin: Reasons at [30]. 4. The appellant misrepresented both the amount of commission it would accept if the respondent entered into a contract to sell at $520,000 and misrepresented the state of the market and that the respondents could, potentially, have achieved a higher price than that which they were paid. In this regard, while the Tribunal noted that the comparative sales evidence provided by the appellant was in respect of other units in different buildings, the Tribunal concluded that "the evidence of what was occurring in the very block in question, at the precise time in question is persuasive": reasons at [31]. 5. The appellant failed to disclose a material matter, namely the purchaser of the property "was the spouse of someone else who was buying a unit in the same complex at the same time for a significantly higher figure": reasons at [33]. 6. The appellant failed to disclose that the agency was acting for the potential purchaser of the property prior to the respondents signing the contract to sell for $520,000: reasons at [35] 1. It is against this background that the appellant's grounds of appeal need to be considered. New evidence of respondents 1. Before dealing with the appellant's grounds of appeal, it is appropriate to determine the respondents' application to adduce new evidence. 2. This evidence includes a statutory declaration of Charlene Braganza made 11 November 2018 and some sales information subsequently found on the Internet by the respondents and relied upon as evidence of relevant market conditions. 3. As is evident from the Tribunal's reasons, the proceedings were determined in favour of the respondents, in part, on the basis there had been a misrepresentation of the prevailing market conditions. 4. In our view, to the extent information subsequently published on the Internet showed market conditions prevailing at or prior to the date the respondents signed the contract for sale, that evidence should have been produced at the original hearing. Further, to the extent that evidence relates to sales in which the appellant was involved, the respondents could have cross-examined the appellant's representative, Mr Montes on this subject matter. Insofar as the evidence related to the sale of unit 22 for a price of $570,000, this evidence was otherwise before the Tribunal. Insofar as the evidence relates to subsequent sales information, this information would not have been known to the appellant at the time it was acting on the sale of unit 33 and is therefore irrelevant to the issue of misrepresentation. 5. It follows that the proposed new evidence should not be allowed in this appeal. 6. As to the statutory declaration of Charlene Braganza, clearly this was information which could have been provided prior to the original hearing. As such, the respondent should not be permitted to do so on appeal. 7. For these reasons the new evidence is rejected. The Tribunal erred in its construction and application of section 32 of the Act. 1. At [17] of the reasons reference is made to s 32 of the Act. This reference concerns an obligation on a licensee not to act for a buyer and seller of land. Clearly, this is a typographical error and should be a reference to s 48. Section 48 provides: 48 Duty not to act for both buyer and seller of land (1) A licensee must not act in his or her capacity as licensee on behalf of both the buyer and the seller of land at the same time. (2) A licensee must not enter into agency agreements in respect of the purchase or sale of land if the performance of services by the licensee under the agreements will or can result in the licensee acting in his or her capacity as licensee on behalf of both the buyer and the seller of the land at the same time. 1. In fact, s 32 refers to an obligation on a licensee to supervise the business carried on, including an obligation to supervise persons engaged in the business. This reference is found at [23] of the reasons. 2. The appellant challenges the Tribunal's conclusion that the reference by Mr Montes, in his oral evidence, to "my buyer", was a concession that he was acting for the purchaser of unit 33, Ms Aydin, at the same time as the appellant was acting as agent for the respondents. 3. Consequently, there was no basis for the conclusion at [35] of the reasons, namely there had been a failure to disclose to the respondents that the appellant was acting for a potential purchaser. 4. This challenge is put forward on a "no evidence" ground. 5. Alternatively, it would seem leave is sought to appeal the factual conclusion. In this regard, the grant of leave is regulated by Sch 4 cl 12 of the NCAT Act and the principles in Collins v Urban [2014] NSWCATAP 17. 6. We do not accept the "no evidence" submission. While the appellant seeks to characterise the expressions "my buyer" and "my client", used by Mr Montes in his evidence, as "typical real estate agent jargon", the words used constitute evidence capable of supporting a finding that the appellant was acting for a potential purchaser. Indeed, the appellant's submission (at [6] of the appellant's supplementary submissions (ASup) dated 10 December 2018) that these expressions need to be considered "in the context of the whole of Mr Montes' evidence" is, itself, acceptance of the fact of some evidence which needs to be considered in the context in which it was given. 7. On the other hand, we do accept that the evidence, when considered as a whole, leads to the conclusion that the "buyer" or "client" being referred to by Mr Montes was not Ms Aydin. Rather, it was another potential (but unidentified) purchaser who had offered $505,000 but was not, ultimately, the successful offeror: see Transcript (tspt) p 23 line 22, p 23 line 42-44, and p 25 lines 29-40. The fact it was not Ms Aydin to whom Mr Montes was referring seems clear from the evidence Mr Montes gave at p 25 line 50 and following. Following Mr Montes giving evidence that Mr Braganza wanted "500 in [his] pocket" (tspt p 25 line 44), Mr Montes said: So he didn't want to pay 8000 [referring to commission]. Actually he consulted with his wife, I remember now, and he rang me the following morning and he say "Oscar, no. We're not. We want 500 in our pocket". I said "Okay, I'll let the buyer go" and the buyer went. Then all these other things came in and the agreement was of 8000 on the $500,000. That's as far as I know. The $8000 commission was only for my buyer's offer because I spoke to him. I don't know more, any more about his conversation on that day Michelle went to see him or not. I don't know whether what they agree on commissions. You got the stat deck from Ms Chaves here. 1. However, for reasons that follow, we do not propose to grant leave to appeal on this basis. In our view, the other findings of the Tribunal justified the decision which has been reached. Consequently, we are not satisfied the appellant may have suffered a substantial miscarriage of justice. The Tribunal erred in finding that the fact that 2 units were being sold by the same agency raises the question of a conflict of interest. 1. The Tribunal made no finding of conflict of interest. This is made clear in the reasons at [29]. While the Tribunal said that "it appears that, arguably, there was an attempt to hide the price difference from [the respondent] by altering the web post when the [respondent] became aware of the issue" (referring to sales information posted on the website concerning the relevant sale) the Tribunal expressed "no concluded view" on these matters. 2. We do not accept the submission that "the mere fact that [these matters are] referenced in the findings of the Tribunal"… "mean that it is matter which was given some degree of consideration … and has likely informed [the Tribunal's] decision. 3. We have set out the findings of the Tribunal on the issue of misrepresentation above. These findings do not in any way rely upon any conflict of interest. 4. Accordingly, this ground of appeal is not established. The Tribunal erred in finding that the appellant breached section 52 of the Act by misrepresenting the state of the market. 1. This ground challenges the findings of fact. Substantially, this ground raises matters for which leave to appeal is required. 2. The only aspect of this ground which might raise a question of law is a submission that "there was no evidence put to the Tribunal by the [appellant] about the contract for unit 22. Therefore, there was no evidence which could support the Tribunal's finding that the property sold (being contracts exchange) 'at the same time'" (see para 28 of appellant's submissions (AS) dated 29 October 2018). 3. The evidence provided to the Tribunal included: 1. The agency agreement. 2. Internet listings recording both properties as being sold on 22 December 2017 from the: see Exhibit A. 3. Internet listings showing that the price for unit 22 was altered from $570,000 to $520,000 on the appellant's website: see Exhibit A. 4. A copy of the front page of the contract for sale of the property (unit 33) dated 2 December 2017 (contract). 5. That the cooling off period of the contract had been extended on at least two occasions: Tspt p 9 line 27 and following. 6. That the purchaser of unit 22 and the purchaser of unit 33, Mrs and Mr Aydin respectively, were formerly husband and wife: tspt p 22 line 17 and following. 7. That Mr Braganza did not have access to all the sales details for unit 22, only of the relationship between that purchaser and his purchaser, the Aydins: Tspt p 19 line 34 and following. 1. We also note the documents attached to the Notice of Appeal, apparently relied upon by the appellant in the proceedings at first instance, did not include the sales advice in respect of unit 22. However, it did include a sales advice for unit 26, which was subsequently sold on 23 April 2018. Also, it did not include any Internet listing advice for unit 22. This would suggest that, although unit 22 had been sold no later than 22 December 2017, the appellant chose not to provide this documentary evidence in response to the respondents' claim. 2. It is in this context that the appellant submits the Tribunal fell into error in concluding unit 22 was sold "at the same time". 3. The appellant says the Tribunal should have concluded that the respondents have failed to discharge their onus of proof. The appellant submits the respondents have failed to establish that there was relevant market information in existence which should have been disclosed, namely that there was a sale or potential sale of unit 22 at a price of $570,000. In particular, the appellant says there is no evidence that there was any offer to purchase unit 22 at a price of $570,000 at all prior to 2 December 2017, being the date when the contract for unit 33 was signed by Mrs Aydin. 4. In support of this contention, the appellant relies on the following matters: 1. The Aydins were in fact separated at the time; 2. Unit 22 is a separate property with a separate purchaser in a separate negotiation; 3. The appellant did not fail in its duty to the vendor of either units 22 or 33. Rather it obtained the best offers it could in relation to each property. 1. Further, and in any event, the appellant says that it was under no obligation to advise the respondents of purchasers of other units. Rather, the role of the appellant, as agent, was to put forward offers received for the respondents' property for their consideration. No offer was made to purchase unit 33 for $570,000 and the Tribunal inappropriately drew an inference that "the purchaser who purchased unit 22 might have considered purchasing the subject property", such inference being unavailable: AS para 33 and following. 2. As is clear from the submissions made, the real issue for determination in this appeal is whether the Tribunal was correct in concluding there had been a relevant misrepresentation in the context of the evidence which was provided by the parties. 3. Misrepresentation can occur in circumstances where positive statements are made and in circumstances of silence. In this regard, s 52(2) of the Act provides: … a statement, representation or promise is taken to be false, misleading or deceptive if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exists, whether or not the statement, representation or promise indicates the state of affairs does exist. 1. The statement of Black CJ in Demagogue v Ramensky (1992) 39 FCR 31, a decision which concerned misleading and deceptive conduct in the context of s 52 of the Trade Practices Act, 1974 (Cwth), is pertinent in considering the manner in which evidence in the present case is to be evaluated. At 32 his Honour said: Silence is to be assessed as a circumstances like any other. To say this is certainly not to impose any general duty of disclosure; the question is simply whether having regard to all the relevant circumstances there has been conduct that is misleading or deceptive or that is likely to mislead or deceive. To speak of 'mere silence' or a duty of disclosure can divert attention from that primary question. Although 'mere silence' is a convenient way of describing some fact situations, there is in truth no such thing as 'mere silence' because the silence always falls to be considered in the context in which it occurs. That context may or may not include facts giving rise to a reasonable expectation in the circumstances of the case that if particular matters exist they will be disclosed. 1. In the present case, the appellant was acting as agent under the Act. In doing so, it was required to comply with the code of conduct under the Property, Stock and Business Agents Regulation 2014 (NSW) (Regulation). The general rules of conduct found in Schedule 1 of the Regulation provide the following: 1. the agent must comply with fiduciary obligations arising as an agent: cl 2; 2. the agent must act honestly, fairly and professionally with all parties in a transaction: cl 2; 3. the agent must exercise reasonable skill, care and diligence cl 4; 4. the agent must act in the client's best interests at all times unless it would be contrary to the Act or regulations or otherwise unlawful to do so: cl 6. 1. There is no dispute that the role of the agent involved the introduction of prospective purchasers, negotiating on behalf of the vendor and expressing the agent's opinion from time to time concerning the current estimated selling price. In relation to this last aspect, so much is clear from the sales inspection report dated 30 August 2017. 2. The appellant did not suggest that it was not obliged to provide current market information to the respondents as part of its role as an agent and advising in relation to prospective purchasers. 3. The Tribunal found the appellant had misrepresented the position concerning the commission finally payable and had misrepresented the state of the market by failing to disclose the sale or prospective sale of unit 22. 4. The appellant says there was no evidence to support the last finding and that such a finding was not available on the evidence. 5. We do not agree. 6. The ultimate findings of the Tribunal in relation to the failure to disclose the potential sale of unit 22 have a number of aspects. 7. First, the appellant knew both Mrs Aydin and Mr Aydin wished to purchase in the same building. The agent had an existing relationship with them, assisting in the sale of their property at Preston. We note that the Preston address appears to be the same address as recorded for Ms Aydin on the contract when she purchased unit 33: see tspt p 23 line 1. 8. Secondly, it is improbable that the potential sale of unit 22 was not known by the appellant prior to 22 December 2017 and at the time the property (unit 33) was sold. This is because: 1. it is unlikely Mr Aydin first saw and decided to purchase unit 22 on 22 December 2017 and signed the contract on the date; 2. it is unlikely that the appellant had no knowledge of the proposed acquisition by Mr Aydin; 3. there was evidence that unit 22 was sold "at the same time" as unit 33: see tspt 38 line 21 and following. 1. Thirdly, the appellant did not provide evidence as to the precise circumstances of the sale of unit 22 nor why this information was not disclosed to the respondents. This was despite the appellant: 1. having been involved in and having a comprehensive understanding of the building, having sold lots off the plan; 2. having been engaged in continuous discussions with the respondents about the market conditions in the context of whether they should initially exchange contracts and whether they should extend the cooling off period; 3. being the party who had information about unit 22 available to it, including as to price; 4. the sale of unit 22 being a comparable sale relevant to determining whether the advice concerning market conditions in 2017 was accurate; and 5. knowing that the substantive complaint made by the respondents was that this information had not been disclosed to them and was relevant both to whether they sign the contract and whether they should extend the cooling off period. 1. Against these facts, respondents gave evidence about the circumstances in which they became aware of this sale of unit 22. Put simply, they were not advised about this sale or prospective sale at any time prior to 22 December 2017. 2. The Tribunal made findings adverse to the appellant. These included: 1. a credit finding concerning the agreement to reduce the commission: reasons at [24; 2. a finding that Mr Montes did not disclose the fact he was acting for Mr Aydin until after 8 January 2018: reasons at [30], that is well after the contract with Mrs Adyin had been signed and several weeks after the cooling off period had expired and 3. a finding that the appellant had failed to provide evidence "of what was occurring in the very block in question, at the precise time in question". 1. Having regard to the evidence to which we have referred above, we are satisfied the conclusions that the Tribunal reached were available to it and, to the extent the Tribunal drew inferences adverse to the appellant, it was entitled to do so. 2. It follows that we are not satisfied any relevant error has been established or that the Tribunal's finding of misrepresentation should be set aside. Rather, the evidence and the manner in which it was treated by the Tribunal is reflective of the appellant not fully informing the respondents of all circumstances concerning the prevailing market conditions in respect of the building in which unit 33 was located and of the appellant failing to provide a proper explanation concerning the circumstances of the sale of unit 22. 3. It seems to us that the fact the market may have been falling is not an answer to the issues which have been raised by the respondents in the proceedings at first instance. It is clear from their evidence, which was accepted by the Tribunal, that the respondents would not sell at any price. While the evidence discloses that they lowered their expectations concerning an appropriate asking price, and were prepared to sign a contract for $520,000 (an amount significantly less than the initial sales inspection report estimate), they did so based on advice. 4. They did not claim damages for any lost opportunity, a matter which is unnecessary to consider in the context of this case. However, the evidence makes clear that they were not prepared to sell the property other than for an appropriate price having regard to the then prevailing market conditions. Of these market conditions they were not fully informed by the appellant. 5. In these circumstances, we are not satisfied the orders made by the Tribunal are inappropriate. The decision of the Tribunal was unreasonable and cannot be supported having regard to the evidence. 1. We do not accept that the decision is not fair and equitable simply because the appellant performed services for which it will get no remuneration. The fact an order is made preventing a person from receiving any remuneration by reason of their conduct does not, of itself, demonstrate a decision is unfair or inequitable. The Tribunal has express power to make such an order s 79 N of the FT Act. In exercising this power, the Tribunal must consider what remedy is appropriate having regard to the facts as found. 2. Otherwise, there are two aspects of the challenge made under this ground. 3. The appellant says that Ms Aguirre gave unchallenged evidence which should have been preferred over the evidence of the respondent. That evidence related to a representation concerning commission being limited to $8000 if the contract was signed at $520,000. 4. While the appellant relies on the fact that Ms Aquirre was not required for cross-examination, the appellant also submits that "at the directions hearing, the appellant was advised by the Tribunal that it was not necessary for Ms Aguirre to attend the hearing as a statutory declaration would suffice". Otherwise, the appellant says Ms Aguirre's evidence in a statutory declaration should be preferred to that contained in text messages and that the failure of the respondents to call Mrs Braganza was a matter which should have cause the Tribunal to reach a conclusion consistent with the evidence of Ms Aguirre. 5. There are several answers to this submission. 6. Firstly, there is no evidence being a transcript from the directions hearing. 7. Secondly, and in any event, it is clear that the Tribunal evaluated all of the available evidence and preferred the evidence of the respondents. In part, this decision was reached on the basis of contemporaneous documents in the form of text messages. 8. The Tribunal was entitled to consider all of the evidence and its reliance on contemporaneous documents was a reasonable and proper basis to proceed in the fact finding task. 9. Accordingly, no error is established. 10. The second challenge concerns the order relieving the respondents from any payment of commission. 11. It is unclear whether or not disbursements have been paid. The orders made do not, by their terms, relieve the respondents from an obligation to pay any disbursements, the order being limited to commission only. 12. In respect of remuneration in the form of commission, on any view the findings of the Tribunal would limit the recovery of commission to $8000 only. Having regard to our conclusions above, no error arises insofar as the orders made by the Tribunal prevent recovery of commission in excess of $8000. 13. The question is whether an order to relieve from payment of any amount of commission is appropriate in the circumstances. 14. As we have said above, the evidence discloses the respondent would not "sell at any price". In addition, the Tribunal concluded the respondents could potentially have achieved a higher price than was obtained. That is, the respondents may have declined to sell unless a higher price was achieved. 15. The appellant has not met its obligation to properly advise the respondents of the market conditions and allow them to make an informed decision about whether to sell and, if so, for how much. There is, at least, some evidence that a price substantially in excess of $520,000 could have been achieved for like units in the same building at the time the sale was affected. That evidence is the sale price for unit 22 of $570,000. Consequently, we are not satisfied that an order relieving the respondents of an obligation to pay any commission should be considered unreasonable. 16. The Tribunal was entitled to make an assessment about the amount of remuneration that should be paid in circumstances where there had been a failure by the agent. Having regard to the amounts involved, we are not satisfied the appellant may have suffered a substantial miscarriage of justice. Accordingly, leave to appeal should be refused. 17. The appellant applied for costs in the appeal. As it has been unsuccessful, that aspect of its claim should also be dismissed. Section 60 of the NCAT Act, which applies to these proceedings, provides that each party should pay their own costs. Consequently, no costs order should be made. Orders 1. The Appeal Panel makes the following orders: 1. Charlene Braganza is joined as a respondent in the appeal. 2. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act, 2013, a further hearing is dispensed with. 3. Leave to appeal is refused and the appeal is otherwise 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: 09 January 2019