Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20 Hearing dates: 30 August 2018 Date of orders: 16 January 2019 Decision date: 16 January 2019 Jurisdiction: Appeal Panel Before: L Pearson, Principal Member D A C Robertson, Senior Member Decision: (1) Extend time for lodgement of the notice of appeal to 21 June 2018. (2) Allow the appeal in part. (3) Vary the orders made on 24 March 2018 by substituting the amount of $7,277.55 for the amount of $13,582.78. (4) Lift the stay granted on 3 July 2018 of the orders made on 24 March 2018. (5) Direct the Registrar to pay to the respondents from moneys paid to the Tribunal by the appellant the amount of $7,277.55 plus interest pursuant to rule 39 of the Civil and Administrative Tribunal Rules 2014 (NSW) from 30 March 2018 to the date of payment. (6) Direct the Registrar to pay to the appellant the balance of moneys paid to the Tribunal by the appellant. (7) Remit to the Consumer and Commercial Division of the Tribunal, differently constituted, for determination according to law, by reference to the evidence before the Tribunal at the previous hearing and such further evidence as the Tribunal, in its discretion, may admit: (a) Whether the respondents are entitled to reimbursement by the appellant of management fees deducted by the appellant from moneys otherwise payable to the respondents in respect of the period up to 16 May 2017; and (b) Which, if any, of the items making up the amount of $1,003.28 referred to in paragraph [19] of the Member's decision dated 24 March 2018 were deducted from moneys otherwise payable to the respondents in respect of the period up to 16 May 2017; and for the making of appropriate orders consequential upon the Tribunal's findings. (8) Either party may within 14 days of the date of publication of this decision file written submissions concerning the costs of the appeal. Such submissions should address the question whether the issue of costs can be determined on the papers without a hearing. (9) If a party files submissions in accordance with Order (8) above, the other party may file written submissions in response within a further 14 days, such submissions should address the question whether the issue of costs can be determined on the papers and without a further hearing. Catchwords: APPEAL – procedural fairness – refusal of representation – apprehended bias – failure to address substantial submissions STATUTORY INTERPRETATION – Property, Stock and Business Agents Act – whether ss 36 and 55 applicable to unlicensed agents – whether appellant was acting as an agent within the meaning of the Act WORDS AND PHRASES – Real estate agent – on-site residential property manager Legislation Cited: Australian Consumer Law (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Fair Trading Act 1987 (NSW) Property Stock and Business Agents Act 2002 (NSW) Property, Stock and Business Agents Regulation 2014 (NSW) Cases Cited: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 122 Brown Brothers v Pittwater Council [2015] NSWCA 215 CG Constructions Pty Ltd v Hanson Constructions Materials Pty Ltd [2017] NSWCATAP 130 Collins v Urban [2014] NSWCATAP 17 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Equuscorp v Haxton (2012) 246 CLR 498 Jackson v NSW Land & Housing Corporation [2014] NSWCATAP 22 Johnson v Johnson (2000) 201 CLR 488 Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 Lewis v Bell (1985) 1 NSWLR 731 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Radaich v Smith (1959) 101 CLR 209 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 WABZ v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 134 FCR 30 Walker Corporation v Sydney Harbour Foreshore Authority (2009) 168 LGERA 1 Category: Principal judgment Parties: Profitability Consulting Pty Ltd (Appellant) Joanne Thorpe and Arthur Peterson (Respondents) Representation: Counsel: S Richardson (Appellant)