Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106

District Court New South Wales

Medium Neutral Citation: Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106 Hearing dates: 27 & 28 November 2018 and 28 March 2019 Date of orders: 05 April 2019 Decision date: 05 April 2019 Jurisdiction: Civil Before: Strathdee DCJ Decision: (1) Verdict and judgment for the plaintiff in the sum of $226,840.00. (2) Defendant to pay the plaintiff's costs as agreed or assessed. (3) Liberty to apply to my associate within 7 days if an alternate costs order is sought. Catchwords: CIVIL – commercial actions – real estate agents commissions – power imbalance between the parties – statutory scheme Legislation Cited: District Court Act 1973 Property, Stock and Business Agents Act 2002 (NSW) Property, Stock and Business Agents Regulation 2003 (NSW) Category: Principal judgment Parties: Wei Liu (Plaintiff) Al Maha Pty Ltd (Defendant) Representation: Counsel: Mr Norrie (for the Plaintiff) Mr Sahade (for the Defendant) Solicitors: Revolance Legal (for the Plaintiff) Diamond Conway (for the Defendant) File Number(s): 2016/00305475

Judgment 1. By Amended Statement of Claim filed 20 November 2017 the plaintiff seeks payment of all outstanding commissions alleged to be owed to her by the defendant totalling $226,840.00. 2. On 27 November 2018 the matter was referred to me by the List Judge for hearing. 3. At the commencement of the hearing, Counsel for the defendant submitted that the District Court did not have jurisdiction to hear the matter, or make any rulings or orders as the proposed amendments to confer on the District Court the jurisdiction to hear "any action arising out of a commercial action in which the amount claimed does not exceed the Court's jurisdictional limit" had not yet received Royal Assent. 4. The legislation required to make such amendment was passed through Cabinet on 19 October 2018. 5. I did not adjourn the proceedings to wait for such assent as it was imminent, and that by the time that I gave judgement, it was expected that the amendment would have been made, and it would be retrospective. 6. The amendments to s 44 District Court Act 1973 (as passed in the Justice Legislation Amendment Act (No 3) 2018) commenced on 28 November 2018 – the second day of this trial. The amendment was intended to clarify that the District Court has, since 2 February 1998, had jurisdiction to hear such commercial matters. The amendment was made retrospectively. 7. Accordingly, I have the jurisdiction to hear and make orders in these proceedings. 8. The plaintiff tendered a chronology (Exhibit A), written submissions (Exhibit B), Court Book containing affidavits (Exhibit C), a bundle of emails (Exhibit D) and 3 further emails (Exhibit E). 9. Contained in Exhibit C were 2 affidavits of the plaintiff dated 26 June 2017 and 23 January 2018 respectively. It also contained an Affidavit of Antoine Bechara ("Bechara") affirmed 31 October 2017. Bechara is a director of Al Maha. 10. When the matter recommenced on 28 March 2019, defendant's counsel withdrew the tender of the affidavit of Bechara. Plaintiff's counsel then tendered, without objection, paragraphs 1, 2 and 4 of that affidavit. Those paragraphs read as follows: '1. I am director of AL MAHA PTY LTD ("Al Maha"), the defendant and am authorised to make this affidavit on its behalf. 2. I have been involved in the property development industry for more than 30 years and therefore have considerable experience. 3. Al Maha is a privately owned property development company which undertakes various projects in Sydney. At tab 1 of exhibit AB-A is a copy of the ASIC's register in relation to the Al Maha.' 1. The defendant tendered a chronology (Exhibit 1) and some copies of text messages (Exhibit 2).