Buyers Club Pty Ltd v Bhasin

NCAT Appeal Panel|2023-01-19

REASONS FOR DECISION

This is an appeal by a real estate buyer's agent from a decision of the Tribunal ordering it to pay (by way of refund) the up-front fee it charged the respondents in consideration of the appellant providing buyer's agents' services to the respondents.
The appellant did not appear at the hearing before the Tribunal.
The two basal questions raised on the appeal are whether the Tribunal erred in proceeding with the hearing in the absence of the appellant, and, whether the Tribunal erred in its decision.
At the conclusion of the hearing of the appeal we ordered that the appeal be dismissed, and that we would deliver reasons subsequently. These are those reasons.

The respondents paid the appellant the agreed fee of $14,900 at that meeting as requested.
Thereafter the appellant introduced the respondents to various properties which the respondents considered unsuitable.
In September 2020 the respondents met with the appellant and sought a refund of the fee paid on the basis that they were not happy with the properties being referred to them.
During this meeting the appellant proposed that the respondents enter into an agreement to buy a duplex property which was to be built in Morisset, NSW.
The respondents obtained finance for this purchase from a lender in February 2021.
It was originally anticipated that the purchase would settle early in 2021. This date was then pushed forward until, ultimately, the respondents were advised on 21 April 2022 that the development was not proceeding, and their deposit would be refunded.
The respondents sought a refund from the appellant. That request was refused.
On 27 June 2022, the respondents commenced proceedings against two directors of the appellant (Ms Metri and Mr Hallack) and what was named "The Trustee for Buyers Club Unit Trust". In the application the respondents sought a refund of the $14,900 fee they had paid to the appellant together with some other charges. The proceedings were allocated to the Consumer and Commercial Division of the Tribunal.
The postal address given for each of the three then named respondents to the application was the same, namely the registered office address (established by an ASIC search dated 27 June 2022) of the appellant.
Rule 13(2)(b)(ii) of the Civil and Administrative Tribunal Rules 2014 (NSW) (the Rules) says that a notice or document may be served on a person or body by posting a copy of the notice or document, addressed to the person or body to the person's or body's business or residential address (or the business or residential address last known to the person or body serving the notice or document).
Rule 13(2)(h) of the Rules says that a notice or document may be served on a corporation by serving a copy of the notice or document on the corporation in any manner in which service of such a notice or document may, by law, be served on the corporation.
Section 109X of the Corporations Act 2001 (Cth) says that for the purposes of any law, a document may be served on a company by posting it to the company's registered office.
The Tribunal file indicates that a copy of the respondent's application was posted to the three then named respondents to the application, together with a notice saying that a conciliation hearing would be held by and at the Tribunal on 19 September 2022.
On 19 September 2022, the Tribunal held the conciliation hearing. The respondents appeared in person, and Mr Phil Harker appeared on behalf of the three then named respondents to the application. Mr Harker also attended the hearing of this appeal (although he did not represent the appellant). He told us he was the appellant's Sales Manager.
The conciliation was unsuccessful, and the Tribunal made the following directions which were set out in writing and posted to all parties: "1. By Determination of member, on 19 July 2022 the hearing was adjourned to a date to be fixed by the Registrar. 2. The respondent's name THE TRUSTEE FOR BUYERS CLUB UNIT TRUST, is amended to THE BUYERS CLUB PTY LTD. 3. SAMARA METRI is removed as a respondent. 4. ALI HALLAK is removed as a respondent. 5. The applicant shall provide to the respondent and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the applicant intends to rely at the hearing by 02-Aug-2022. 6. The respondent shall provide to the applicant and the Tribunal, either in person or by post, a copy of all documents (see note below), on which the respondent intends to rely at the hearing by 16-Aug-2022."
The postal address used by the Tribunal for the written directions mentioned above and the other notices mentioned below was the appellant's registered office address as disclosed by the ASIC search dated 27 June 2022. It follows that the written directions and other notices sent by the Tribunal to the appellant's registered office were served in accordance with the Rules and law mentioned above.
We note that compliance with the Tribunal's directions is mandatory, not voluntary - s 36(3) of the Civil and Administrative Tribunal Act 2013 (NSW).
On 25 July 2022, the Tribunal posted notice of the hearing date to the parties. The proposed hearing date was 12 September 2022.
On 28 July 2022, the hearing date of 12 September 2022 was adjourned by consent to a date to be fixed.
On 29 July 2022, the now respondents (Mr and Mrs Bhasin) filed and served the documents upon which they wished to rely at the hearing.
On 2 August 2022, the Tribunal posted notice of the new hearing date to the parties. The proposed hearing date was 7 October 2022. That notice was not returned as "undelivered" to the Tribunal by Australia Post.
No documents were filed and served by the appellant by the due date (16 August 2022) or at all.
On 7 October 2022, the Tribunal commenced the hearing of the parties' dispute. The respondents appeared, but there was no appearance by the appellant.
Rule 35 of the Rules allows proceedings in the Consumer and Commercial Division of the Tribunal (such as these) to proceed in the absence of a party in certain circumstances. That rule says: 35 Ex parte proceedings in Consumer and Commercial Division (1) This rule applies to proceedings for the exercise of functions of the Tribunal that are allocated to the Consumer and Commercial Division of the Tribunal. (2) Where a hearing is held for proceedings to which this rule applies, the Tribunal may proceed to hear the proceedings in the absence of a party who has failed to attend the hearing if - (a) the Tribunal is satisfied that notice of the hearing was duly served on the party, or (b) the Tribunal, being satisfied that service of notice of the hearing on the party has been duly attempted or having given directions under rule 15 to bring it to the notice of the party, considers that justice requires that the matter be dealt with in the absence of the party.
The Tribunal proceeded to hear the case, the Tribunal impliedly being satisfied that notice of the hearing was duly served on the appellant (which it was) and that justice required the matter to be dealt with in the absence of the appellant.

The Tribunal's Decision

The Tribunal considered the terms of the written agreement between the parties and reasoned as follows: 23. The agreement between the parties is very much a bare bones agreement. It states services to be provided and the price to be paid for those services. It also notes that the service fee will be fully refundable if finance is not approved. There are no other terms and conditions regarding the length of time over which services are to be provided or how the agreement is to come to an end. 24. It does appear that the agreement contemplates the successful execution of a property purchase. Services to be provided by the respondent for the $14,900 service fee include "negotiation of property transactions", "property purchase", "pest and building report management (supplier fees additional)", "Legal contract review (conveyance fees additional)", "Managing repair quotes to make property tenant ready". 25. In the absence of specific terms and conditions it is reasonable to interpret the agreement as to provide the services required for the purchase of one investment property and that the agreement would then be exhausted. 26. The situation here is that the applicants were advised by the respondent to enter into the Morisset transaction. They spent two years waiting for this transaction to come to fruition but it ultimately failed through no fault of the applicants. 27. In the period of two years circumstances have changed significantly. This goes to the fundamental ability of the applicants to obtain finance for this type of investment opportunity at the present time. The applicants have produced a letter from their mortgage broker advising that finance would not be available to them now given current circumstances. 28. On the evidence before me I find that the respondent has not provided the applicant with an acceptable investment property opportunity in a reasonable time. As a result the service fee should be refunded.
A fair reading of those reasons, and allowing for some broadness of expression and truncated reasons not inappropriate in a busy tribunal receiving approximately 70,000 new applications yearly, 54,000 of which are allocated to the Consumer and Commercial Division, reveals that the Tribunal found there was an implied term of the agreement that no fee would be payable to the appellant unless, through its efforts, the respondents were successful in purchasing a property. It is also readily apparent that the Tribunal found there was an implied term that the appellant would introduce the property which the respondents would purchase within a reasonable time.
The Tribunal then found, in substance if not in terms, that the time between the signing of the contract (1 August 2020) and the commencement of the respondents' proceedings in the Tribunal (27 June 2022) was a reasonable period, and that since there had not been a successful property introduction by the appellant to the respondents within that time, the appellants were in breach of that implied term. That breach amounted to a repudiation of the agreement which the respondents were entitled to, and did, accept, thus bringing the agreement to an end.

The Appeal

The appellant filed a Notice of Appeal claiming that it had not had the opportunity to be heard at the Tribunal hearing. The appellant said in its Notice of Appeal that the initial correspondence relating to the proceedings was not received by its office "whatsoever", and that the only correspondence received by its office were the orders made on 7 October 2022. It said that it was essential that it be given an opportunity to be heard in relation to the respondents' claim.
On 16 November 2022, the Appeal Panel made a number of directions for the preparation of the appeal. Amongst other orders, the Appeal Panel made the following order: 3. The Appellant is to lodge with the Appeal Registry and give to the Respondent by 01 December 2022: (a) All the evidence given to the Tribunal at first instance on which it is intended to rely; (b) Any evidence not provided to the Tribunal at first instance in making the decision under appeal, on which it is intended to seek leave to rely; (c) The Appellant's written submissions in support of the appeal; and (d) If oral reasons were given and/or what happened at the hearing at first instance is being relied on by the Appellant in the appeal, a typed transcript of the relevant parts of the hearing together with the sound recording of the entire hearing.
The appellant complied with that order, and particularly supplied documentary evidence which had not been provided to the Tribunal at first instance but which the appellant intended to seek leave to rely upon on the appeal.
Importantly, that new evidence did not include any evidence (as distinct from an unsworn and uncorroborated assertion in written submissions authored by an unknown person) to support the contention in its Notice of Appeal that the initial correspondence relating to the proceedings was not received by its office and that the only correspondence received by its office were the orders made on 7 October 2022.
The Tribunal file revealed that three pieces of correspondence was posted by the Tribunal to the appellant (the initial application with notice of the conciliation hearing date, the directions made on 19 July 2022 and the notice of the first hearing date). On the appeal the appellant accepted that that correspondence had been received, a concession contradictory of the assertion made in the Notice of Appeal that no correspondence was received other the Notice of Order dated 7 October 2022 (the Tribunal's written reasons now appealed from).
In oral submissions the appellant also contended that the agreement contained additional pages with Terms and Conditions which contradicted the implied terms found by the Tribunal.
On this appeal we have proceeded on the basis that the appellant has two grounds of appeal. First, that the Tribunal erred in proceeding with the hearing in the absence of the appellant and, second, the Tribunal erred in its reasoning on the matter in dispute which led it to make the wrong decision. We shall consider the two points in that order.

Decision

As the NCAT's Guideline 1 - Internal Appeals makes clear, an appeal is not a second hearing. On an appeal an appellant must show the Tribunal at first instance made some type of relevant mistake or error which caused it to arrive at the wrong result or lead new evidence which would justify a different result or a new hearing.

The Appellant's Non-appearance

No mistake or error was identified by the appellant in the Tribunal's decision to proceed with the hearing in the absence of the appellant.
We appreciate the appellant's representative is not legally trained. For that reason, as with all unrepresented persons, it was appropriate for us to review the appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it was possible to discern grounds that may either raise a question of law or a basis for leave to appeal - Cominos v Di Rico [2016] NSWCATAP 5 and the cases cited therein.
Having done so, no error which may give rise to a question of law or provide grounds for leave to appeal is apparent to us (one of those is necessary for a successful appeal).
The Tribunal did not err in proceeding with the appeal in the absence of the appellant. The appellant was served with notice of the hearing as required under the Rules, and the Tribunal's decision to proceed was justified by the justice of the case.
A roughly similar set of circumstances were present in the case of Souleles v Todd [2016] NSWCA 91 (Souleles). In that case the Court of Appeal (Beazley P, as Her Excellency then was, and McColl JA) held that as the notice of hearing had been served in accordance with the applicable rules, and the Tribunal had considered that the matter should proceed in the interest of justice, then the Tribunal Member had acted in accordance with her statutory duties and had afforded procedural fairness (at [30]). So here.
It is also pertinent to note that the appellant had not filed any documents in accordance with the Tribunal's directions of 19 July 2022, a matter indicating an attitude that the appellant did not intend to participate in the Tribunal's processes. It has shown a similar disinclination on the appeal by failing to make any attempt to corroborate by evidence its assertion that the Notice of Hearing was not received as alleged in the Notice of Appeal and providing any evidence that the agreement contained additional Terms and Conditions which were drawn to the attention of the respondents.
In Souleles their Honours said at [33]: "In those circumstances we are of the view that there is no arguable case that the applicant was denied natural justice. It was open to the Tribunal Member to conclude that the applicant's non-appearance was consistent with his failure to file any evidence."
The same observation could be made in this case.
In any event, on the material before us, including the concession as to the receipt of three earlier pieces of correspondence sent by post to the appellant's registered address, we do not accept the uncorroborated and unverified assertion that the Notice of Hearing was not received.
It follows that no error has been shown to exist in the Tribunal's decision to proceed with the hearing in the absence of the appellant, and this ground of appeal must be dismissed.

The Decision of the Tribunal

No error of any sort is apparent to us in the Tribunal's decision.
The appellant submitted that there were more pages to the agreement than the one page in evidence, that those pages contained Terms and Conditions and those Terms and Conditions contradicted the terms found to be implied by the Tribunal. But the appellant did not include those pages in the material it filed and served for this appeal, and so the submission must be rejected. We note the first respondent submitted that no such document was ever shown to him.
We see no error in the Tribunal finding an implied term that the payment of the fee was dependent on a successful result. Such is consistent with the terms identified by the Tribunal. Further, we note that the handwritten note strongly suggests the payment of the fee was contingent of the setting up of a self-managed superannuation fund, a matter upon which the evidence (including the appellant's evidence on the appeal) was silent.
The Tribunal's decision could also be supported on that basis. That is, there was an express written term (on its proper interpretation) to the effect that the fee was refundable unless a self-managed superannuation fund were set up. As that event had not been proved to have happened, the fee was refundable.
The five requirements for the implication of a term in an agreement are: the term must be reasonable and equitable; the term must be necessary to give business efficacy to the contract; the term must be obvious; the term must be capable of clear expression; and the term must not contradict any express term of the contract - see BP Refinery (Westernport) Pty Ltd v Hastings Shire Council 180 CLR 266; (1977) 52 ALJR 20; 16 ALR 363, Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; 144 CLR 596 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; 149 CLR 337.
In our view the Tribunal's decision contains no error in the application of those principles.
Further, we see no error in the Tribunal finding an implied term that the appellant's obligations were to be performed in a reasonable time. Such a term is readily implied in agreements where the time for performance of a contractual obligation has not been specified - Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 per Bell P, with whom Basten JA and Emmett JA agreed on the general statements of principle, at [99]-[118].
The then applicable regulations we have referred to earlier in these reasons required such an agreement to have terms as to the circumstances in which remuneration would be payable, and the term of the agreement. The absence of written terms to that effect in the one-page agreement further justified the implication of the terms identified by the Tribunal.
Finally, we see no error in the Tribunal's factual finding that the period of time that had elapsed was a reasonable time. The evidence was that the respondents' circumstances had changed financially and family-wise, not unexpected in such a time frame, and both of which had become obstacles to them proceeding to purchase a property.
For those reasons we see no error in the Tribunal's decision on the merits of the case.

Orders

As noted earlier, we made an order dismissing the appeal on 19 January 2023. No further order is needed in these written reasons.

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: 03 February 2023

(2019) 101 NSWLR 679

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