Evans v Baystate Pty Ltd t/as Domaine Plus Real Estate

The Decision at First Instance

1. The Tribunal properly sought to identify the basis on which it had jurisdiction to hear the appellants' claims. It referred to s. 79D of the Fair Trading Act 1987 (NSW) (the FT Act) in identifying the appellants as "consumers" and the respondent as a "supplier" of, relevantly, services pursuant to the managing agent agreements. It identified the claims, therefore, as consumer claims within the meaning of s. 79E of the FT Act.
2. The Tribunal then referred to s 36(4) of the Property and Stock Agents Act 2002 (NSW) (the PSA Act) stating that by virtue of that section, "….a claim under that Act is a consumer claim within the meaning of Part 6A of the [FT Act]". The Tribunal then said: 13. Applications brought under the Fair Trading Act (NSW) 1987 must be brought within 3 years of the cause of action arising (section 79L of the Fair Trading Act). The cause of action in these matters accrues from the date on which the parties purportedly entered into the Agreements. 14. The applicants' cause of action for the Lurnea Property arose on or about 9 February 2017, that is, it arose more than 3 years prior to the commencement of proceedings on 9 March 2020. The effect of which is discussed below. 15. The cause of action for the Casula property arose on or about 18 May 2019, that is, within 3 years of prior to the commencement of proceedings on 9 March 2020. This application has been brought in time. 16. The value of the claim is less than $40,000. 17. The Tribunal is satisfied that it has jurisdiction under s. 79J of the Fair Trading Act (NSW) 1987. 18. The Australian Consumer Law ("ACL") is contained in Schedule 2 of the Competition and Consumer Act (Cwlth) 2010. 19. The provisions of the ACL apply in NSW by virtue of the provisions of its adoption in s 28 of the Fair Trading Act (NSW) 1987. (bold emphasis added)
3. The Tribunal then set out s 55 and s 55A of the PSA Act which are in the following terms: 55 No entitlement to commission or expenses without agency agreement (1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless - (a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of - (i) the person, and (ii) the licensee, and (b) the agency agreement complies with any applicable requirements of the regulations, and (c) a copy of the agency agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of the person. Note - Section 55A allows a court or tribunal to order that commission and expenses are recoverable in certain circumstances despite subsection (1). (2) The regulations may make provision for or with respect to regulating the form of agency agreements and the terms, conditions and other provisions that an agency agreement must or must not contain. Without limiting this subsection, the regulations may prescribe one or more standard forms of agency agreement. (3) Without limiting the means by which a copy of the agency agreement may be served on a person, it may be served by electronic means or by such other means as the regulations may allow. 55A Relief from disentitlement to commission and expenses (1) A court or tribunal before which relevant proceedings are taken may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled to the commission or expenses (under section 55) because of - (a) a failure by the licensee to serve a copy of the relevant agency agreement on the person within 48 hours after it was signed by or on behalf of the person, or (b) a failure of the relevant agency agreement to comply with the requirements of the regulations. (2) A court or tribunal is not to make such an order in circumstances of a failure to serve a copy of the agency agreement within the required time unless satisfied that - (a) the failure was occasioned by inadvertence or other cause beyond the control of the licensee, and (b) the commission or expenses that will be recoverable if the order is made are in all the circumstances fair and reasonable, and (c) failure to make the order would be unjust. (3) A court or tribunal is not to make such an order in circumstances of a failure of the agency agreement to comply with the requirements of the regulations unless satisfied that - (a) the failure is a minor failure, and (b) no loss has been suffered as a result of the failure by the person for whom or on whose behalf the services concerned were performed, and (c) failure to make the order would be unjust. (4) Proceedings are relevant proceedings if they are proceedings taken by a licensee for the recovery of commission or expenses from a person or proceedings on a consumer claim relating to commission or expenses (as referred to in section 36) in relation to which a licensee is a respondent.
4. Under a heading "Facts and Evidence" in paragraphs [31]-[53] of its reasons, the Tribunal referred to the entry into the managing agent agreements between the appellants and the respondent in respect to the two properties. Those agreements were entered into on different dates; on 9 February 2017 for the Lurnea property and on 9 March 2017 for the Casula property. The Tribunal then set out certain findings of fact about the entry into those agreements, their terms and the claims by the appellants with respect to each of those agreements. Those claims included complaints by the appellants in respect to each of the agreements that the respondent had not complied with the terms of s 55 of the PSA Act by pre-dating the agreements or not providing copies of the signed agreements to the appellants within 48 hours of their execution. The Tribunal also made various findings of fact about tenancies of both properties.
5. In respect to the agreement for the Casula property the Tribunal said: 43. The amount claimed by the applicants is: a. Repayment of Management Fees charged during the period of management: $1555.21; b. Repayment of Administration Fees charged during the period of management: $236.00; c. Lease Fees paid: $616.00 d. Replacement of Lock Expenses: 36.00 e. Reimbursement of failure to increase rent as instructed : $300 f. Reimbursement of monies retained in lieu of 120 days' notice of termination: $422.71; g. Costs including time to prepare and out of pocket expenses: $853.50 h. Total $4018.92
6. In respect to the agreement for the Lurnea Property the Tribunal said: 53. The applicants claim: a. Reimbursement of Management Fees paid under the Lurnea Agreement: $4808.14; b. Reimbursement of Administration Fees paid under the Lurnea Agreement: $495.00; c. Lease Fees: $33; d. Tribunal Filing Fees: $98.70; e. Plumbing Fees paid by the respondent under the Lurnea Agreement: $1,650.00; f. Reimbursement of fees paid in lieu of 120 days termination : $518.88; g. Loss of rent for 15 weeks 1 day at $30 per week for delay in renewing the tenancy agreement: $454.28; h. Amount of bond due from tenant un-obtained: $2480.00; i. Costs of applicants preparing for hearing and out of pocket expenses: $910.00 j. Total: $11,448.00
7. The Tribunal's reasons, quoted below, then set out its determination of the applicants' claims: 54. The applicants seek orders that the Casula and Lurnea Agreements are invalid and the fees charged by the respondent are refundable to the applicants because they do not conform with section 55 of the PSA because of, amongst other things, failure to serve copies, and associated documents as required by the PSA, on the applicants within 48 hours, they were dated before the parties signed them, the respondent acted in its capacity as a managing agent before being entitled to do so under the Agreements. 55. The applicant claims that the respondent has failed to perform the services it was obliged to perform under the Casula Agreement and the Lurnea Agreemens as the applicant's managing agent with due skill and care, being a statutory guarantee under section 60 of the Australian Consumer Law. As a result, the applicant has suffered loss and damages. 56. The service provided by the respondent is set out at its obligations under Condition 4 of Part 2 of the Agreement. 57. Section 55 of the PSA proscribes that an agent is not entitled do any Commission or expenses unless the services were performed pursuant to an agreement in writing, the agreement complies with the requirements of the regulations and a copy signed by or on behalf of the licensee was served within 48 hours after the agreement was signed by the person. 58. Prima facie, the respondent has failed to comply with the Act and regulations with the Casula Agreement, it not having been served within 48 hours. 59. The Lurnea Agreement suffers a similar fate. However with it, the parties continued in a relationship of Principal and Agent until 20 January 2020. The relationship between the parties started to deteriorate after the parties entered into the Casula Agreement in May 2019. 60. It would appear that the applicants' complaints about the management of the Lurnea Property by the respondent were not in evidence until 2019 that is 2 years after entering into it. 61. The Lurnea Agreement was entered into in 8 February 2017. The cause of action arose at the time of entering into the alleged invalid agreement. On this basis, at the time for commencing the claim was on or before 7 February 2020. The application was filed on 9 March 2020. The Tribunal finds that the application in respect of the Lurnea Agreement was filed out of time and the Tribunal has no jurisdiction to determine the claim. Application 20/12081 is dismissed. 62. The application in regard to the Casula Property has been commenced in time. 63. The failure by the respondent to comply with the requirements of section 55 of the PSA and the seeming defects associated with signing the agreement would, on the face of it, disentitle the respondent to its commissions and fees under the Agreement. 64. However, the Tribunal must consider the effect of section 55A of the PSA on the whether the respondent is relieved from disentitlement to commission and expenses. Section 55A provides that the Tribunal may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled because of failure to serve a copy of the relevant agency agreement within 48 hours or a failure to comply with the requirements of the regulations if it is satisfied that the non-compliance was occasioned by inadvertence by the licensee and the commission and expenses are fair and reasonable in all the circumstances. To make such an order the Tribunal must be satisfied that the failure is a minor failure, no loss has been suffered by the principal and to make the order it must not be unjust. These provisions relate to a licensee seeking to recover unpaid commission or expenses under section 36 of the PSA. 65. The circumstances in the present case are the commission and expenses have been paid to the respondent by the applicants. 66. The Tribunal is informed by section 55A in the applicants consumer claim. 67. The predated form of Agreement presented to the applicants for signature appears to be a consistent business practice of the respondent. On both the Lurnea Agreement in 2017 and the Casula Agreement in 2019, the execution block was predated with a type written date. The evidence is that notwithstanding the applicant signed the agreement and returned it to the respondent without objection. While to practice is not optimum, it does not alone invalidate the agreement. The circumstances when viewed objectively are that the parties intended to enter into an agreement otherwise stipulated in the Part 1 Particulars and the Part 2 Terms and Conditions. 68. The prohibition in section 55 is failure to comply disentitles the licensee to recover commission and expenses. The circumstances are that the Commission and expenses have been paid. 69. The applicants remedy lies in the Fair Trading Act. That is, whether the respondent has provided its services with due care and skill. 70. To that end, the claim by the applicants is partly in contract and partly in a claim under the statutory guarantee under the ACL. 71. Contractually, has the respondent performed its duties under clause 4 of the Terms and Conditions? It has, except for it has wrongly charged the Office Expense Fees (called in other places Administration Fee) $5.50 for each payment made to the applicants when it was only entitled to charge $5.50 per month in accordance with the Casula Agreement. The evidence also satisfies the Tribunal that it was a term of the Agreement between the applicants in the respondent that the rent would be increased from $500 per week to $520 per week from 27 November 2019. The applicants claim $300.00 for lost rent. The respondent failed to act on this acknowledged condition. Otherwise the fees had been charged in accordance with the Agreement. The applicants are entitled to be reimbursed for the overcharged Office Expense Fees from 28 May 2019 until 10 March 2020. This charge was made weekly, being 41 weeks at $5.50 = $225.50 and should have been charged monthly, 9 months at $5.50 = $49.50. The difference is $176.00 to be refunded to be paid to the applicant. The material filed by the applicants frequently repeats itself and is difficult to make a calculation. The calculation made by the Tribunal is based on a timetable for length of time they responded collected the rent of 41 weeks or nine months. 72. All other fees charged by the respondent were made in accordance with the Agreement and the claim for those items fails and is dismissed. (bold emphasis added)
8. The Tribunal then made orders for the payment of $476 to the appellants by the respondent. It made another consequential order, amended on a subsequent occasion in a manner which we will refer to below, dealing with monies that may be held by the respondent in its trust account.

The Notices of Appeal and Replies to Appeal

1. The appellants filed a Notice of Appeal in each of the matters determined by the Tribunal. Because of the conclusions we have reached it is not necessary to set out in terms the grounds identified in each of the Notices of Appeal. Without intending to criticise the appellants, who represented themselves, the Notices of Appeal were prolix and it was difficult to work out what were submissions and what were grounds of appeal.
2. Essentially, in each appeal, the appellants assert that the Tribunal erred in its reasons in not ordering that the respondent refund all of the fees and commissions received by the respondent by reason of the breach of s 55 of the PSA Act. The appellants also contended that the decision of the Tribunal that the application made in respect to the Lurnea property was made out of time was an error. Additionally, the appellants contended that the Tribunal erred in not making findings that the respondent did not provide the services it was to provide with due care and skill and that they should have been refunded all of the monies received by the respondent in commissions and fees for each of the properties.
3. The respondent contends that the decision of the Tribunal was, in all respects, correct. It denied it had rendered any services to the appellants otherwise than in accordance with its contractual obligations (but it did not challenge the findings of the Tribunal with respect to the Casula property).

The Limitation Question

1. As set out above, the Tribunal held that the cause of action for each of the claims accrued as at the date of entry into each alleged "invalid agreement". The basis of the Tribunal making this finding was not set out. The Tribunal did not identify the cause of action it was referring to. It did not seek to identify whether there was more than one cause of action.
2. The finding that the claim was brought out of time is challenged by the appellants. The identification and application of the test of when the cause of action accrued is a question of law. Leave to appeal is not, therefore, required on this ground: s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).
3. It seems most likely, by reference to the that the "allegedly invalid agreement", that the Tribunal found that because the signed agreements were not sent to the appellants within the 48 hour period prescribed by s 55 of the PSA Act, the contracts were invalid (that is void ab initio). For the reasons below, we do not accept that is correct and the Tribunal erred in so finding.
4. Another alternative is that the Tribunal held that the cause of action in respect to the failure to comply with s 55 of the PSA Act was a claim in contract. It is well established that a cause of action in contract accrues on breach of the contract rather than when damage is suffered: see for example Gibbs v Guild (1882) 9 QBD 59. It is possible, therefore, that the Tribunal was proceeding on the basis that a failure to comply with s 55 meant that there was a breach of contract on entry into it, thus holding that the cause of action in respect to each of the Lurnea and Casula Agreements accrued on the date of entry into those contracts.
5. Even assuming, however, that this is correct (as to which see below), as the Tribunal noted in [70] of the reasons, the appellants also made claims that the services performed by the respondent under the Casula agreement were not made with due care and skill and thus a claim for a breach of a statutory "guarantee". This is a separate cause of action arising under the relevant statutory provisions. When the causes of action for those claims accrue will depend on different factual matters not aligned to the date of entry into the contract(s) under which the impugned services were performed.
6. A consumer guarantee, such as those relied on by the appellants in this case, impose obligations independent of any contract. The guarantees are not terms implied into those contracts but independent statutory obligations that give rise to a statutory cause of action under the Australian Consumer Law: see Barbour v Autosports Five Dock Pty Ltd [2020] NSWCATAP 141 at [41]-[48] and the authorities there cited.
7. It is worth recalling what the Appeal Panel said in the Barbour decision about when a cause of action for breach of a consumer guarantee under the Fair Trading Act and the ACL accrues and what jurisdiction the Tribunal has to determine such claims. At [64] of the reasons, the Appeal Panel said: 64. The terms "cause of action" and "accrues" are not defined in the FT Act. However, the meaning is the same as applicable to proceedings in court. In Sacks v Hammond [2016] NSWCATAP 225 (Sacks) at [32] to [73], when considering the construction to be given to an equivalent provision to s 79L contained in s 7 of the then Consumer Claims Act 1998 (NSW) (repealed), the Tribunal said that the term "cause of action" refers to the elements necessary to give rise to the right of action (at [32]). It cited the comments of Wilson J in Do Carmo v Ford Excavations Pty Ltd (1984) 154 CLR 234 at [245]: "[T]he concept of a 'cause of action' is seen to be clear. It is simply the fact or combination of facts that give rise to a right to sue. In an action for negligence it consists of the wrongful act or omission and the consequent damage … Knowledge of the legal implications of the known facts is not an additional fact which forms part of the cause of action." 65. The statutory cause of action for damages under subs 259(3)(b) and (4) are similar to a claim for damages in respect of misleading and deceptive conduct. In this regard in Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514 (Wardley), the plurality of the High Court (Mason CJ, Dawson, Gaudron and McHugh JJ) held that a cause of action does not accrue until loss and damage arising from the contravention is sustained. At 525 their Honours said (footnotes omitted): The statutory provisions By virtue of s.82(2) of the Act, the period of limitation begins to run at the time when the cause of action under s.82(1) accrues. As loss or damage is the gist of the statutory cause of action for which s.82(1) provides, the cause of action does not accrue until actual loss or damage is sustained. The statutory cause of action arises when the plaintiff suffers loss or damage "by" contravening conduct of another person. "By" is a curious word to use. One might have expected "by means of", "by reason of", "in consequence of" or "as a result of". But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s.82(1) should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v. Stramare (E and M. H.) Pty. Ltd., except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so. In the context of the Act, the concept of loss or damage, like the concept of causation, must be applied in a wide variety of situations because the contraventions of Pts IV and V which give rise to causes of action under s.82(1) are diverse. 66. This view was accepted by the Appeal Panel in Sacks when considering an action under s 267 of the ACL. There, the Appeal Panel said at [56]: A cause of action under s 267(4) of the ACL NSW has two discrete elements: a failure to comply with a guarantee under Subdivs of Div 1 of Pt 3-2 of the ACL NSW (to which s 60 belongs) and suffering loss or damage as a result of such failure. It follows that the cause of action under s 267(4) does not accrue until loss or damage is sustained as a result of the alleged failure to comply: Wardley at 521; Arcadi v Colonial Mutual Life Assurance Society Ltd (1984) ATPR 40-473 at 45455 (Arcadi) and King v Yurisich [2006] FCAFC 136 at [55]-[61]. 67. Whilst the Appeal Panel was considering a breach of a consumer guarantee under s 60 of the ACL, the principles are equally applicable to an allegation of a breach of the statutory guarantees under ss 54 and 55 of the ACL and a claim made under s 259 of the ACL. 68. Further, in Wardley, the plurality said at 526: The measure of damages recoverable under s.82(1) can only be fully ascertained after a thorough analysis of those provisions in Pts IV and V of the Act for contravention of which the statutory cause of action may be maintained. 69. That is, the nature of the contravention and damages sought may also affect the time when the cause of action accrues. 70. When a cause of action arises requires relevant findings of fact. The Tribunal failed to make such findings because of its erroneous view of when the cause of action accrued. It also failed to have proper regard to the nature of the failure and whether the goods were rejected in the "rejection period" as prescribed by the ACL. Consequently, the failure of the Tribunal to consider the correct legal test in respect of whether or not the consumer's claim in question was brought within time constitutes an error of law.
8. Whilst the Tribunal recognised that the claim for the Casula agreement was "partly in contract and partly in a claim under the statutory guarantee under the ACL", because of the finding that the application in respect to the Lurnea agreement was made out of time, the Tribunal failed to address the claims by the appellants for breach of the statutory guarantee for services performed by the respondent pursuant to that agreement and whether or not the causes of action for those claims also accrued on entry into the managing agent agreements or on some other date. The Tribunal fell into error by failing to consider these matters.

The Lurnea Property

1. As set out above, at [61] of the reasons below, the Tribunal held that …" the cause of action arose at the time of entering into the alleged invalid agreement." As the application to the Tribunal was not filed until 9 March 2020, being more than three years after the date of entry into the agreement, the Tribunal held that it had not been commenced in time and dismissed the application.
2. In our opinion, the Tribunal erred in its finding that the claim in respect to the Lurnea property was not brought in time. That is both with respect to the claim that the respondent should refund all fees and commissions retained by it for services in connection with the managing agent agreement for the Lurnea property and for the claims by the appellants that the services provided by the respondents were not provided with due care and skill in breach of the relevant statutory guarantee.

The claim that the respondents contravened s 55 of the PSA Act

1. It is important to understand the nature of the claim(s) made by the appellants and the relief they seek in order to assess when the cause(s) of action accrued.
2. In Campbells Cash and Carry v Overmeyer Industrial Brokers [2003] NSWSC 76, Barrett J (as his Honour then was) considered the nature of a cause of action with respect to recovery of fees and commission applying under s 42AA(4) of the Property, Stock and Business Agents Act 1941 (the effective equivalent to s 55 of the PSA Act). His Honour said: 14 In the present case, the terms or content of the contract for the provision of estate agency services by the defendant cannot be viewed as the direct source of the monetary award made in the plaintiff's favour by the District Court. The cause of action upon which the plaintiff successfully sued was the statutory cause of action created by s.42AA(4) of the Property, Stock and Business Agents Act, that is, a statutory cause of action for the recovery of money received by a person identified by the statute as having no entitlement to the money. One of the elements of the denial of entitlement to the money (and therefore of the cause of action to recover) was that the agreement between payer and payee did not contain certain terms. The payer pursuing the statutory cause of action for recovery therefore sought to rely not on a claim based on a right to have a contractual promise performed, but on the circumstance that the content of the contract did not conform to a statutory norm. The sum recovered was not damages by way of vindication of a right created by and grounded in contract. It was a sum the statute said must be paid because of the existence of a state of affairs described in the statute. One element of that state of affairs was a discrepancy between the content of the parties' contract and the legislature's requirements as to its content. The relevance of the contractual terms was wholly confined to the part they played in that discrepancy.
3. In this case, the appellants' claims in respect to the respondent's failure to comply with s 55 of the PSA Act do not arise out of the terms of the contract. Rather, the claims that they be refunded the commissions and fees retained by the respondent arise from the statutory cause of action resulting from the respondent's failure to comply with the prescribed statutory norm of service of a signed copy of the agreement within 48 hours.
4. The Tribunal found that the respondent did not comply with s 55 of the PSA Act, in that it did not provide a copy of the signed and complete managing agent agreement to the appellants within 48 hours of it being signed as required by s 55(1)(c) of the PSA Act. The failure to provide the signed agreement to the appellants was not a breach of the managing agent agreement, but a breach of the requirements of s 55 of the PSA Act. The consequence of that contravention is that, unless otherwise ordered under s 55A of that Act, the respondent was not entitled to fees or commissions for services performed under the agreement.
5. The respondent had retained fees and commissions from the money it held on the appellants' behalf. The appellants claimed a refund of those amounts. The basis for the appellants to bring a such a claim arises from s 36 of the PSA Act.
6. Section 36 of the PSA Act is in the following terms: 36 Review of commission and fees (1) An action or other proceedings cannot be commenced by a licensee for the recovery of remuneration or any sum as reimbursement for expenses until the expiration of 28 days after a statement of claim has been served personally or by post on the person to be charged with the remuneration or expenses. (2) The statement of claim must be in writing, set out the amount claimed and contain details of the services performed by the licensee in respect of which the remuneration or expenses are claimed. (3) If money has been paid to or is or has been retained by a licensee (out of money received by or paid to the licensee) in respect of any transaction by or with the licensee as a licensee and has been so paid or retained as remuneration or as reimbursement for expenses in connection with the transaction, the person paying the money or the person who would be entitled to the money had the money not been retained, may require the licensee to furnish the person with an itemised account of the transaction in accordance with the regulations. (3A) A requirement by a person under subsection (3) must be in writing. (4) A person who is served with a statement of claim under this section or is provided with an itemised account of a transaction as provided by this section may apply to the Tribunal for the determination of a consumer claim within the meaning of Part 6A of the Fair Trading Act 1987 in relation to - (a) the entitlement of the licensee to the whole or any part of the amount specified in the statement of claim or the itemised account, or (b) whether the whole or any part of the amount is reasonable, or both. (5) For the purpose of the application of Part 6A of the Fair Trading Act 1987 to that person, a reference in that Part to a consumer is taken to include a reference to that person. (6) The Tribunal has jurisdiction to hear and determine any such consumer claim despite - (a) the terms or conditions of any agreement or contract entered into between the licensee and the applicant, and (b) the amount being more or less than the maximum amount (if any) of remuneration to which a licensee is entitled under this Act. (7) This section does not limit Part 6A of the Fair Trading Act 1987. (8) In this section - expenses means expenses or charges incurred in connection with services performed by a licensee in his or her capacity as a licensee. remuneration means remuneration by way of commission, fee, gain or reward for services performed by a licensee in his or her capacity as a licensee.
7. The claim brought by the appellants for a refund of the amounts retained by the respondent as described in s 36(4) then brings into consideration the statutory requirements in s 55 which set out what must occur before the licensee agent is entitled to any fees or commissions in connection with services performed under the agreement. As we have stated, the matters prescribed are not implied terms of the agreement.
8. In our opinion, a failure by the respondent to do any of the matters prescribed by s 55 does not amount to a breach of, nor void, the managing agent agreement between the appellants and the respondent. Rather, it has the statutory consequence that, subject to the application of s 55A, the respondent was not entitled to any commission or fees for services provided by it in connection with the agreement despite the contractual rights to such fees.
9. As set out in s 36, a claim by the appellants with respect to the entitlement of the respondent to any fees or commission for services provided with respect to the Lurnea property, is a consumer claim. For the Tribunal to have jurisdiction to determine the claim it must be lodged within 3 years of the cause of action accruing.
10. The cause of action for the application by the appellants for the Tribunal to determine whether the respondent is entitled to any fees or commission did not arise on the entry into the agreement. The relevant breach of s 55 of the PSA Act in this case was the failure to provide a copy of the agreement to the appellants within the 48 hour period after it was signed.
11. The appellants assert they were not provided with a signed and complete copy of the managing agent agreement for the Lurnea property until February 2020. That was in contravention of s55(1)(c) of the PSA Act. We are of the view that being a consumer claim, the loss said to have been suffered by the appellants is relevant to when their cause of action accrued. The loss would be suffered from the time that the respondent first charged the appellants a fee or commission in connection with the services provided by it under the Lurnea Agreement after the expiry of the 48 hours by which time a signed copy of the agreement was to have been served. There may have been continuing breaches after that time on each occasion that the respondent charged the appellants commission or fees in connection with the agreement.
12. The matter will be remitted to the Tribunal to determine the appellants' claims with respect to the refund of any fees or commissions and any matters raised by the respondent under s 55A in respect to the Lurnea agreement.

The claims with respect to the failure to provide the services with due care and skill under the Lurnea agreement

1. The claims by the appellants that the respondent failed to provide the services in connection with the Lurnea agreement are different to the claim arising with respect to the entitlement of the respondent to retain the fees and commissions. As the Tribunal recognised in dealing with these claims for the Casula property, they arise from the relevant consumer guarantees.
2. As the principles discussed on Barbour above indicate, the question of when the cause of action accrues for such claims depends on findings of fact, including with respect to when loss or damage may have been suffered by reason of the failure of the respondent to comply with its obligations under the relevant consumer guarantees.
3. The Tribunal erred in failing to deal with these causes of action separately with respect to the Lurnea agreement. The matter will be remitted to the Tribunal to determine these claims, as it did for the Casula agreement.
4. It should be observed, however, that during the hearing of the appeal, the appellants indicated that either they accepted they could not recover or did not press the claims as set out paragraphs 53(d),(h) and (i) of the Tribunal's reasons. Accordingly, the Tribunal will not need to deal with those claims.

The Casula Agreement

1. The Tribunal found that the claim in respect to the Casula agreement was lodged in time. Therefore, it considered the entitlement of the respondent to keep some or all of the fees despite the breach of s 55 of the PSA Act. The Tribunal considered and applied the provisions of s 55A of that Act and exercised the discretion to allow the respondent to retain remuneration it had retained.
2. In our opinion, the appellants have not pointed to any error by the Tribunal in the exercise of that discretion and we would not interfere with the Tribunal's findings in this regard.
3. The Tribunal also considered the claims by the appellants that the respondent had not performed its services in connection with the Casula agreement with due care and skill. In [70] of the reasons it determined that it had, but for limited exceptions. We see no error in the Tribunal's findings in this regard and would not allow any appeal from those orders.
4. As such, the appeal in so far as it deals with the Casula property will be dismissed (save for the repayment of the amount referred to in [48] below).

Concessions made by the Respondent

1. During the hearing, there were several concessions made by Mr Baradan for the respondent.
2. In respect to the Casula property, the respondent accepted that it should repay the $422.71 referred to in paragraph 43 of the reasons.
3. In respect to the Lurnea property, the respondent accepted that it should repay the $518.88 referred to in paragraph 53 of the reasons.
4. We will order that those amounts be repaid to the appellants.

Orders

1. The orders we make are:
2. In Appeal 20/29973 (the Lurnea property): 1. The appeal is allowed. 2. The matter is remitted to the Tribunal to be determined in accordance with these reasons noting that the appellant cannot claim the items referred to in paragraphs 53(d), (h) and (i) of the Tribunal's reasons dated 16 June 2020. 3. The amount of $518.88 referred to in paragraph 53 of the reasons of the Tribunal dated 16 June 2020 be repaid by the respondent to the appellants within 7 days of these orders.
3. In Appeal 20/29921 (the Casula property): 1. The amount of $422.71 referred to in paragraph 43 of the reasons of the Tribunal dated 16 June 2020 be repaid by the respondent to the appellants within 7 days of these orders. 2. 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: 18 December 2020