Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood v Gong Yu

Notice of Appeal 19The Notice of Appeal was lodged on 10 June 2014. The appellant sought a stay of the Tribunal's order. The application for a stay was refused on 24 June 2014 by Principal Member M Harrowell. Directions made on that date are referred to below. The outcome sought by the appellant is the remittal of the matter to the Tribunal for rehearing or the determination of the appeal on the papers. 20In support of the application for leave to appeal, the appellant claims that the Tribunal's decision was not fair and equitable, that it was against the weight of the evidence and that new evidence is now available that was not reasonably available at the time of the hearing. The appellant did not object to the appeal being dealt with on the papers. 21Attached to the Notice of Appeal are a number of documents, including: Details of the grounds of appeal and the basis for seeking leave to appeal; A copy of a blank Sales Inspection and Auction Sales Agreement, showing ruled lines adjacent to the "Total" heading under the clause which deals with marketing and other charges; Copy of a text message dated 29 July 2013; A tax invoice dated 9 October 2013 in the sum of $500.00 in relation to auctioneer's fees and charges, showing that the account was paid; An undated Advertising Statement of Account in the sum of $2405.00, which includes auctioneer's charges of $500.00; A text message dated 12 September, apparently from the respondent, advising that she no longer wanted to sell her house and requesting that it be rented and another text message sent later on the same date, also apparently from the respondent, stating "Plz pay all marketing expenses from the rent about 1500. dollars"; An invoice from Alpha Appliance Repair Co Pty Ltd in the sum of $148.50; An invoice from Sydney Water showing water usage charges in the sum of $151.76; A tenant trust ledger report showing payment of $151.76 by the tenant and A trust ledger report showing that $151.76 was credited to the respondent. Appellant's case 22The appellant disputes all three aspects of the Tribunal's decision; that is, the decision in relation to the marketing and auctioneer's expenses, the decision in relation to the tenancy related expenses and the water usage charges. Decision not fair and equitable 23The appellant claims that the Tribunal misunderstood or misinterpreted evidence. In particular, the appellant claims that: The ruled lines on the Auction Agreement referred to in the Tribunal's decision were not placed subsequent to the execution of the agreement. Rather, they are present on the agreement template (a copy of which was attached to the Notice of Appeal and is referred to further below). Prior to signing the agreement, the parties discussed the sales commission structure, which led to the originally proposed 1.4% inclusive of GST being disregarded and 1.54% and 2% inclusive of GST (depending on sale price) being agreed on. An agreement which varied in its entirety from the originally proposed quotation given by text message was created. The written agreement is a true representation of the terms and conditions. Prior to signing the Auction Agreement, the respondent was advised that the auctioneer's fees are separate and in addition to marketing charges and they are due and payable irrespective of whether the property is withdrawn, sold prior to auction, or sold at or after the auction. Both parties agreed that the respondent would settle the auctioneer's fees upon receiving the tax invoice irrespective of whether auction went ahead. On or about 12 September 2014, the respondent sent a text message to the appellant withdrawing the property from sale and instructing the respondent to deduct $1500.00 from the rent collection in settlement of all marketing expenses, which disregarded the originally agreed $1800.00 indicated on the Auction Agreement. On or about 15 October 2013, the respondent was informed by an employee of the appellant of a dishwasher leak at the respondent's property. The appellant engaged the services of a repairer who provided the appellant with a tax invoice for charges totalling $148.50. The Tribunal's decision was harsh and unreasonable as the appellant acted promptly and in the respondent's and the tenant's best interest. On or about 9 January 2014, Sydney Water supplied a tax invoice setting out water usage charges in the sum of $151.76. Under the tenancy agreement, payment of these charges was the responsibility of the tenant. The tenant paid the charges and the amount in question was accounted for to the respondent on 31 January 2014, as noted in the trust account ledger. Decision against the weight of the evidence 24Under this heading, the appellant states that the evidence the appellant presented to the Tribunal were the tax invoices from the dishwasher repairer and the Sydney Water, the tenant's ledger report and the landlord's trust account ledger. The appellant states that the respondent's evidence at the hearing included "consent instructions" to pay the amount of $1500.00 from rent collected by the appellant, the "Advertising Statement of Account" (that is, the appellant's invoice to the respondent in the sum of $2405.00) and the trust account ledger which shows a credit of $151.76 on 31 January 2014. 25The appellant specifically refers to the dishwasher repair charge of $148.50 and claims that this charge was incurred in the respondent's best interest and under her instruction to obtain a quotation and that it is unreasonable for the appellant to have to cover the charge. Evidence now available that was not reasonably available at the time of the hearing 26Under this heading, the appellant refers to the blank Auction Agreement template, which according to the the appellant demonstrates that the ruled lines are part of the template and were in existence prior to the execution of the Auction Agreement.

Reply to Appeal 27The Reply to Appeal was filed on 1 July 2014. In it, the respondent indicates her support for the Tribunal orders, stating: She entered into the Auction Agreement under the belief that $1800.00 covered marketing and auction fees. The Auction Agreement did not change from the quote in the text message as both were for the same amount ($1800.00), although the appellant failed to list auction fees under the relevant clause in the written agreement. The only conversation that took place was about the increase in the sales commission. The conversation the appellant claims took place in relation to marketing campaign expenditure did not occur. The appellant has provided no evidence about this alleged agreement and no signed agreement referring to any further changes. There was no conversation in which the appellant said that auction fees would be separate and the sales agreement does not reflect this significant change in price. She only became aware of additional auction fees when the appellant sent her the final invoice in 2014. Prior to sending the text message on 12 September, she phoned the appellant's agent to let him know she didn't want to sell and she wanted him to rent out her house. She didn't know how much she would owe. The appellant's agent said it would be about $1500.00. After this phone call she sent the two text messages in response to what was said during the telephone conversation. She agrees with the Tribunal's findings regarding the additional costs of $94.00, $148.50 and $151.70. 28The respondent stated that she did not object to the appeal being dealt with on the papers.

Directions and documents 29On 25 June 2014, the Appeal Panel, constituted by Principal Member Harrowell, refused the appellant's application for a stay of the Tribunal's orders and made directions for the preparation of the appeal. 30The directions required the appellant to file and serve all evidence in support of the application for leave to appeal and the appeal, together with a copy of the audio recording of the hearing, a transcript of relevant evidence and submissions, by 14 July 2014. The respondent was directed to file and serve evidence and submissions in response to the appellant's material by 28 July 2014 and the appellant was directed to file and serve any further material in reply by 4 August 2014. 31The only material filed by the appellant in response to these directions was a copy of the same material that had been filed in the proceedings before the Tribunal. The respondent did not file any material other than the Reply to Appeal.

Hearing of application for leave to appeal 32Section 50 of the Act governs when an oral hearing is required in the Tribunal. It relevantly provides: (1) A hearing is required for proceedings in the Tribunal except: (a) in proceedings for the granting of leave for an external or internal appeal, ... (c) if the Tribunal makes an order under this section dispensing with a hearing, ... (3) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. 33The Appeal Panel is therefore not required to conduct an oral hearing in relation to an application for leave to appeal and may rely upon submissions and documents that are before the Tribunal. The Appeal Panel may also decide to dispense with a hearing and determine an appeal on the papers. 34The Tribunal, whether at first instance or sitting as the Appeal Panel, must under s 38(5)(c) of the Act "take such measures as are reasonably practicable ... to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings". 35It will generally only be appropriate for the Tribunal, including the Appeal Panel, to proceed to hear and determine matters of this type on the papers if it is satisfied that the parties have had a reasonable opportunity to be heard or otherwise have their submissions considered. In this matter, the parties consented to the appeal being dealt with on the papers. They have also had the opportunity to put their cases before the Appeal Panel in the Notice of Appeal and Reply to Appeal as well as through submissions and documents that they were directed to file. The Appeal Panel is satisfied that its obligation under s 38(5)(c) of the Act has been met. 36In these circumstances, it is appropriate for the Appeal Panel to determine the application for leave to appeal without a hearing and to dispense with a hearing in respect of the appeal itself. Determining the appeal on the papers is also appropriate in a matter such as this one because it saves the parties the cost of attending a hearing and neither the subject matter nor the amount in dispute justify the incurring of any additional delay or expense.

Leave to Appeal 37In an application for leave to appeal from a decision of the Consumer and Commercial Division, under cl 12(1) of Schedule 4 of the Act the Appeal Panel may only exercise its discretion to grant leave to appeal if the Panel is satisfied that: the appellant may have suffered a substantial miscarriage of justice because: (a) the decision of the Tribunal under appeal was not fair and equitable, or (b) the decision of the Tribunal under appeal was against the weight of evidence, or (c) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 38An appellant may have suffered a substantial miscarriage of justice because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there is a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved for the appellant had the relevant circumstance in para (a) or (b) not occurred or if the fresh evidence under para (c) had been before the Tribunal at first instance. (See Collins v Urban [2014] NSWCATAP 17 at [68] to [76].)

Consideration of Application for Leave to Appeal Cl 12(1)(a) - Whether decision not fair and equitable 39In relation to the marketing and auctioneer's expenses, the appellant essentially claims that the Tribunal's decision is not fair and equitable because the respondent was aware that the $1800.00 quote was only an estimate of marketing expenses and that it did not include the auctioneer's fees. The appellant also asserts that the respondent knew that the auctioneer's fees were payable whether or not the auction occurred. In relation to this issue, the respondent denies the assertion in the Notice of Appeal that there was any conversation in respect of these issues. 40As noted above, the appellant did not attend the hearing and has provided no explanation for not having done so. The documents the appellant filed with the Tribunal did not include witness statements, statutory declarations, affidavits or other evidence concerning discussions with the respondent about the marketing and auctioneer's fees. In such circumstances, the Appeal Panel is satisfied that the Tribunal was entitled to take the documents submitted by the parties at face value and to place weight on the respondent's oral evidence at the hearing. 41The appellant had the opportunity to put evidence of pre-contractual conversations with the respondent to the Tribunal, in the form of witness statements and/or in oral evidence at the hearing. It did not do so. There is no unfairness or lack of equity in the Tribunal not taking into account evidence that was not before it. 42The Appeal Panel is not satisfied that the finding that there was a fixed price contract was not fair and equitable. The Tribunal was entitled to reach the conclusion that the contract was for a fixed price based on the evidence before it. This is so regardless of the failure to list the auctioneer's fee as one of the expenses under the marketing and other charges section of the Auction Agreement. 43Furthermore, the Tribunal was entitled to find that the auctioneer's fees should be deducted from the expenses claimed by the appellant from the respondent. This is because the appellant did not put any evidence before the Tribunal suggesting that the respondent knew, at the time she signed the Auction Agreement, that the auctioneer's fees would be payable whether or not the auction went ahead. 44In relation to the tenancy related expenses, the appellant claims that it is not fair and equitable that the respondent should be responsible for these expenses, as the appellant acted promptly in undertaking repairs and doing so was in the best interests of the respondent and her tenant. 45Regardless of whether the appellant acted promptly and whether or not it was in the best interests of the respondent and/or the tenant, clause 17 the Managing Agency Agreement between the parties, which was in the bundle of documents the appellant filed with the Tribunal and with the Appeal Panel, states that the agent must contact the owner at all times in respect of expenditure for maintenance or repair of the premises. 46Although the appellant claims that the dishwasher repair was done subsequent to the respondent's instructions to obtain a quotation, the appellant did not provide any evidence to the Tribunal confirming that there had been such instructions. Even if the respondent did instruct the appellant to obtain a quotation, the appellant did not provide evidence demonstrating the respondent had authorised the expenditure of $148.50 for dishwasher repairs. Nor did the appellant provide any evidence to the Tribunal demonstrating that the respondent authorised the expenditure of $94.00 in respect of a lawn mowing and a new toilet seat 47In these circumstances, the Appeal Panel is not satisfied that the Tribunal's decision that the appellant rather than the respondent should bear these costs is not fair and equitable. This is particularly so given the unexplained failure of the appellant to appear at the Tribunal hearing and the failure of the respondent to file any witness statements prior to the Tribunal hearing. 48In relation to the water usage charges paid by the respondent's tenant, the appellant claims that the decision in relation to these charges is not fair and equitable because, contrary to the Tribunal's finding, the relevant sum was in fact credited to the respondent. The Appeal Panel is not satisfied that the Tribunal's decision was not fair and equitable for this reason. However, the Appeal Panel is satisfied that the Tribunal's decision is against the weight of the evidence in respect of this issue. This is dealt with under the next heading below. 49The Appeal Panel finds that cl 12(1)(a) is not satisfied. Cl 12(1)(b) - Whether decision against the weight of the evidence 50 The appellant raises three issues under this heading: The claim that the tenancy related charges are said to have been incurred in the respondent's best interests; The text message sent by the respondent on 12 September, asking that expenses of about $1500.00 be paid from rent collected and The crediting of the payment of the water usage charges to the respondent 51The first of these issues has been dealt in relation to whether the Tribunal's decision was not fair and equitable and does not need to be further discussed. 52In relation to the second issue, it is true that the respondent's text message was before the Tribunal. However, so was the appellant's agent's text message quoting $1800.00 for expenses including auctioneer's fee, the Auction Agreement itself and the invoice showing the auctioneer's fee as $500.00. When those documents are taken into account and the failure of the appellant to put any evidence before the Tribunal demonstrating that the respondent knew that the auctioneer's fee was payable whether or not the auction took place is considered, the Appeal Panel is not satisfied that the Tribunal's decision was against the weight of the evidence. 53In relation to the third issue, the trust ledger report at page 70 of the documents the appellant provided to the Tribunal shows that $151.76 was credited to the respondent on 31 January 2014 in respect of water usage paid by the tenant. In the Reply to Appeal, the respondent stated that she agreed with the Tribunal's finding in respect of the water usage charges. She did not comment on the evidence of the trust ledger, even though it was specifically raised in the Notice of Appeal. The Appeal Panel is satisfied that the respondent had a reasonable opportunity to provide evidence and make submissions on this point. 54Based on the appellant's submissions and the trust ledger, the Appeal Panel finds that the sum of $151.76 was credited to the respondent on 31 January 2014. The Appeal finds that the Tribunal's decision in relation to this issue was against the weight of the evidence and that cl 12(1)(b) is satisfied in respect of the water usage charges only. Cl 12(1)(c) - Whether new evidence is now available that was reasonably available at the time of the hearing 55In respect of this issue, the appellants refer to the blank Auction Agreement template attached to the Notice of Appeal. This document has two black lines next to "Total" under the Marketing and Other Expenses heading. This is said to be evidence that the total of $1800.00 was not altered subsequent to the execution of the Auction Agreement. 56The Appeal Panel accepts that the total of $1800.00 was not altered as suggested by the respondent's evidence at the hearing. However, the Appeal Panel is not satisfied that the Tribunal's decision that the parties had a fixed price agreement for payment of $1800.00 for marketing and auctioneer's expenses is dependent on whether the amount of $1800.00 was crossed out on a version of the signed Auction Agreement. Given that the appellant's case is that $1800.00 was in fact not deleted after the respondent signed the Auction Agreement, the blank template document does not assist the appellant's case. The Appeal Panel is not satisfied that cl 12(1)(c) is satisfied. Conclusion 57The Appeal Panel concludes that the only basis on the appellant has established of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved is under cl 12(1)(b) and only in respect of the Tribunal's decision that water usage charges collected from the respondent's tenant were not credited to the respondent. The Appeal Panel finds that the appellant has satisfied the requirements of cl 12(1) of Schedule 4 of the Act in respect of this issue only.

Whether leave to appeal should be granted 58Granting of leave to appeal under s 80(2) of the Act is discretionary. This means that even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1), the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal. 59The Appeal Panel comprehensively considered the principles that govern the granting of leave to appeal under s 80(2)(b) in Collins v Urban [supra]. One of the bases for exercising the discretion is where there is "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand" [at 84]. 60As noted above, the appeal is in respect of three distinct issues: the marketing and auctioneer's expenses, the tenancy-related expenses and the crediting of water usage charges. In respect of the water usage charges, the finding that the charges had not been credited to the respondent was central to that aspect of the Tribunal's decision. The Appeal Panel is satisfied that this was an error, as the trust ledger report included in the documents the appellant provided to the Tribunal clearly shows that $151.76 was credited to the respondent in respect of water usage charges on 31 January 2014. 61The Appeal Panel does not consider the Tribunal's finding in relation to the water usage charges was arrived at unreasonably, particularly given that the appellant was not present at the hearing to draw the Tribunal's attention to the trust ledger. However, the Appeal Panel is satisfied that allowing a finding to stand that that the appellant is liable to pay the respondent a sum that has already been credited to her would be unjust.

Conclusion and orders 62The Appeal Panel is therefore satisfied that the discretion to grant leave to appeal should be exercised in favour of the appellant and that the appeal should be allowed in respect of the water usage charges only. The effect of the orders set out below is that the sum the appellant has credited to the respondent in respect of water usage charges ($151.76) is deducted from the sum the Tribunal ordered the appellant to pay. 63The Appeal Panel makes the following orders: (5)Leave to appeal is granted. (6)The appeal is determined on the papers. (7)The appeal is allowed in respect of water usage charges only and is otherwise dismissed. (8)The Tribunal's decision dated 22 May 2014 is set aside and the following order is substituted for the Tribunal's order: Hoddinott Properties Pty Ltd t/as LJ Hooker Chatswood is to pay Gong Yu the sum of $1347.50 on or before 13 October 2014. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 30 September 2014