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[2026] VSC 164
General information, not legal advice.
Supreme Court of Victoria
2026-03-30
Keogh J
Original judgment source is linked above.
18 The Member noted Liu sought to recover the entire commission on the basis that the EAA was void and that there had been breaches of the EA Act, EA Regulations and ACL.
19 The Member set out the basis of VicProp's denial of the claim, adding the following:
As to the question of jurisdiction, VicProp stated it was still unclear as to the actual claim brought by Dr Liu and that it 'presumed' the claim brought by Dr Liu was a consumer and trader dispute pursuant to s182 of the ACLFTA. VicProp submitted the proceeding as brought by Dr Liu ought to be dismissed.
20 The Member was not satisfied that there was an agreement pursuant to which VicProp was to share the commission for the sale of Liu's property with Weast. The Member found that Liu was an unsatisfactory witness, whose evidence was at times inconsistent, 'leaving the impression he was prepared to alter his evidence to say what he believed suited his contention'. The Member found the evidence of VicProp's witnesses was consistent with and supported by the documentary evidence and should be accepted. The Member gave comprehensive reasons for rejecting the factual case made by the applicants.
21 The Member said, addressing the claims made by the applicants in the proceeding:
...
- I am satisfied that, pursuant to the EAA, Dr Liu, as the 'consumer', purchased, by payment of the commission, 'services' from VicProp, namely, the services relating to the sale of the property. I find that the dispute as between Dr Liu and VicProp is a consumer and trader dispute under s 184 of the ACLFTA.
- Further, the ACLFTA also confers jurisdiction on the Tribunal in respect of claims under the ACL, namely the claim made by Dr Liu based on unconscionable conduct in breach of s 20 of the ACL, and, to the extent it was maintained, the claim based on misleading and deceptive conduct in breach of s 18 of the ACL.
22 The Member said, addressing whether any of the claims made by Liu were made out:
(a) based on an implied contract or oral agreement;
(b) VicProp breached the EA Act and the Professional Conduct Regulations by failing to list Weast in the EAA as an agency that will share commission, or failing to give the required notice of commission sharing to Dr Liu and/or failing to disclose the omission of Weast's name from the EAA must be rejected; and
(c) VicProp engaged in unconscionable conduct (and/or misleading and deceptive conduct) by deliberately omitting Weast's name from the EAA or not informing him it had omitted the name for the EAA,
must fail.
...
- I find the relationship between Dr Liu and VicProp was governed by a legally enforceable contract, namely, the EAA and for the reasons discussed above, I am not satisfied the EAA was rendered void or invalid as asserted by Dr Liu.
23 The Member separately addressed and dismissed the claims made by Weast.
24 In conclusion, the Member addressed the issue of costs of the VCAT proceeding as follows:
...
- The parties should consider that pursuant to s 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act') it is usual for parties to bear their own costs of proceedings and any application for costs will need to address the matters as set out in s 109(3) of the VCAT Act and, if relevant, s 112 of the VCAT Act as the same relates to any offers made in the proceeding.
25 Application for leave to appeal has been made solely by Liu, not Weast.
26 On this appeal, Liu does not contest the factual findings made by the Member that were the basis of dismissing his claim.
27 The notice of appeal identifies five questions of law supplemented by a number of grounds of appeal. The grounds on which Liu seeks to appeal were clarified in the submissions and can be summarised as follows:
(a) the Member acted ultra vires and exceeded jurisdiction by determining the application under ss 184, 185 of the ACLFTA and not in accordance with the claims advanced by Liu;
(b) by 're-characterising' the claim made in the VCAT proceeding as a 'consumer and trader' dispute under s 182 of the ACLFTA without notice to Liu the Member engaged in procedural unfairness such as to deprive Liu of the possibility of a different outcome;
(c) the Member used the general consumer law in the ACLFTA to override the specific law relied on by Liu and in doing so failed to determine the claims made; and
(d) the Member conducted the VCAT proceeding in a way that was unfair to Liu and gives rise to an apprehension of bias.
28 The case was pleaded and argued during a three-day oral hearing entirely under the EA Act. A claim under the ACLFTA was not pleaded by Liu or argued during the hearing. While there was a passing reference to jurisdiction, at no point during the three-day hearing did the Member classify the application as an ACLFTA dispute or invite argument about how that framework might apply. In the reasons, the Member erred by effectively limiting VCAT's jurisdiction to ss 184, 185 of the ACLFTA, while ignoring the jurisdiction to determine the claims actually made by Liu. The Member's decision exceeded VCAT's jurisdiction because it was based on a legal framework that was not pleaded or argued and in respect of which there was no opportunity to lead evidence.
29 VicProp did not comply with the requirements of the EA Act and EA Regulations in relation to the conjunction sale agreement between it and Weast. The jurisdictional shift circumvented the specific commission sharing regime governed by the EA Act and thereby shielded the non-compliant VicProp from its statutory obligations. The Member's reliance on the ACLFTA framework was decisive to the outcome of the proceeding.[4]
30 The Member considered and determined the claim made by Liu that VicProp breached the EA Act and EA Regulations. That case and all claims made by Liu and Weast failed because the Member found VicProp was not obligated to share the commission on sale of the property.
31 The Member raised the ACLFTA during the hearing because there was a jurisdictional issue about whether Liu had a claim against VicProp in VCAT. This was ancillary to the Member's reasons for dismissing the claims made by Liu.
32 The Member expressly dealt with the claims made by Liu that:
(a) there was an implied contract or oral agreement to share the commission;
(b) there had been breaches by VicProp of the EA Act and EA Regulations that rendered the EAA void; and
(c) VicProp had engaged in unconscionable and/or misleading or deceptive conduct by omitting Weast's name from the EAA.
The Member concluded, based on findings of fact that are not challenged on this appeal, that those claims must fail. Critically, the Member found Liu had not established the central allegation that there was a commission sharing agreement between VicProp and Weast. Further, the Member was not satisfied the EAA was rendered void or invalid in any of the ways asserted by Liu. Those findings by the Member meant the claims made by Liu and Weast could not succeed. The Member's reasoning was not impacted by consideration of the ACLFTA. On that basis alone this ground of appeal fails.
33 Liu's submissions on this ground focussed on claims for breach of the EA Act and EA Regulations. Jurisdiction is conferred on VCAT by or under an enabling enactment.[5] The EA Act is an enabling enactment. However, the jurisdiction it confers on VCAT is limited to enquiries into the licensing of estate agents;[6] review of decisions by the relevant authority in relation to estate agent licences;[7] and determination of disputes concerning the amount of commission or outgoings charged by an estate agent referred to VCAT by the Director.[8] The application by Liu to VCAT does not engage any of the above powers. For that reason, if one accepts Liu's position on appeal that the Member should not have considered application of the ACLFTA provisions in respect to jurisdiction, a failure by the Member to determine the claims under the EA Act and EA Regulations would not have been material because VCAT did not have jurisdiction to make any award to Liu under those provisions.[9]
34 The Member was concerned, for good reason, about whether VCAT had jurisdiction to hear and determine the claims Liu made including the claim based on alleged breaches of the EA Act and EA Regulations. Because of the apparent lack of jurisdiction to determine the claims the Member appropriately and fairly raised and invited argument about the ACLFTA. The Member concluded, to Liu's advantage, that jurisdiction conferred by the ACLFTA empowered VCAT to hear and determine the claims he made.
35 The Member did not alter in any way the nature or substance of the dispute between the parties or the claims made by Liu by considering the ACLFTA provisions. The impact of ss 182, 184, 185 of the ACLFTA was to give VCAT jurisdiction to hear and determine claims made by Liu, in particular those claims advanced for breaches of the EA Act and EA Regulations. Had the factual disputes been determined in Liu's favour, the Member could have exercised jurisdiction under s 184 or s 185 of the ACLFTA to make orders for repayment of the commission charged by VicProp on sale of the property, payment of a sum of money by way of damages or restitution, or any other order the Member considered fair in relation to the EAA. The Member's conclusion that the 'consumer and trader dispute' provisions of the ACLFTA applied to the dispute between Liu and VicProp did not involve error.
37 The pleaded cause of action in the VCAT proceeding was a complaint against VicProp for breaches of the EA Act and EA Regulations. These provisions specifically govern real estate commission sharing disputes and were expressly pleaded throughout the proceeding, supported by evidence. After the conclusion of oral hearings, the Member re‑classified the case as a 'consumer and trader dispute' under s 184 of ACLFTA, denying Liu a fair opportunity to plead, argue and provide evidence about its implications.
38 The Member did not re-classify the dispute. The Member correctly put the parties on notice that the ACLFTA gave VCAT jurisdiction to determine the dispute. The identification of jurisdiction under the ACLFTA exposed VicProp not Liu.
39 The appeal must fail because the Member found there was no commission sharing arrangement or agreement between VicProp and Weast. Success on this ground would not change the outcome because the Member decided against Liu on the evidence and VCAT's findings of fact.
40 Natural justice requires that a party have a reasonable opportunity to present their case. A decision-maker should ensure that the critical issues and any adverse conclusions that are important to a party's case and that may not be obvious are identified.[10] Legal error will only be established if it is shown that a breach of procedural fairness was material.[11]
41 The trial at VCAT was heard across three days over the span of several months. Early on the first day of hearing the Member raised, fairly and to the advantage of Liu, the jurisdictional issue and applicability of ss 184, 185 of the ACLFTA. After the hearing concluded, Liu was required to file final written submissions to clearly set out the legal bases of his claim. Liu was given a fair opportunity during the course of the trial and in final submissions to call evidence and make submissions in relation to application of the ACLFTA provisions. Liu did not take that opportunity at VCAT.
42 The role the ACLFTA provisions played in the Member's decision was important but limited. The Member decided in Liu's favour that his dispute with VicProp was a 'consumer and trader dispute' as defined by s 182 of the ACLFTA. This gave the Member jurisdiction to determine the claims made by Liu. As I have already stated, those claims failed because of adverse factual findings by the Member that are not subject to appeal. Liu did not identify on this appeal any evidence that he would have led or submissions that he would have made relevant to the ACLFTA provisions that might have materially impacted the outcome at VCAT. Allowing Liu a further opportunity to lead evidence or make submissions about application of the ACLFTA provisions could not have led to a different outcome at VCAT.
43 Liu has not established any procedural unfairness in the VCAT proceeding relating to the Member's consideration of the ACLFTA provisions. Even if that conclusion was wrong, any failure to afford procedural fairness could not have been material. This ground is without merit and must fail.
44 The VCAT cause of action relied on specific provisions of the EA Act and EA Regulations that govern real estate commission share disputes. Despite these provisions being central to the pleaded and argued claim, the Member disregarded them, incorrectly applying the unpleaded general 'consumer and trader dispute' framework under the ACLFTA.[12]
45 The Member's jurisdictional shift circumvented the specific commission sharing regime in the EA Act and the EA Regulations, thereby shielding the non-compliant VicProp from its statutory obligations.
46 The existence of the conjunction sale agreement, which was admitted, meant the EA Regulations applied and should have led to a finding in favour of Liu.
47 The Member dealt with claims made by Liu under the EA Act and EA Regulations. The Member's conclusion that there was no commission sharing agreement meant those statutory provisions did not apply.
48 Reference to the conjunction agreement does not assist Liu. There is no statutory or common law definition of conjunction agreement, and the existence of such an agreement did not result in any statutory obligation being imposed on VicProp.
49 The principle established by the decision in Anthony Horden & Sons Ltd v Amalgamated Clothing & Trades Union of Australia[13] is not engaged in this case. As I have previously observed, the Member determined the claim made by Liu that VicProp breached provisions of the EA Act and EA Regulations. That claim was rejected because the Member was not satisfied there was a commission sharing agreement between VicProp and Weast.
50 For reasons already stated, the EA Act and EA Regulations did not give the Member jurisdiction to grant the relief Liu sought in the VCAT proceeding. The Member identified that the ACLFTA provisions gave VCAT power to grant relief to Liu in respect of the dispute with VicProp. There was no relevant conflict between an exercise of the jurisdiction granted to VCAT under the ACLFTA and a consideration by the Member of whether there had been a breach by VicProp of the EA Act or EA Regulations. The ACLFTA provisions simply gave the Member power to grant relief to Liu in the event a finding was made that VicProp had breached the EA Act or EA Regulations. Liu's claim failed because there was no finding of breach against VicProp.
51 Liu's reliance on the conjunction agreement between Weast and VicProp takes the matter no further. I accept VicProp's submission that the mere existence of a conjunction agreement has no statutory effect.
52 A reasonable apprehension of bias arises from the Member:
(a) frequently answering questions for VicProp's witnesses and frequently interrupting Liu's questioning;
(b) failing to give Liu due assistance as a self-represented litigant and adopting an advocate-like position for VicProp;[14]
(c) unilaterally encouraging VicProp to apply for inflated costs of $500,000 even though the hearing was prolonged by the VicProp's excessive and irrelevant arguments;
(d) allowing irrelevant attacks on the Liu's witnesses that had the effect of protracting the hearing, and refusing, despite Liu's repeated objections, to exercise the case management power to secure an expeditious and fair hearing;[15]
(e) being silent on case controlling facts and foundational evidence;
(f) giving full probative weight to VicProp's submissions but affording no weight whatsoever to the evidence called by Liu;
(g) giving reasons that directly contradict the principles in Briginshaw v Briginshaw; and
(h) failing to recognise that 'conjunction sale' is a standard real estate term involving commission sharing, and proposing a manufactured definition of 'conjunction agreement' by suggesting that 'it might be possible to work together to sell a property, without agreeing to share the commission'.
Together, these matters would lead a fair-minded observer to reasonably apprehend that the Member could not act impartially.[16]
53 What is unfair to a self-represented litigant is to be based on, inter alia, the capacities and abilities of the self-represented litigant and set within the context of the nature of the case being the issues, the evidence and the arguments. Liu did not illustrate any incapacity, and holds several qualifications in medicine, business, real estate and property. He has drafted clear and coherent pleadings. He decided not to obtain legal assistance. He should not automatically be provided with the same level of assistance as other self-represented litigants.[17]
54 The question of what is unfair, and whether it is significant, ought to be determined within the context of the case. VCAT's conduct was favourable to Liu as a self‑represented litigant in VCAT, for example, by allowing Liu to repeatedly change his pleadings and explaining the process and procedures to Liu at the start of the hearing.
55 There has been no abuse of the costs process. VCAT, in its orders, notified VicProp that if it sought costs it had to make a separate application. This procedure gives VCAT an opportunity to decide the timetabling and filing of documents and submissions before hearing any costs arguments, and further provides an opportunity for the parties to try to resolve the argument on costs in advance of a hearing. The preparation of an application was a burden on VicProp, not Liu. The argument of costs is irrelevant to the question of this appeal as the parties agreed to stay any question of costs.
56 Any prolonging of the trial was caused by Liu, who continuously interrupted throughout the hearing, sought to strike out VicProp's amended defence and amend his own pleadings a number of times. Questions put on behalf of VicProp were relevant and connected to issues in dispute.
57 Liu uses a number of extreme and non sequitur examples in arguing that the Member advocated for VicProp or was silent as described in paragraph [52] above.
58 Liu's conclusions with respect to an alleged prejudicial weighting of evidence, alleged invention of an industry definition of 'conjunction sale' and bias of the member are factually incorrect, misconceived and extreme without a proper basis.
59 Apprehended bias arises where a fair-minded lay observer might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide.[18]
60 Judges have a positive duty to give proper assistance to self-represented litigants.[19] This duty stems from the overarching principle that judges have a duty to ensure a trial is conducted fairly and in accordance with the law.[20] In Brazel v State of Victoria, Kaye JA explained the applicable principles as follows:[21]
The applicant was unrepresented, both at trial and on this application. The principles, which apply in such a case, are well-established. Fundamentally, a judge has a duty to ensure a fair trial, by giving appropriate assistance to a self-represented litigant, while at the same time maintaining both the appearance and the actuality of judicial neutrality. In particular, the judge is required to give such assistance to an unrepresented person as to enable that person to have a reasonable opportunity to advance his or her own case, and to be informed of and respond to the opposing case. The assistance, which is given by the judge, necessarily depends on the particular circumstances of the case, but may include providing information to the litigant, about the relevant legal and procedural issues involved in the case.
61 Liu relied on the decision of Bell J in Tomasevic v Travaglini[22] ('Tomasevic') in which the plaintiff appealed criminal charges found by a Magistrate to the County Court of Victoria. The appeal failed, and the plaintiff applied for judicial review of the decision on the basis that he had been treated unfairly as a self-represented litigant. Bell J found that the trial judge had failed to acknowledge the plaintiff was appearing without legal representation against a represented party, explain relevant matters of procedure and legal requirements, offer an adjournment for the plaintiff to seek representation or direct the plaintiff to matters which may be relevant to his application.[23]
62 The judicial shortcoming identified by Bell J in Tomasevic is absent in this case. From the outset of VCAT hearing, the Member acknowledged Liu was appearing self-represented and explained the relevant procedures to him, including VCAT's jurisdiction under s 184, 185 of the ACLFTA. In the course of the hearing the Member repeatedly clarified Liu's understanding of relevant matters and explained the procedure to be followed, including at the outset of each day of hearing. The three days of hearing were spread out, giving Liu the opportunity to prepare and respond to issues the Member raised. After the conclusion of the hearing Liu was given yet another opportunity to clearly state the bases of the claims he made by filing final written submissions.
63 Having carefully reviewed the transcript of the VCAT hearing, I reject Liu's submission that the Member failed to provide him assistance, was obstructive and adopted an 'advocate-like' position. I accept VicProp's submission that when considered in context the examples selected by Liu do not establish apprehended bias or unfair treatment, but rather demonstrate the Member stepping in to assist Liu as a self-represented litigant.
64 For example, Liu complained about the following intervention to a question he posed in cross-examination of Chen:
Dr Liu: All right, all right, all right. Okay, all right. You just now say you want 100 per cent at the time.
Member: No he didn't.
The question by Liu is difficult to understand, partly because it appears not to follow directly from the preceding cross-examination. However, it is clear that the Member's interruption was warranted because Chen had not given evidence along the lines of what was put to him. Liu then said:
No, no. I read 100 per cent on the - we were - in here, in the WeChat. He say that, 'Because we are working 100 per cent we are not going to accept the low commission'. You probably familiar. He said that in WeChat. Okay.
Intervention by the Member assisted Liu to clarify that the reference to '100%' came from a document in the proceeding and not from anything said in evidence by Chen.
65 While he is not legally qualified, Liu's other qualifications and experience are relevant to the assistance he required in the VCAT proceeding as a self-represented litigant. Liu has a Doctor of Medicine and a PhD from the University of Melbourne. He has studied business at the Harvard Business School, engaged in property development and has been a real estate agent since 2014. Liu did not require assistance beyond that provided to him by the Member.
66 Liu also contends that there has been an abuse of the costs process against him, as described in paragraph [52(c)] above. Liu has misinterpreted VCAT's orders as to costs. I reject Liu's submission that the Member encouraged VicProp to apply for costs. Although the orders provided the opportunity for VicProp to make an application for costs, they do not mandate an application. In the reasons, the Member indicated that under s 109 of the VCAT Act it is usual for the parties to bear their costs of a proceeding. VicProp subsequently submitted an application for costs on the basis that it considered it fair and just for VCAT to make a costs order against Liu and Weast. The costs issue was stayed by agreement pending the outcome of this appeal.
67 VicProp applied for an order for costs of and incidental to the proceeding to be taxed on a standard basis in default of an agreement. The mention of $500,000 in VicProp's submissions in support of costs relates generally to the complexity of the VCAT proceeding and more specifically to the following claim Liu made in the amended points of claim:
The Applicant seeks to hold the Respondent accountable for their unconscionable conduct. In accordance with Consumer Affairs Victoria, the maximum penalty for an individual engaged in unconscionable conduct is $500,000. The amount of the penalty will be determined by VCAT.
It has nothing to do with the amount of costs claimed by VicProp. There was no abuse of the costs process at VCAT.
68 The Member's conduct of the VCAT proceeding and treatment of Liu was fair. No apprehension of bias on the part of the Member arises.
69 Liu's application for leave to appeal has no merit. The application is dismissed.
70 I will hear from the parties as to the form of orders.
[1] Weast Corporation Pty Ltd v VicProp Manningham Res (Civil Claims) [2024] VCAT 1092.
[2] Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1) ('VCAT Act').
[4] SZEBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Kirk v Industrial Court (New South Wales) [2010] HCA 1; (2010) 239 CLR 531.
[5] VCAT Act (n 2) s 3 (definition of 'enabling enactment'); ss 42, 43.
[6] Estate Agents Act 1980 (Vic) ss 25, 28, 28A.
[8] Ibid ss 56A, 56B. 'Director' is defined to mean the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012 (Vic).
[9] Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123.
[10] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, 598 [9]; McClelland v Burning Palms Surf Life Saving Club [2002] NSWSC 470; (2002) 191 ALR 759, 796 [140] (Campbell J).
[11] Mount Atkinson Holdings Pty Ltd v Landfill Operations Pty Ltd & Ors [2020] VSC 345, 68 [223] (Garde J).
[12] Anthony Horden & Sons Ltd v Amalgamated Clothing & Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1.
[14] Tomasevic v Travaglini & Anor [2007] VSC 337 ('Tomasevic').
[16] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').
[17] Matsoukatidou v Yarra Ranges [2017] VSC 61; Tomasevic (n 14); My Foodie Box Limited v Alain Trabelsi [2025] WAIRC 172.
[20] R v Macpherson [1981] HCA 46; (1981) 147 CLR 512, 523_; Dietrich v The Queen_ [1992] HCA 57; (1992) 177 CLR 292.
[21] [2024] VSCA 327, 19 [89] (citations omitted).
Liu
VicProp Manningham Residential Pty Ltd [2026] VSC 164
(2006) 228 CLR 152
(1986) 161 CLR 141
(2010) 239 CLR 531
(2018) 264 CLR 123
(2011) 241 CLR 594
(2002) 191 ALR 759
(1932) 47 CLR 1
(2000) 205 CLR 337
(1981) 147 CLR 512
(1992) 177 CLR 292