Nasser v Sima Real Estate Pty Limited

(1) The Agent's application 2025/00008614 (Agent's proceedings); and

(2) The appellant's application 2024/00466648 (Appellant's proceedings).

1. The Agent claimed a money order against the appellant in the sum of $4098 for advertising and marketing expenses.
2. The appellant claimed a money order against the Agent for expenses totalling $11,490 but capped to $5000 for:

(1) Local council building certificate $270;

(2) Private certifier cost $2000;

(3) Private surveyor cost $1500;

(4) Three electricity connected smoke detectors $1770;

(5) Copy papers for folder $150; and

(6) House cleaning for 29 weeks at $200 per clean $5800.

1. Both applications were heard together by the Tribunal on 15 April 2025.
2. The Decision was published for both applications in the same set of orders with reasons as follows:

(1) The Tribunal ordered the appellant to pay $3724.45 to the Agent in the Agent's proceedings;

(2) The Tribunal dismissed the Appellant's proceedings.

1. The appellant has filed this appeal in relation to the Decision in both sets of proceedings.
2. The callover of the appeal was on 18 July 2025 and directions were made for the parties to submit documents and submissions for the appeal. Submissions and materials have been filed by both parties on the appeal.
3. The hearing of the appeal took place on 30 October 2025. Both parties attended the hearing. The Agent was represented by Ms Akvarian.

1. The appellant has filed the following documents for the Appeal:

(1) Notice of Appeal;

(2) Submissions lodged on 9 July 2025;

(3) Submissions lodged on 14 July 2025;

(4) Submissions lodged on 1 August 2025 including a transcript of the hearing;

(5) Submissions lodged on 4 August 2025;

(6) Submissions lodged on 27 August 2025;

(7) Submissions lodged on 29 August 2025;

(8) Submissions lodged on 15 October 2025;

1. A version of the Agency Agreement was lodged by the appellant in the Appeals Registry just prior to the hearing commencing on 30 October 2025 with a handwritten notation "ORIGINAL Contract and Renewal Signed 2 Last Pages" (Appellant's Version of the Agency Agreement). We granted leave to the appellant to file and rely upon this document which she claimed was the correct version of the Appellant's Version of the Agency Agreement.

(1) The Agent has filed the following documents:

(2) Reply to the Appeal filed 30 July 2025;

(3) Submissions lodged on 26 September 2025 which includes a bundle identified as Annexure A (Annexure A).

1. The Agent relies on the version of the Agency Agreement which is an 8 page document dated 16 May 2024 bearing the signatures of both parties and a notation in its footnote of each page "AUNSWEAPS001 v5.3". A copy of this document is at pages 9-16 of Annexure A (Agent's Version of the Agency Agreement).
2. We have considered the materials provided and the oral submissions made at the hearing.

Scope of internal appeals from the Consumer and Commercial Division

1. An appeal does not provide an unsuccessful party with an opportunity to re-argue its case (Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [10]). The Tribunal's Guideline 1, Internal Appeals (which can be found on the Tribunal's website) states: "an appeal is not an opportunity to have a second go at a hearing".
2. An appeal may be made as of right on any question of law, or with leave of the Appeal Panel on any other grounds (s 80(2)(b) of the NCAT Act).
3. The meaning of a "question of law" was discussed in detail by the Appeal Panel in Unique Commercial Group Pty Ltd v Cusumano [2024] NSWCATAP 204 at [25]- [40]. A question of law does not depend on the facts found and the question of law must be, self-evidently, a question of law and not depend on the answer. A question of law is distinct from a mixed question of fact and law, for which leave to appeal is required.
4. Examples of questions of law include - a lack of jurisdiction for the Tribunal to make an order, whether the wrong issue was identified by the Tribunal, whether the Tribunal asked itself the wrong question, whether a wrong principle of law was applied, or whether the Tribunal failed to afford procedural fairness to a party.
5. If there is no error on a question of law, an appellant may also seek leave to appeal a decision of the Consumer and Commercial Division, pursuant to the provisions of cl 12(1) of Sch 4 of the NCAT Act. The Appeal Panel may grant leave to appeal under cl 12(1) of Sch 4 if it is satisfied the appellant may have suffered a substantial miscarriage of justice because of any of the following:

(1) the decision of the Tribunal under appeal was not fair and equitable, or

(2) the decision of the Tribunal under appeal was against the weight of evidence, or

(3) significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with).

1. The Appeal Panel considered the meaning of "a substantial miscarriage of justice" for the purposes of cl 12 of Sch 4 of the NCAT Act in Collins v Urban [2014] NSWCATAP 17 at [76]-]78]:

76 ... [I]t should be accepted that a substantial miscarriage of justice may have been suffered because of any of the circumstances referred to in cl 12(1)(a), (b) or (c) where there was 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.

77 As to the particular grounds in cl 12(1)(a) and (b), without seeking to be exhaustive in any way, the authorities establish that:

(1) If there has been a denial of procedural fairness the decision under appeal can be said to have been "not fair and equitable" - Hutchings v CTTT [2008] NSWSC 717 at [35], Atkinson v Crowley [2011] NSWCA 194 at [12].

(2) The decision under appeal can be said to be "against the weight of evidence" (which is an expression also used to describe a ground upon which a jury verdict can be set aside) where the evidence in its totality preponderates so strongly against the conclusion found by the tribunal at first instance that it can be said that the conclusion was not one that a reasonable tribunal member could reach - Calin v The Greater Union Organisation Pty Ltd [1991] HCA 23; (1991) 173 CLR 33 at 41-42, Mainteck Services Pty Limited v Stein Heurtey SA [2013] NSWSC 266 at [153].

78 If in either of those circumstances the appellant may have been deprived of a "significant possibility" or a "chance which was fairly open" that a different and more favourable result would have been achieved, then the Appeal Panel may be satisfied that the appellant may have suffered a substantial miscarriage of justice because the decision was not fair and equitable or because the decision was against the weight of the evidence.'

1. Even if an appellant satisfies the requirements of cl 12(1) of Sch 4 of the NCAT Act, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b) of the NCAT Act.
2. In Collins v Urban, the Appeal Panel set out the principles governing discretion as to when it is appropriate to grant leave to appeal at [84]:

"(1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45];

(2) Ordinarily it is appropriate to grant leave to appeal, only in matters that involve:

(a) Issues of principle; or

(b) questions of public importance or matters of administration or policy which might have general application; or

(c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or 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; or

(d) a factual error that was unreasonably arrived at and clearly mistaken; or

(e) the Tribunal having gone about the fact-finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. It may be difficult for self-represented appellants to clearly express their grounds of appeal and therefore it might be appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the Tribunal's decision at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal, subject to procedural fairness: Cominos v Di Rico [2016] NSWCATAP 5 at [13]. We have followed this principle in this case.
2. The Appeal Panel may determine an appeal in accordance with its powers set out in s 81 of the NCAT Act:

Determination of internal appeals

(1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following--

(a) the appeal to be allowed or dismissed,

(b) the decision under appeal to be confirmed, affirmed or varied,

(c) the decision under appeal to be quashed or set aside,

(d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel.

1. In the Notice of Appeal, the appellant seeks orders from the Appeal Panel:

(1) To set aside the order in the Agent's proceedings that the appellant pay the Agent the sum of $3725.45;

(2) To set aside the dismissal of the Appellant's proceedings and make an order that the Agent pays the appellant the sum of $5000.00.

1. The grounds for appeal or otherwise the reasons why the appellant challenges the Decision, as set out in the Notice of Appeal, may be summarised as follows:

(1) The Tribunal had no jurisdiction to determine the Agent's claim for unpaid monies against the appellant as a consumer;

(2) The Decision was not fair and equitable;

(3) The Decision was against the weight of evidence;

(4) The Senior Member ignored the facts and the letters from the Office of Fair Trading;

(5) The Senior Member ignored deceptive and false statements made by the Agent;

(6) The Agent made its claim against the appellant to gain financial benefits by deception;

(7) The Agent caused the appellant to incur unnecessary costs, which the Appeal Panel should order the Agent to repay;

(8) The Senior Member ignored emails from the lawyers refuting the Agent's false statements during the hearing;

(9) The Senior Member was misled into believing that the appellant had swapped parts of the Agency Agreement;

(10) The Agent relied on a "fictitious contract" by changing 2 pages in the Agency Agreement, which the appellant was not given a copy of;

(11) The Senior Member ignored the original Agency Agreement (the Appeal Panel notes that the appellant conceded at the hearing that she did not have a copy of it at the hearing before the Tribunal);

(12) The correct version of Agency Agreement was the copy of the document filed by the appellant on 30 October 2025 (defined above as the Appellant's Version of the Agency Agreement).

1. At the hearing of the Appeal, the appellant also sought leave to appeal on the basis that there was significant new evidence which was not reasonably available at the time of the hearing, being evidence of the invoices and the council application fee (which she was required to pay), and which were now relied on as evidence to support her claim against the Agent for a money of $5000.

1. We summarise the respondent's response to the appeal as follows:

(1) The respondent supports the Decision;

(2) The Senior Member gave the appellant ample opportunity to present her evidence in support of her claim;

(3) The Senior Member conducted a comprehensive review of the evidence and documents filed by both parties and made the Decision supported by detailed reasons clearly outlining the findings and basis for the Decision;

(4) The appellant has not established any error in law or fact;

(5) The respondent denies that it changed the Agency Agreement as asserted by the appellant and relies upon the version at pages 9-16 of Annexure A (defined above as the Agent's Version of the Agency Agreement).

Consideration of the Agent's Claim against the appellant

1. The appellant contends that the Tribunal did not have jurisdiction to make a money order in the Agent's proceedings against the appellant in favour of Agent, because the claim was not a "consumer claim" as defined by s 79E of the Fair Trading Act 1987 (NSW). The appellant submits that the Agent was the supplier of the services not the consumer, and only the consumer can invoke the Tribunal's jurisdiction to determine a consumer claim under Part 6A of the Fair Trading Act.
2. This ground identifies a question of law and we will deal with this ground first.
3. In support of this ground, the appellant also refers to orders dated 16 December 2024 in Tribunal proceedings 2024/438211 in which the Agent was the applicant against the appellant (as respondent) and sought a money order for expenses incurred by the Agent on behalf of the appellant in relation to the Agency Agreement. In those proceedings it was ordered that the proceedings be dismissed because the Tribunal had no jurisdiction to hear and determine the Agent's claim for unpaid monies against the appellant in the position of property vendor. Although not explicitly stated, we assume that the claim was dismissed for lack of jurisdiction as it was not a consumer claim (having been filed by the Agent as supplier of the services) and therefore the Tribunal had no jurisdiction to determine it under Part 6A of the Fair Trading Act.
4. At [28] to [31] of the Decision the Tribunal held that it had jurisdiction to determine the Agent's claims (for $4098) against the appellant under s 36 of the Property Stock and Agents Act 2002 (NSW) (PSA Act).
5. This was not a correct application of s 36 of the PSA Act_._ The Tribunal's jurisdiction under s 36(3) of the PSA Act is only in relation to a consumer claim being filed by the consumer against an agent in respect of services supplied, to dispute an agent's claim for fees which have been the subject of a statement of claim. Section 36(3) of the NCAT Act provides that such a claim can then determined as a "consumer claim" within the meaning of Part 6A of the Fair Trading Act.
6. Section 36 of the PSA Act does not give the Tribunal jurisdiction to determine a money claim brought by the agent against the consumer in relation to services provided by the agent to the consumer.
7. The Tribunal did not have jurisdiction under the Fair Trading Act (or the PSA Act) to make an order in favour of the Agent. This was an error on a question of law.
8. The Appeal Panel must also consider whether the error was material to the Decision. Materiality is established if the error deprived the appellant of a realistic possibility of a different outcome on the review: (see the Appeal Panel's decision in YHY v YHZ [2024] NSWCATAP 117 at [31] applying the principle from the High Court authority in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 98 ALJR 610; [2024] HCA 12).
9. In the Appellant's proceedings, one of her claims was that she was not liable to the Agent for the costs in the amount of $4098, being the same monies claimed by the Agent in the Agent's proceedings. The appellant had sought the following remedy in her application:

To dismiss asset agency false claim for costs of $4098.00 refer to original contract agreement no costs to be charged as stated and signed agreement is between myself and (EK) and only they added the other 2 signatures later without me being present there and unaware of the other.

(name of agent initialised to EK)

1. Under s 79N of the Fair Trading Act, a consumer may seek the remedy of a declaration that the consumer is not liable to pay an amount to a supplier. Section79O of the Fair Trading Act provides that when determining such a claim, if the determination is in favour of the respondent supplier, the Tribunal may make an order in favour of respondent including a money order against the applicant consumer.
2. The dismissal of the Appellant's proceedings included a dismissal of her claim for a declaration that she was not liable to the Agent for the costs claimed by the Agent. Accordingly, as this was a determination in favour of the Agent as respondent in the Appellant's proceedings, it was open to the Tribunal to make the same money order in the Appellant's proceedings under s 79O of the Fair Trading Act.
3. So although there was an error on a question of law by making Order 1 in the Agent's proceedings, we do not consider that if the error had not been made, that there was a realistic possibility of a different outcome for the appellant in relation to this amount as it was open to the Tribunal to make the same order in the Agent's proceedings. In determining the appeal we therefore consider it appropriate to allow the appeal in part, in order to regularise the Decision according to the reasons, namely, that Order 1 as made in the Agent's proceedings is made in the Appellant's proceedings. The Appeal Panel has this power under s 81 of the NCAT Act (referred to above).
4. The appellant also seeks leave to appeal the money order of $3725.45, so we will deal with the merits of that argument below under the leave to appeal section.
5. On the materials and submissions before us, we are unable to identify that the appellant has raised any other error on a question of law in the Notice of Appeal. The other matters raised are grounds for which leave is required under cl12(1) Sch 4 of the NCAT Act and will be considered below.

1. The appellant seeks leave to appeal the Order to pay $3725.45, on the basis that the Decision was not "fair and equitable" and "against the weight of evidence". In the Notice of Appeal the appellant does not clearly set out which aspects of her complaint are in relation to the "not fair and equitable" basis and which aspects are in relation to "against the weight of evidence" basis.
2. The Tribunal has noted that neither the appellant nor the person representing the Agent, gave oral evidence at the hearing or provided evidence in the form of statements or affidavits: [21] and the case was decided on the documents presented by the parties as evidence. This was not challenged by either party on appeal. Accordingly, the burden of the appellant on this appeal is to establish that the Decision was against the weight of evidence on the documents that were before the Tribunal.
3. A significant issue is the question of which was the correct version of the Agency Agreement. There were various slightly different versions of the Appellant's Version of the Agency Agreement in the materials. We considered it appropriate to grant leave for the appellant to rely on that version of the Agency Agreement which was lodged on 30 October 2025, as the appellant was most adamant that this was the correct version of the Appellant's Version of the Agency Agreement.
4. The appellant contends that on evidence before the Tribunal, the Senior Member ought to have preferred the appellant's contention that the correct version of the Agency Agreement was the Appellant's Version of the Agency Agreement and not the Agent's Version of the Agency Agreement and that the Tribunal should have accepted the appellant's evidence of emails from the solicitor that the Agent's evidence and invoices were fabricated to gain financial benefits.
5. There is a significant difference between the two versions of the Agency Agreement relied on by each of the parties. The difference is significant because the appellant would be liable to pay the Agent's expenses as set out in paragraph D on page 3/8 of the Agent's Version of the Agency Agreement but the Appellant's Version of the Agency Agreement at clause D had "nil" expenses and therefore the appellant would not be liable for any of the Agent's expenses under the Appellant's Version of the Agency Agreement.
6. The Agent's Version of the Agency Agreement at pages 9-16 of Annexure A was before the Senior Member. This version, was the 8 page document bearing a notation in its footnote of each page " AUNSWEAPS001 v5.3".
7. "Clause D Expenses" of the Agent's Version of the Agency Agreement at page 11 of the Annexure and page 3/8 of the Agency Agreement lists the following expenses:

Advertising $3069

Signboard $710

Brochures $322

Photos and Floorplan (vendor to provide)($480) $0.00

Auctioneer $770

These expenses total $4871.

1. Page 3/8 of the Agent's Version of the Agency Agreement also has the Appellant's bank account details inserted in hand-writing.
2. Page 5/8 of the Agent's Version of the Agency Agreement is signed by both parties and dated 16 May 2024.
3. Each and every page of the Agent's Version of the Agency Agreement has in its footer the same text "AUNSWEAPS001 v5.3" with the relevant page number after it, for example, (Page 3 of 8).
4. The appellant contends that this is not the correct version of the Agency Agreement. We repeatedly asked the appellant to identify from the materials before us, which document was a true copy of what she claimed was the correct version of the Agency Agreement before the Tribunal. The appellant was unable to identify a true copy for some time. Finally, the appellant confirmed her position that she sought to rely on the version of the Agency Agreement which was not in the papers filed before the hearing date of the Appeal, but which she lodged on 30 October 2025 as part of her claim that there was significant new evidence.
5. As noted above, we gave the appellant leave to file this document which she contended was the correct version. In handwriting at the top of the front page it states "Original Contract and Renewed Signed 2 Last Pages" (the Appellant's Version of the Agency Agreement).
6. The Appellant's Version of the Agency Agreement also has AUNSWEAPS001 v5.3 in the footer of each page, except for page 3/8 which has in its footer "AUNSWEAPS001 v5.2".
7. Relevantly, page 3/8 on the Appellant's Version of the Agency Agreement states under "Clause D Expenses" that the appellant will reimburse the following expenses to the Agent:

1. Page 3/8 of Appellant's Version of the Agency Agreement also does not contain the bank account details for the appellant.
2. As set out above, the appellant contends that the Decision was also not fair and equitable and against the weight of evidence because the Tribunal ignored certain evidence of the appellant and was persuaded by the false evidence of the Agent.
3. The appellant's complaint is that the Senior Member preferred the Agent's evidence to the appellant's evidence and ignored the appellant's evidence and submissions in determining which of the two versions of the Agency Agreement was the true and correct version.
4. The Senior Member has set out in detail his reasoning for finding that the Agent's Version of the Agency Agreement was the correct version - [33] to [50]. That reasoning includes the following findings:

(1) The Agency Agreement was signed as counterparts at different times: [40];

(2) That the reference to "v5.2" on each of the 2 pages in the Appellant's Version of the Agency Agreement was from a different and probably an earlier version of the agreement;

(3) There was no evidence to corroborate the appellant's assertion that Ms Kyle interleaved pages 3 and 4 into the Agent's version of the Agency Agreement;

(4) It was improbable that the agent would undertake a sales and marketing campaign without being numerated for marketing expenses: [47];

(5) After the Agent issued the invoice for the marketing expenses, there was no contemporaneous document recording the appellant's objection to paying those expenses on the basis that her contractual arrangements with the agent did not require her to: [47]; and

(6) If the Agent had agreed not to charge the appellant the marketing expenses, Item D would probably have been deleted; and

(7) it was unlikely and improbable that the Agent would have gone to the trouble of replacing pages from a different version being AUNSWREPS001 v5.2.

1. The Senior Member after setting out his reasons at [33] to [45] rejected the appellant's submission explaining the differences in the Agency Agreement at [46]. Put simply, the Senior Member did not accept the appellant's evidence but was satisfied for the reasons at [47] to [49] that the Agent's version was the correct version of the Agency Agreement. That finding is made at [50].
2. At [49] the Senior Member also explained that in his view it was the appellant that had substituted the 2 pages:

The only plausible explanation for pages 3 and 4 version AUNSWREPS0001 v5.2 being in the agreement propounded by Ms Nasser is that after receiving the agent's invoice for marketing expenses, she deliberately substituted them for the corresponding pages in version AUNSWREPS001 v5.3 to create a document which provided that she was not liable for any marketing excuses. Her excuse that she would not have access to any such documents to do that is not one that I accept.....

1. An appeal is not an opportunity for the appellant to re-argue the case. For the reasons which are clearly articulated by the Senior Member, we consider it was open on the documentary evidence before him to find that the Agent's Version of the Agency Agreement that was the correct version.
2. The Senior Member's finding that the Agent had incurred the expenses totalling $3725.45 is reasoned at [56] to [60]. This was less than the full amount claimed of $4098 as the Senior Member deducted the GST component.
3. For the reasons set out in the Decision, the Senior Member was satisfied that the expenses had been incurred by the Agent on behalf of the appellant, that there were invoices before him to prove the claims and that they were expenses which were consistent with the expenses set out in Item D of the Agent's Version of the Agency Agreement. We are satisfied this finding on the quantum of the money order was open to the Tribunal.
4. Applying the principle in Collins v Urban at [77] the appellant has not satisfied us on the balance of probabilities that the evidence before the Tribunal preponderated so strongly against the conclusion found by the Tribunal that it could be said that the conclusion that the appellant was liable to pay the Agent $3725.45 was not one that a reasonable tribunal member could reach.
5. Subject to Order 1 being substituted as an order in the Appellant's proceedings, the Appeal Panel refuses leave to appeal Order 1 for the appellant to pay the Agent $3725.45.
6. Order 2 of the Decision which is a dismissal of the Appellant's proceedings is also appealed. In effect the Tribunal dismissed the appellant's claim for the Agent to pay her $5000 for unnecessary costs.
7. At [13] the Tribunal notes:

Ms Nasser is seeking damages for what she describes in her application as breach of contract, false and misleading representation, and professional negligence.

1. The Tribunal notes that the appellant claims that due to that conduct the appellant has incurred costs of $11,490 which she capped at $5000.
2. The Tribunal rejected the appellant's claim that the agent engaged in misleading or deceptive conduct, engaged in conduct which deceived the appellant, and made any false representations or otherwise breached the contract or was negligent at [61] to [73]. The Tribunal found that there was no evidence to support the claim that the agent was underquoting the sale price, as the property was always quoted at between $5.5 and $6 million. The Senior Member refers to the evidence from the Agent of more than 30 emails to prospective purchasers to prove this.
3. The Tribunal also found that there was no evidence that the agent had any control over valuations on 3rd party platforms such as RPData.
4. There was no evidence from the appellant to establish that she was induced to sign the agreement as a result of misleading or deceptive conduct of the agent or false representation. In fact the member made it very clear at [79] that there was no evidence of any fraudulent conduct on the part of the agent and the claims were entirely without basis.
5. In our view, it was open to the Senior Member to find that he was not satisfied that the Agent had engaged in any misleading and deceptive conduct or conduct that was likely to mislead or deceive or made any representations that were false.
6. We are therefore not satisfied that any error has been demonstrated in respect of the Tribunal's finding that it was not satisfied that the Agent engaged in misleading or deceptive conduct or conduct that was likely to mislead or deceive or made any false representations, or that the appellant may have suffered a substantial miscarriage of justice for a reason set out in clause 12(1)(a) or (b) of Sch 4_._
7. Leave to appeal in respect of the appellant's claim for $5000.00 is therefore refused.
8. For completeness, we will however also deal with the appellant's challenge to the Tribunal's findings as to the quantum of the appellant's claim.
9. At [73] the Senior Member finds that "Even if [he] had decided that the agent had engaged in some or all of the conduct alleged by Ms Nasser and [Ms Nasser] had established some or all of the cause of action raised, [he] would nevertheless reject her claim on the basis that apart from mere assertions that they were incurred, no evidence has been adduced to corroborate that she incurred the various expenses that have been claimed".
10. The reasons record at [74] that the appellant admitted that all payments had been made in cash and that she could not find written proof from the service providers to verify that the expenses were actually incurred and had said that they had refused to give her copies of the invoices.
11. The Senior Member found that he doubted that payments in cash would be made to entities such as the local council, building surveyor and private certifier and considered that it was even more doubtful that the Agent would refuse to provide her with documentary evidence of these payments. In summary, the Senior Member did not accept the appellant's evidence that these amounts had been paid. On the evidence before him, which were the documents (and not oral evidence or any affidavit or witness statement as noted at [21]) the Appeal Panel is satisfied that it was open to the Senior Member not to be satisfied that the expenses had been incurred and therefore that Agent was liable to pay these expenses to the appellant.
12. Although we have already determined that it was open to the Senior Member to dismiss the Appellant's proceedings because he was not satisfied that the Agent had engaged in any of the conduct alleged, for completeness we will also consider the appellant's application for leave to appeal on the basis that there is significant new documentary evidence which was not reasonably available at the time of the hearing (being the invoice and council application fee) which she says establish that the appellant paid unnecessary costs at the request of the Agent.
13. The appellant seeks leave to appeal Order 2 on the basis of significant new evidence to establish that these payments were made by her. In order to be granted leave to appeal on this basis, having regard to cl 12(1)(c) Sch of the NCAT Act, the appellant must satisfy us that this evidence is significant and was not reasonably available at the time of the hearing.
14. The new evidence sought to be relied on by the appellant to establish the costs claimed, is considered below:

(1) The invoice for the smoke detectors at page 57 of the appellant's materials lodged on 14 July 2025 is not legible and does not satisfy us that it is a document that can establish the making of any third party payment.

(2) The invoice for Auswide Surveying for $990 dated 18 April 2024 at page 58 and a second invoice of $990 at page 60 of the appellant's materials lodged on 14 July 2025 predate the engagement of the Agent on about 16 May 2024 and as such could not be a cost caused by the Agent. Nor do we consider the appellant's explanation for having not provided evidence of payments at the hearing, being that the surveyor sought to be paid in cash, to be satisfactory and we are not satisfied that it was evidence that was not reasonably available to the appellant at the hearing.

(3) The Officeworks tax invoices for stationery expenses dated 8 July 2025. Given the appeal was filed on 14 July 2025, these would appear to be costs incidental to the Appeal and as such are not part of this determination and are therefore not significant new evidence in respect of the matters determined by the Tribunal at first instance.

(4) The other copying costs of $150 as set out in [14(5)] of the Decision are costs incidental to the Tribunal proceedings and not part of this determination.

(5) The email dated 5 April 2024 from the appellant to the Agent in relation to the consent to request a building certificate predates the hearing which was on 7 July 2025. and does not does actually identify or establish a payment having been made. It is therefore not significant new evidence that was not reasonably available to the appellant at the time of the hearing.

1. The appellant's material (at page 61 of her bundle filed 9 July 2025) also included Receipt/Invoice from Ku-ring-ai Council dated 9 April 2024 for $250.00 for an ePaymemt TransactionID:88250. Mindful that the document is dated 9 April 2024 and the matter was heard on 15 April 2025 and it does not identify to whom it is issued or what it is for, to the extent the appellant seeks to rely on it, we are not satisfied that it is significant new evidence that was not reasonably available to the appellant.
2. The Appeal Panel is not satisfied on the material before it that there has been an error on a question of law or that leave to appeal should be granted for any reason set out in cl 12(1) of Sch 4.

1. Due to the Tribunal's error in respect of the Agent's proceedings, the appeal is allowed to the limited extent to set aside the order in the Agent's proceedings and to make the same money order in the Appellant's proceedings. The Appeal Panel has power to makes such an order s 81(1)(d) of the NCAT Act.
2. The Appeal Panel makes the following orders:

(1) Leave is granted to the appellant to rely on the Sales Inspection and Exclusive Auction Agency Agreement bearing the handwritten notation "Original Contract and Renewed Signed 2 Last pages" lodged with the Appeal Registry on 30 October 2025.

(2) The appeal is allowed in part.

(3) Orders 1 and 2 dated 7 July 2025 are set aside and Orders (4), (5) and (6) below are substituted for Orders 1 and 2 dated 7 July 2025.

(4) Application 2025/00008614 is dismissed.

(5) In application 2024/00466648, Margaret Nasser is to pay Sima Real Estate Pty Limited trading as Asset Realty Agents, the sum of $3724.45 within 14 days of the date of these orders.

(6) The balance of proceedings 2024/00466648 is dismissed.

(7) Leave to appeal is otherwise refused and 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.