Nasser v Sima Real Estate Pty Ltd atf Asset Realty Agents; Sima Real Estate Pty Ltd atf Asset Realty Agents v Nasser [2025] NSWCATCD 75;

1. Ms Nasser is seeking damages for what she describes in her application as breach of contract, false and misleading representation, and professional negligence. Ms Nasser states that, as a result of the agent's and Ms Akbarian's actions, she incurred costs of $11,490 but is only seeking $5,000. The reason for claiming the lower amount, according to Ms Nasser, is that it brings the claim under "the $10,000 jurisdiction." Ms Nasser did not make clear where the jurisdictional limit came from.
2. The amount of $11,490 is said to be made up as follows:

(4) Three back-to-base electricity-connected smoke detectors

1. Ms Nasser says that none of these costs were necessary, as she already had an occupational certificate for building work she undertook on the property as an owner builder. Ms Nasser also says that these costs were unnecessary and only incurred as a result of Ms Akbarian's insistence that as she obtain a new contract of sale and that a building certificate was required.
2. Ms Nasser has not produced any primary documents, such as invoices or bank statements, to establish payment of the above amounts. She says that they were all cash payments, she was provided with "cash invoices", and the providers of those services refuse to provide invoices because they were cash payments.
3. The agent denies liability for all of the amounts claimed by Ms Nasser and also denies engaging in the alleged misleading or deceptive conduct, breach of contract and negligence.
4. The agent claims $4,098 in advertising or marketing expenses from Ms Nasser. According to the invoice dated 25 November 2024 issued by the agent to Ms Nasser, this amount is made up as follows:

(1) Premiere Package Upper North Shore | Houses & Units $3,069.00 (inclusive of $279 for GST)

(2) Signboard 6x4 NiteLite Solar $710.00 (inclusive of $64.55 for GST)

(3) 4 pages A4 Property Brochures $319.00 (inclusive of $29 for GST)

1. It is to be noted that item D of the items schedule in the version of the agency agreement propounded by the agent sets out a list of expenses that the vendor is required to reimburse the agent. The advertising and signboard expenses for that item are $3,069 and $710, respectively, as listed in the invoice. The amount for the brochures is $322, slightly more than the amount invoiced and claimed.
2. Ms. Nasser disputes the agent's claim for $4098. Under the version of the agreement she relies upon, no monies are said to be owing by her to the agent. She relies on the handwritten note on printed page 3 of that document, under item D, expense, which reads:

1. Neither Ms Nasser nor Ms Akbarian gave oral evidence. Neither did they provide evidence in the form of statements or affidavits. This case is being decided on the documents presented by the parties as evidence.
2. The parties' evidence consists of several documents.
3. The agent's evidence comprises a 65-page bundle of documents bearing the file number 2024/00466648, accompanied by a table of contents with the headings "Annexure List", "Orders Sought", and "Response to Claims."
4. At the hearing, Ms Akbarian showed me the original version of the agreement upon which the agent relies to support its claim. The original was returned to Ms Akbarian as it was identical to the copy in the agent's bundle of documents identified as Annexure A.
5. Ms Nasser's evidence consists of a version of the agreement, which she says is the correct version, and a chronology that was sent to the Tribunal on the same day as the hearing. A copy was provided to Ms Akbarian. The chronology appears to be an attempt by Ms Nasser to articulate the history of this matter from her perspective. I give it no weight in the context of deciding this matter, as it is neither a contemporaneous document, a witness statement, nor an affidavit tested by cross-examination.
6. Ms Nasser also filed two bundles of documents with the Tribunal on 17 January 2025 . They contained text messages between Ms Nasser and Ms Akbarian, online information about the property, emails from Ms Akbarian to prospective purchasers of the property, and correspondence from the New South Wales Department of Fair Trading (Fair Trading) to Ms Nasser, as well as an online advertisement for the property taken from the website glenncurran.com.au. This is the website of an agent who apparently took over the marketing the agent.
7. The Fair Trading documents relate to a complaint Ms Nasser made against the agent for alleged underquoting. There is no evidence as to the outcome of that complaint. Ms Nasser says the complaint has been "escalated" within Fair Trading, but what that means and the status of the complaint remain unclear.

1. The Tribunal's jurisdiction to determine these claims is to be found in Fair Trading Act 1987 (FT Act) and the Property and Stock Agents Act 2002 (PSA Act)
2. Section 36 of the PSA Act sets out the steps a licensee under the Act must take in order to recover remuneration or any sum as reimbursement for expenses. In summary, these are the relevant provisions:

(1) A licensee cannot commence proceedings for reimbursement until the expiration of 28 days after a statement of claim has been served on the person to be charged with the expenses (subsection (1));

(2) a statement of claim must be in writing, setting out the amount claimed and details of the services performed by the licensee in respect of which the expenses are claimed (subsection (2));

(3) a person served with the statement of claim may apply to the Tribunal for the determination of a consumer claim within the meaning of part 6A of the FT Act (subsection (4));

(4) the reference to "person" in subsection 6 is taken to be a reference to a "consumer" for the purposes of part 6A of the FT Act (subsection (5)); and

(5) the Tribunal has jurisdiction to hear and determine the consumer claim despite the terms and conditions of any agreement or contract entered into between the licensee and the applicant (subsection 6(a)).

1. Part 6A of the FT Act sets out the Tribunal's jurisdiction in relation to consumer claims. Section 79E defines "consumer claim". Relevantly, the section provides that a "consumer claim" means a claim by a consumer for four specific remedies arising from the supply of goods or services by a supplier to a consumer including, the payment of a specified sum of money, and relief from payment of a specified sum of money (subsection (1) (a) and (c).
2. I am satisfied that the Tribunal has jurisdiction to determine both claims. The agent's claim falls under the PSA Act and the Ms Nasser's claim, for both the recovery of money said to have been paid to the agent and for relief from payment of the agent's claim, is by virtue of the FT Act and also the PSA Act, a consumer claim for the purposes of the FT Act.

1. in my view these are the questions to be determined in these proceedings:

(1) Which version of the agreement is the true and correct agreement?

(2) Subject to the answer to the preceding question, is Ms Nasser liable to pay the agent for marketing expenses of $4098?

(3) Has the agent engaged in misleading or deceptive conduct, breach of contract (the agreement) or negligence, as alleged by Ms Nasser?

(4) Subject to the answer to the preceding question, is the agent liable to pay Ms Nasser the $5000 claimed?

1. The first question for determination is which of the two versions of the agreement is the true and correct version.
2. The two versions of the agreement are not identical.
3. The two photocopies are visually different. The text of the version propounded by Ms Nasser is compartmentalised by a series of lines that do not appear in the version propounded by the agent. The reason is most probably due to the effect of photocopying or they are counterparts. Neither party commented on this difference, and I do not consider it to be relevant in answering this question.
4. The version of the agreement put into evidence by Ms Nasser's evidence consists of 10 pages, while the agent version consists of eight pages. The two additional pages in Ms Nasser's version are duplicates of "page 2 of 8" and "page 5 of 8" from the original document that have been amended to record a three-month extension of the agreement from 23 August to 23 November 2024. No issue has been raised by either party regarding these additional pages, and therefore, I do not consider them relevant in answering the question.
5. I also note that there is some handwriting at the top of Ms Nasser's version of the agreement, which reads "Original contract and renewal signage to 2 last pages." This commentary on the document is also irrelevant.
6. Handwritten in item I on page 3 of the agent's version of the agreement are Mrs Nasser's bank account details. That information has not been included in Ms Nasser's version of the agreement.
7. Ms Nasser's and Ms Akbarian's signatures in both documents do not appear to be identical, nor do the handwritten dates on page 5, nor the handwritten parts circled in items B and C on page 2. There is also an additional signature on page 2 and again on page 5 of the agent's version of the agreement, which is not on Ms Nasser's version. The signature is not identified, but it may be that of Ms Kyle.
8. These differences would suggest that the agreement may have been signed in counterpart and at different times. The fact that Ms Akbarian emailed a copy of the agreement to Ms Nasser on 16 May 2024 tends to support that that is what most probably occurred. In my view, this has no bearing on the determination of the question. I see nothing objectionable in counterparts of the agreement having been signed by the parties.
9. The main difference between the two documents appears on pages numbered 3 and 4 of each document.
10. At the foot of each of the eight pages of the agent's version of the agreement is an identification code which reads "AUNSWREPS001 v5.3." A page number then appears, starting with "Page 1 of 8" and continuing through to the last page, which reads "AUNSWREPS001 v5.3 (Page 8 of 8)." Page 3 lists the specific marketing expenses for which Ms Nasser was required to reimburse the agent. I am satisfied that "v5.3" refers to a particular version of the agreement.
11. In Ms Nasser's version of the agreement, all pages except pages 3 and 4 display at the foot of the page the identification code AUNSWREPS001 v5.3, while pages 3 and 4 display 'AUNSWREPS001 v5.2 (Page 3 of 8)" and 'AUNSWREPS001 v5.2 (Page 4 of 8)" at the foot of the page. It is page 3 of this document that differs from the agent's version, as the marketing expense details have not been typed in. Instead, the specific expenses for 'Real Estate' and 'Domain' are handwritten as 'nil'.
12. I am comfortably satisfied that the reference to "v5.2" on each of those pages means these two pages are from a different and most probably an earlier version of the agreement.
13. Ms Nasser denies replacing pages 3 and 4 in her version of the agreement. Ms Nasser claims that it is Ms Kyle's handwriting on page 3 of the agreement and that Ms Kyle must have interleaved pages 3 and 4 into the agent's version of the agreement.
14. I reject Ms Nasser's explanation.
15. There is no evidence to corroborate the assertion that it is Ms Kyle's handwriting that appears on page 3. Furthermore, and without further evidence, it seems improbable that the agent would undertake a sales and marketing campaign without being remunerated for marketing expenses. Nothing in the other documents that both parties have presented as evidence suggests that was the agreement. The point is reinforced by the fact that after the agent issued its invoice for marketing expenses, there are no contemporaneous documents recording Ms Nasser's objections to paying those expenses on the basis that her contractual arrangement with the agent did not require her to pay any of the expenses.
16. If the agent had agreed not to charge Ms Nasser for marketing expenses, then I would have expected item D, expenses, to be deleted with the stroke of a pen or left blank rather than going to the trouble of replacing pages. That they would have done so using pages from version AUNSWREPS001 v5.2 seems a highly improbable explanation and one that I am unable to accept.
17. The only plausible explanation for pages 3 and 4 version AUNSWREPS001 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 expenses. Her excuse that she would not have access to any such documents to do that is not one that I accept. It was not in dispute that before engaging Ms Akbarian's company, Ms Nasser had retained other agents to market it. It is highly probable that one or more of those agents required her to sign a version of the agreement.
18. Accordingly, I find that the version of the agency agreement propounded by the agent is the true and correct agreement between the parties.
19. The next question to be answered is whether Ms Nasser is liable to pay the agent for the marketing expenses of $4098.
20. For the agent to bring a claim for reimbursement of the marketing expenses, it is required to comply with the requirements of section 36(1) of the PSA Act, which includes being a licensee under the Act. A "licensee" means the holder of a licence under the Act (see section 3).
21. No issue has been taken by Ms Nasser as to whether the agent is a licensee. The agent's licence number is on the agreement. I am comfortably satisfied that the agent is a licensee for the purposes of the Act.
22. The PSA Act prohibits licensees from commencing proceedings until the expiration of 28 days after service of a statement of claim on the person charged with the expenses (section 36(1)).
23. The statement of claim is required to be in writing and set out the amount claimed and details of the services performed by the licensee in respect of the expenses claimed (section 36(2)).
24. The agent issued the invoice for marketing expenses to Ms Nasser on 25 November 2024. The invoice is in writing and addressed to Ms Nasser. It identifies the property and then sets out, by date, description, and amount, the expenses claimed. I find that the invoice is a statement of claim as required by section 36.
25. On the same date it was issued, the invoice was emailed by Ms Akbarian to Ms Nasser. I find that the invoice was served on Ms Nasser. The agent's application was commenced with the Tribunal on 8 January 2025, which, as required by section 36(1), was more than 28 days after service of the statement of claim (i.e., the invoice).
26. Having found that it complied with section 36, the next issue is whether or not the agent is entitled to the full amount claimed.
27. In respect of each of the amounts claimed, the agent has produced supporting invoices. The Printforce invoice for $743, inclusive of GST, is specifically for the signboard in respect of the property. The LindfieldPrint invoice lists several charges, but identifies explicitly a charge of $290 plus GST for brochures in respect of the property. The Premier Package invoice lists several charges; however, it is a poor-quality reproduction, and it is not possible to identify the specific charge for advertising the property. However, based on the fact that the agent included the amount in the invoice to Ms Nasser, and Ms Nasser took no objection to the amount claimed, having only denied contractual liability for it, I accept and find that the charge was incurred. I am therefore comfortably satisfied that all of these expenses claimed by the agent have been incurred.
28. The GST is not recoverable on liquidated damages. Accordingly, the amount for which Ms Nasser is found liable to pay the agent is reduced to $3725.45, which is the total amount claimed in the invoice less the GST component specified in the invoice.
29. The next question is whether the agent engaged in misleading or deceptive conduct, breach of contract, and negligence as alleged by Ms Nasser.
30. In her application filed with the Tribunal, Ms Nasser makes these assertions about the agent's conduct:

(1) The agent has underquoted the value of the property to make a quick sale for the agent's benefit and commission.

(2) The agent has engaged in misleading or deceptive conduct by claiming costs or expenses that were not part of the agreement.

(3) The agent, by Ms Akbarian, falsely claimed that she could obtain a sale price of $6,500,000 for the property.

(4) The agent, by Ms Akbarian, falsely claimed it had buyers looking for properties of between $8,000,000 and $15,000,000.

(5) These false claims and misrepresentations deceived Ms Nasser, causing her to sign the agreement.

(6) The agent, by Ms Akbarian, wanted Ms Nasser to sell the property for under $5,000,000, and, despite Ms Nasser's refusal to agree, the agent did commence to advertise the property for less than $5,000,000.

1. I reject each of these assertions.
2. Underquoting a property for sale by an agent essentially involves that agent advertising the property for an amount that is lower than what could reasonably be expected as the eventual sale price. There is no evidence to support the claim that the agent underquoted the property's value. The agent states in the written response to Ms Nasser's claim that at no time was the property quoted below the estimated selling price of $5,500,000 to $6,000,000. The evidence corroborates the response. The agent's evidence includes more than 30 emails to prospective purchasers of the property, in each of which the agent expressly states that the price guide for the property is $5,500,000.
3. For the reasons given, I have found that the agreement propounded by the agent is the true and correct agreement and, as a consequence, Ms Nasser is liable for the agent's marketing expenses. There was no misleading or deceptive conduct on the part of the agent in claiming those expenses.
4. Both versions of the agreement, which bear Ms Nasser's signature, make plain that the estimated selling price was $5,500,000 to $6,000,000. The allegation that the agent, by Ms Akbarian falsely claimed that they could obtain a sale price of $6,500,000 is a bald assertion by Ms Nasser without any evidentiary support. I can find no evidence in the documents provided by Ms Nasser and the agent to corroborate the allegation. It is therefore rejected
5. The allegation that the agent, by Ms Akbarian, claimed to have had buyers looking for properties between $8,000,000 and $15,000,000 is rejected for the same reason. It is an unsubstantiated allegation devoid of any corroborative evidence having been adduced by Ms Nasser.
6. I reject the allegation that Ms Nasser was deceived into signing the agreement by false, misleading or deceptive conduct on the part of Ms Akbarian or anyone else on behalf of the agent. Neither party has adduced any evidence of what was said in the lead-up to the signing of the agreement. The onus is on Ms Nasser to prove this allegation. In my view, she has failed to do so.
7. I would add that, based on my observations of Ms Nasser at the hearing, she appears to be a very strong-willed person, capable of expressing her views and someone who does not strike me as easily influenced or misled.
8. Ms Nasser's allegation that the agent commenced to advertise a property for less than $5,000,000 is also rejected.
9. The basis for rejecting the allegation is to be found in the text messages between Ms Nasser and Ms Akbarian that are contained in Ms Nasser's evidence. As a result of the online marketing of the property by the agent, information was being collected and utilised by the websites, so that Google searches for the property produced the property's sales history and valuation range. For example, RPData provided valuation estimates in the range of $4.48 million (low), $4.93 million (mid), and $5.37 million (high). There is no evidence to show that the agent had any control over how this information was used. The agent's evidence reveals Ms Akbarian tried to explain to Ms Nasser what was happening and that she was not advertising the property for less than $5,000,000. Still, Ms Nasser chose to reject the explanation.
10. I am comfortably satisfied on the evidence presented that at no time did the agent advertise the property for under $5,000,000.
11. Even if I had decided that the agent had engaged in some or all of the conduct alleged by Ms Nasser and had established some or all of the causes of action raised, I 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.
12. Ms Nasser admits that the payments were made in cash and claims she cannot obtain any written proof from the service providers to verify that these expenses were actually incurred. She also states they have refused to give her copies of invoices. Frankly, I am sceptical that cash payments were made to the local council, building surveyor, and private certifier, and even more doubtful that they would refuse to provide her with any documentary evidence, as Ms Nasser claims.
13. I would also add these observations for completeness.
14. Ms Nasser has not provided any explanation for or particulars of the breach of contract allegation. If the allegation is that the agent's conduct, as asserted by Ms Nasser, amounts to a breach of the agreement, I reject it for the reasons given.
15. It is questionable whether the Tribunal has jurisdiction to deal with a claim for professional negligence in the context of this matter, but to the extent that it might be relevant, I would add that, in my view, there is no evidence whatsoever to support the allegation.
16. Ms Nasser alleged that Ms Akbarian forced her to obtain the building certificate and other documents so that a contract for sale could be issued for the property and to allow the agent to commence the marketing of it. Ms Nasser claims that all of this was unnecessary. It is not enough to say that this was unnecessary, because the renovation work done on the property was undertaken by Ms Nasser as an owner-builder. Evidence is required. In addition to Ms Nasser's failure to establish that the expenses were incurred, she also failed to adduce any evidence to prove to the requisite standard why any of the documentation that Ms Akbarian advised her to obtain was unnecessary.
17. Ms Nasser alleged that Ms Akbarian's engaged in fraudulent conduct. This allegation was made in correspondence submitted to the Tribunal and again at the hearing. To be clear, there is no evidence of any fraudulent conduct whatsoever on the part of Ms Akbarian. The allegations of fraud are entirely without any basis.
18. Accordingly, for the reasons given, Ms Nasser's claim is unsuccessful and rejected.

(1) In application 202500008614, Margaret Nasser is to pay the sum of $3725.45 to Sima Real Estate Pty Ltd trading as Asset Realty Agents within 14 days.

(2) Application 202400466648 is 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.