Sepentulevski v Free Spirit Pty Ltd

REASONS FOR DECISION

1. Bill and Nada Sepentulevski (the appellants) appeal against the decision of the Consumer and Commercial Division of the Tribunal (the Tribunal) made on 27 February 2017 ordering Mr Sepentulevski to pay Free Spirit Pty Ltd (Free Spirit) the sum of $23,842.50 on or before 27 March 2017.
2. The proceedings before the Tribunal had commenced in the Local Court by the filing by Free Spirit of a Statement of Claim, claiming payment of commission under the Property, Stock and Business Agents Act 2002(NSW) (the PSBA Act) on the sale of property owned by the appellants. The amount claimed was $23,595.00, together with legal and filing fees. On 27 October 2016, the matter was transferred to the Tribunal on the application of the appellants.
3. In support of the application for transfer, the appellants provided an affidavit sworn by Mr Sepentulevski dated 30 September 2016 in which he disputed liability to pay the commission. That affidavit included at par [9] a copy of handwritten notes said to have been made by him and the agent, Mr Brett Ramsey, during discussions with the agent and the eventual purchaser.
4. The Statement of Claim pleaded that: 1. Free Spirit, trading as Ramsey Property, entered into an agreement with the appellants on 1 December 2015 for the provision of services for the sale of the appellants' property at Sylvania; 2. pursuant to the "Sales Inspection Report and Exclusive Agency Agreement and Continuing Agency" document (the Agreement) the appellants granted to Free Spirit exclusive selling rights from 1 December 2015 to 1 April 2016, and non-exclusive selling rights from 2 April 2016 until the property was sold or the Agreement terminated; 3. the Agreement specified a fee of 1.65% of the sale price, payable on completion of the sale, if the appellants entered into a contract for the sale of the property with a purchaser who was effectively introduced to the appellants or the property by Free Spirit; 4. on 6 May 2016, the appellants entered into a contract for sale of the property to Adel Gendy for a sale price of $1,430,000; 5. Adel Gendy was effectively introduced to the appellants and the property by Free Spirit during the continuing agency period; 6. on or about 9 May 2016, Free Spirit sent a statement of claim claiming payment of the fee; and 7. on 1 July 2016, the sale of the property was completed.
5. In the Notice of Grounds of Defence, the appellants admitted the entry into the Agreement and its terms, and that Adel Gendy was effectively introduced to them by Free Spirit during the continuing agency period. The appellants disputed that they entered into a contract for the sale of the property to Adel Gendy, stating that they entered into a contract for the sale of the property to Adel Gendy and Shoier Gendy, and that the sale price was $1,445,000. They disputed that Free Spirit had served a statement of claim under s 36 of the PSBA Act, stating that if served it was invalid because it was served before the date on which Free Spirit was entitled under par 3(vi) of the Agreement to make a demand for payment of the fee. By way of defence, the appellants pleaded: 1. The Agreement contained an estimated selling price range between $1,500.00-$1,600,00.00; 2. Free Spirit did not, during the exclusive selling period or the non-exclusive selling period, notify the appellants of a revised estimated selling price or amend the Agreement to the estimated selling price range, as required by s 72A of the PSBA Act; 3. During the course of the negotiations Free Spirit's employee or agent, Brett Ramsey, had represented that if the property was sold to Adel Gendy for a price of $1,445,000.000 the amount the appellants would receive clear of all commission amounts, costs and expenses would be $1,445,000.00; 4. That representation was false and misleading, on the basis that Brett Ramsey retracted the representation stating that from the amount of $1,445,000.00 commission would be payable; 5. The appellants were entitled to terminate the agency agreement, and by reason of their exercise of that right, Free Spirit was disentitled to claim a commission or expenses.
6. After transfer of the application to the Tribunal, directions were made on 25 November 2016 for the exchange of evidence, and both parties were granted leave to be legally represented. The matter was heard on 27 February 2017.

The Decision under Appeal

1. The Tribunal Member's reasons for decision note that Free Spirit relied on statements by Brett Ramsey dated 22 December 2016 and 19 February 2017; a statement by Adel Gendy dated 20 December 2016, and written and oral arguments of Free Spirit's legal representative. The appellants relied on an affidavits sworn by Mr Sepentulevski dated 30 September 2016, and oral arguments of their legal representative.
2. The Member considered the document dated 9 May 2016, which was a letter from the agent with an invoice for $23,595.00. The letter noted that the sales price was $1,430,000, with settlement on 14 June, and concluded "Please find our invoice for the payment of agreed sales commission in full on the date of settlement for this matter". The Member found, applying Remuneration Data Base Pty Ltd v Pauline Goodyer Real Estate Pty Ltd & Anor [2007] NSWSC 59, that the document satisfied s 36 of the PSBA Act, and was a demand for payment of commission when it became due, that is, on settlement of the sale.
3. The Member considered the contention based on s 72A of the PSBA Act, noting that it appeared to be an allegation that the estimated selling price was not a reasonable estimate and should have been revised. The Member found that the appellants had not provided any evidence on that issue, and accordingly they had not made out any claim on that basis.
4. The Member rejected the claim that Free Spirit's agent had made a false and misleading representation, finding that the agent did not say that the appellants would get $1,445,000.00 after commission was paid. As the issue of the handwritten notes included at par [9] of Mr Sepentulevski's affidavit assumed significance on the appeal, we quote the Member's reasons: On balance I accept the evidence of the Applicant that the agent did not say that the Respondent would get $1,445,0000 in his pocket after the commission was paid. The evidence of the agent is clear at paragraph 9 of the agent's statement that he was writing down figures during the course of his discussion with the Respondent and included in those figures was a reference to agent's commission. There was nothing in his handwritten note or the handwritten note of the Respondent which said "no commission" and the note appears to be consistent with the explanation given by the agent that he explained the commission to the respondent a number of times - refer to discussions on page 2 of statement of agent dated 22 December 2016. This evidence is consistent with the document and is also consistent with the evidence of the purchaser who has no interest in these proceedings - refer Statement dated 20 December 2016 On the balance of probabilities I am not satisfied that the agent made a false or misleading representation.
5. The Member concluded that the commission was payable, calculated in accordance with the Agreement at 1.65% of $1,445,000, $23,842.50.

Availability of Appeal

1. This is an internal appeal pursuant to s 80 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act). An appeal may be made in the case of an interlocutory decision with the leave of the Appeal Panel. In the case of any other kind of decision, the appeal may be brought as of right on a question of law or, with the leave of the Appeal Panel, on other grounds.
2. As this appeal is brought from a decision of the Consumer and Commercial Division of the Tribunal, by virtue of cl 12(1) of Sch 4 to the NCAT Act leave to appeal may only be granted under s 80(2)(b) of the NCAT Act: If the Appeal Panel is satisfied 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).
3. The requirements of cl 12(1) were stated in Collins v Urban [2014] NSWCATAP 17 as follows: 76. Accordingly, it 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) 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.
4. Even if an appellant from a decision of the Consumer and Commercial Division has satisfied the requirements of cl 12(1) of Sch 4, the Appeal Panel must still consider whether it should exercise its discretion to grant leave to appeal under s 80(2)(b). In Collins v Urban the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. Issues of principle; 2. Questions of public importance or matters of administration or policy which might have general application; 3. 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; 4. A factual error that was unreasonably arrived at and clearly mistaken; or 5. 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.

The Notice of Appeal

1. The Notice of Appeal, which was lodged in time, challenged the refusal of the Member to vacate the hearing on 27 February 2017 and the order that the appellants pay $23,842.50. The appellants sought orders that the appeal be granted, and the matter remitted for rehearing.
2. The Notice of Appeal was prepared by a legal practitioner (not the lawyer who represented the appellants in the Local Court or the hearing below). It identifies as appellants Bill and Nada Sepentulevski. The first instance decision, and thus the order for payment, named only Bill Sepentulevski as respondent. However the Local Court Statement of Claim and Defence, and the Agreement, identify the relevant respondents to Free Spirit's claim as Bill and Nada Sepentulevski, and accordingly they are the appropriate appellants.
3. The Grounds of Appeal are: 1. The refusal to vacate the hearing date when Mr Sepentulevski was unavailable due to the illness of a family member denied the appellants a reasonable opportunity to be heard; 2. The nature and complexity of the issues for determination could not be properly determined without the Tribunal hearing oral evidence from the parties; 3. The Tribunal failed to afford the parties the opportunity to make submissions as to whether the hearing should be dispensed with; and 4. In proceeding to hear the matter "on the papers" the appellants were denied procedural fairness and suffered substantial prejudice.
4. The appellants sought leave to appeal, on the grounds that: 1. The failure of the Tribunal to hear oral evidence resulted in a denial of natural justice and raises a significant issue of principle; 2. The decision was not fair and equitable as the issues for determination could not be adequately determined without hearing oral evidence from the parties; and 3. The decision was against the weight of evidence as the Member refused the application to vacate the proceedings due to the illness of a relative, and the Tribunal was not in a position to assess the evidence of the parties.
5. On 31 May 2017, Mr Sepentulevski provided submissions and documents in support of the appeal. Those documents included a witness statement made by Mr Sepentulevski at Miranda Police Station on 11 May 2017 alleging that Brett Ramsey had altered the dates for the end date in the Agreement from 1 February 2016 to 1 April 2016, and forged his initials next to the date change; a copy of the Agreement; and copies of the witness statements of Adel Gendy (20 December 2016) and Brett Ramsey (22 December 2016). In his covering letter Mr Sepentulevski stated: The solicitor engaged in this matter, Mark Hodges did not put forward the following evidence at the hearing of this matter. 1. On the Exclusive Agency Agreement ("Agreement herafter") it is my position that Mr Ramsay forged my initials noting "BS", as set out on that document at page 2 thereof, a copy of which is annexed marked "A". Those are not my initials and I did not ever sing "BS" as noted thereon. The effect of that forgery is to extend the Exclusive Agency period from 1st February 20126 until 1st April 2016. 2. Whether or not the Tribunal accepts Mr Ramsays forged my initials as set out at submission 1 above, my wife Nada S, co-signatory to the Agreement, did not sign or initial where my initials "BS" appear, and as I allege, Mr Ramsay or some other person not known to me forged my initials. Given the Agreement requires 2 signatures to be valid, the extension of the exclusive period of the Agreement is not then valid. 3. To be able to cross exam Mr Ramsays' affidavit. 4. To subpoena the buyer Mr Adel Gendy so I can cross exam his affidavit. 5. To have the opportunity to cross exam M Ramsays solicitor.

Reply to Appeal

1. Free Spirit supported the Tribunal Member's decision, replying to the Grounds of Appeal: 1. The decision not to vacate the hearing was correct for the reasons given, and in any case, the appellants were granted a reasonable opportunity to be heard, as evidence and extensive submissions were put forward at the hearing by their solicitor; 2. The allegations of misleading and deceptive conduct were not a defence to the relevant claim and therefore any evidence in relation to those allegations was irrelevant. In any event, the appellants were granted and took the opportunity to make submissions and put on evidence in respect of the allegations; 3. No application was made for the Tribunal to hear oral evidence. The appellants relied on the affidavit of Mr Sepentulevski, did not seek to rely on oral evidence, did not inform Free Spirit or the Tribunal that they intended to rely on oral evidence and did not ask for Free Spirit's witnesses to be available for cross examination; 4. There was a hearing both of the substantive matter and the application to vacate the hearing and submissions and evidence on both issues were provided by the appellants; and 5. The matter was not heard "on the papers".
2. Free Spirit provided written submissions on 20 June 2017, stating: 1. In relation to the appeal against the Member's refusal to vacate the hearing date: 1. The appellants provided no evidence that Mr Sepentulevski was unavailable to attend the hearing due to the illness of a family member; 2. The appellants were represented throughout the proceedings and at the hearing by a solicitor, who put extensive submissions and evidence at the hearing; 1. In relation to ground (2), 1. the appellants did not file any evidence in compliance with the direction made on 25 November 2016 but chose to rely on the earlier affidavit of Mr Sepentulevski dated 20 September 2016; 2. the appellants did not seek leave to provide oral evidence, or to cross examine Free Spirit's witnesses who were present at the hearing; 1. For grounds (3) and (4), no hearing was dispensed with, the Tribunal did not hear the matter "on the papers", and extensive oral arguments were made by the solicitors for both sides.
3. Free Spirit rejected the allegation of forgery, noting that in any event the allegations are irrelevant as it was common ground that the exclusive agency period had expired. The appellants were represented at the hearing by a solicitor who made submissions and took objections to Free Spirit's evidence. The appellants could have applied for a subpoena to have Mr Gendy present.
4. Free Spirit sought its costs of the appeal.

The Appeal Hearing

1. Mr Sepentulevski appeared in person. Free Spirit was represented by Mr B Johnson, solicitor, who advised that he had appeared on behalf of Free Spirit at the first instance hearing.
2. Both parties had requested a copy of the sound recording of the first instance hearing. However, they were informed that due to technical reasons the sound recording could not be provided.
3. The parties confirmed the Member's note as to who was present. Mr Sepentulevski said that he was represented by his lawyer.
4. In relation to the adjournment, Mr Sepentulevski said he had tried to have the hearing adjourned a couple of weeks before, as his mother was in hospital. If he had been present he could have been cross examined. He would have given evidence about the alteration of the Agreement, and his whole case would have been presented.
5. On the substantive issues, Mr Sepentulevski said that he had told his lawyer about the forgery allegation but his lawyer had said that was irrelevant. It took 6 months to sell the property and it did not sell for what the Agreement said it would go for. He had had a 90 minute discussion with the lawyer before the hearing. He wanted the Tribunal to have the full picture. It would have made a difference if the forgery allegation had been raised, as that would have invalidated the agency agreement.
6. Mr Johnson on behalf of Free Spirit submitted that there had been a request for an adjournment a few days before the hearing and both lawyers made submissions on the adjournment request at the hearing.
7. Mr Johnson submitted that the issues under the PSBA Act were dealt with by the Member. As to whether the evidence established that Mr Ramsey had made false statements during the negotiations between Mr Sepentulevski and Mr Gendy, the only issue was whether Mr Ramsey had said that there would be no commission payable if the property was sold to Mr Gendy. Mr Ramsey and Mr Gendy denied that. Mr Johnson submitted that Mr Sepentulevski had the opportunity to be heard, his evidence was led, he was represented by a solicitor and his arguments were raised. The respondent had requested that Mr Sepentulevski be available for cross examination, and the respondent's witnesses were not asked to attend for cross examination. As to the allegation of forgery, even if it were correct, that was not relevant to the appeal, as it was common ground that the exclusive agency period had expired. In any event, it was not raised at the hearing.
8. Mr Sepentulevski stated that he has not yet paid the commission. If the appeal is unsuccessful and he is required to pay he would need more than a month to pay. After the appeal hearing Mr Johnson obtained instructions, and informed the Tribunal, that Free Spirit would agree to payment of the amount by 6 equal monthly instalments of $3,973.75 with the first instalment payable 28 days from the date of the Appeal Panel orders.

Jurisdiction

1. After the hearing the Appeal Panel requested submissions from the parties as to the jurisdiction of the Tribunal to hear and determine the dispute under the PSBA Act and the Fair Trading Act 1987 (the FT Act), and the transfer of the proceedings commenced in the Local Court pursuant to cl 6(2) of Sch 4 to the NCAT Act. Both parties provided submissions as requested.
2. The respondent's submission was that while the Local Court proceedings were commenced by the respondent for recovery of the commission, the appellants had sought transfer to the Tribunal seeking to be relieved of the obligation to pay the amount claimed, as identified in paragraphs 18 and 19 of the affidavit of Mr Sepentulevski in support of the appellants' notice of motion. The Tribunal has jurisdiction under s 79N(d) of the FT Act to hear and determine the claim for relief from payment of money, and the Tribunal has power under s 79O(b) in such proceedings to make an order that the claimant pay the respondent a specified sum of money. The respondent submits that the proceedings commenced in the Local Court were proceedings that could properly be transferred to the Tribunal pursuant to cl 6(2) of Sch 4, and the Tribunal had jurisdiction to hear and determine the proceedings. We accept those submissions.

The refusal of the adjournment

1. The first ground of appeal relates to the Member's refusal to vacate the hearing date when Mr Sepentulevski was unavailable. The decision of the Member to refuse to vacate the hearing at the request of Mr Sepentulevski was an "interlocutory decision" as defined in s 4 of the NCAT Act, and leave to appeal is required: s 80(2)(a) NCAT Act. The considerations relevant in determining whether to grant leave were considered by the Appeal Panel in Clarke v Tapp [2015] NSWCATAP 81, by reference to the principles to be derived from the objects of the Act and the nature of the appeal, and s 36 of the NCAT Act. The Appeal Panel held: 19. While there is no rigid test or criteria for the granting of leave in cases such as this, the Court of Appeal has recently set out the relevant principles applicable to courts in Clarke v New South Wales [2015] NSWCA 27 at [20]: On the present application, Mr Clarke must demonstrate something more than that conclusions the primary judge reached in the exercise of her Honour's discretion pursuant to UCPR 14.28 and 13.4 were arguably wrong: Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. To succeed in challenging the exercise of such a discretion, he must establish an error in the House v R sense (House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 504-5), namely that her Honour made an error of legal principle and/or a material error of fact, took into account an irrelevant consideration, failed to take into account, or give sufficient weight to, a relevant consideration or arrived at a result so unreasonable or unjust as to suggest such an error: see also Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45]. 20. An applicant for leave must demonstrate something more than that the decision maker was "arguably wrong". Ordinarily, what is required is that there is an issue of principle, questions of general public importance or an injustice which is reasonably clear": Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 at [4].
2. The written reasons provided by the Member in the notice of order of 27 February 2017 do not include reasons for her decision to refuse to vacate the hearing. There is no copy of the sound recording of the hearing available to the Appeal Panel with oral reasons for that decision. However, it was common ground that while Mr Sepentulevski was not present at the hearing, he was represented by a solicitor who made submissions on the adjournment application. That solicitor had represented the appellants in the Local Court proceedings, including in the motion to transfer the proceedings to the Tribunal and in the preparation of Mr Sepentulevski's supporting affidavit. The solicitor had, as stated by Mr Sepentulevski, spent time with him before the hearing. While Free Spirit had requested that Mr Sepentulevski attend for cross examination, its opposition to the adjournment application would indicate that it was prepared not to insist on having an opportunity to cross examine Mr Sepentulevski if the hearing proceeded on the scheduled date. There is nothing in the material before the Appeal Panel that would establish an exercise of the discretion by the Member in refusing to vacate the hearing that was affected by an error in the House v R sense so as to warrant the grant of leave to appeal against that refusal. Leave to appeal against that decision is refused.

Whether there was an error on a question of law

1. Appeal grounds (3) and (4) (see par [18] above), that the Tribunal failed to afford the parties an opportunity to make submissions as to whether the hearing should be dispensed with, and that in hearing the matter "on the papers", the Tribunal denied procedural fairness, may be shortly dealt with. Had the Member decided to dispense with a hearing under s 50 of the NCAT Act, she would have been required to consider any submissions made by the parties as to that course: s 50(3). However, she did not dispense with the hearing and determine the matter on the basis of the documents and other material provided to the Tribunal. The hearing proceeded, and as the Member stated in her reasons, she had regard both to the statements of Mr Ramsey and Mr Gendy on behalf of Free Spirit and Mr Sepentulevski on behalf of the appellants, the written submissions of Free Spirit, and she heard oral argument from both legal representatives.
2. As drafted in the Notice of Appeal, appeal ground (2) contends that the nature and complexity of the issues could not be properly determined without the Tribunal hearing oral evidence from the parties. If a denial of procedural fairness were established that would be an error of law, and leave to appeal would not be required: Prendergast v Western Murray Irrigation [2014] NSW CATAP 69; Italiano v Carbone [2005] NSWCA 177.
3. The issues addressed by the Member relating to the requirements of s 36 of the PSBA Act for the agent to serve a statement of claim, and s 72A relating to an agent's estimate of selling price, were dealt with on the basis of the documentary evidence before the Member, and the oral submissions of the legal representatives. The Member's reasons make it clear that the appellants did not rely on any oral evidence as to those matters. The appellants have not identified any matter on which oral evidence was required to establish those matters, or any legal error in the Member's conclusions as to those matters.
4. The third matter considered by the Member was the appellants' claim that the agent made a false or misleading representation that Mr Sepentulevski would get $1,445,000 after deduction of expenses. The Member's reasons for preferring the agent's evidence, as provided in the statements of Mr Ramsey and the purchaser, and rejecting the claim, are set out at par [10] above. As recorded by the Member, Mr Ramsey and Mr Gendy were present at the hearing, and could have been cross examined by the appellant's legal representative. As noted by Basten JA in Italiano v Carbone [2005] NSWCA 177 at [88], "[a]n opportunity foregone, but reasonably available, does not demonstrate breach of procedural fairness". The appellants' legal representative had the opportunity to challenge the evidence on which the Member relied in making her findings, and did not. There was no denial of procedural fairness.
5. The appellants have not established an error on a question of law.

Whether leave to appeal should be granted

1. The grounds on which leave to appeal is sought, as summarised at par [19] above, repeat the grounds considered above. The Appeal Panel has found there was no denial of procedural fairness. There was evidence to support the Member's findings as to the discussions between the parties, and the Member gave reasons for preferring the agent's evidence over that of Mr Sepentulevski. The appellants have not established that they may have suffered a substantial miscarriage of justice in the circumstances, in the sense that they may have been deprived of a "significant possibility" or a "chance which was fairly open" of a different outcome.
2. In his submissions on the appeal received on 31 May 2017, Mr Sepentulevski submitted that his lawyer had not put forward his allegation that the agent forged Mr Sepentulevski's initials on the Agreement in extending the exclusive agency period from 1 February 2016 to 1 April 2016. To the extent that that allegation was not raised at the hearing below, it cannot be raised on the appeal. Further, it is irrelevant. Mr Sepentulevski's affidavit confirms that no sale was concluded on the day of the discussions. Whether the exclusive agency period ended on 1 February 2016 or on 1 April 2016, it had ended by the time of the sale to Mr Gendy at $1,455,000 on 6 May 2016. If this allegation and the witness statement are put forward as "significant new evidence" for the purposes of cl 12(1) of Sch 4 to the NCAT Act, it is irrelevant to the claim by the agent for payment of commission, and could not be regarded as "significant", in the sense that there is a significant possibility that a different more favourable result would have been achieved had it been put before the Member.
3. Mr Sepentulevski also submitted that his lawyer had not put forward that he should be able to cross examine Mr Ramsey and Mr Gendy, and Mr Ramsey's solicitor. As discussed above, both Mr Ramsey and Mr Gendy were present at the hearing, and the appellants' lawyer had the opportunity at that time to seek leave to cross examine them, but did not. The Member's reasons do not indicate that Mr Ramsey's lawyer gave evidence on which he could have been cross examined.
4. Leave to appeal is refused.

Costs of the Appeal

1. Free Spirit sought its costs if the appeal was unsuccessful, and submitted that there are special circumstances warranting an award of costs, namely that the Notice of Appeal was drafted by a lawyer, and there was no tenable basis in fact or law for the appeal; and that the matters raised by the appellants are irrelevant, and Mr Sepentulevski has made scurrilous allegations on a matter not relevant to the appeal or raised below.
2. Mr Sepentulevski submitted that he should not have to pay costs, because Free Spirit had taken them to the Local Court and then the matter was transferred, and he had not asked for his legal costs.
3. The general provision is that each party to proceedings in the Tribunal pays its own costs, unless there are special circumstances warranting an award of costs: s 60(1), (2) NCAT Act. Subsection 60(3) lists the relevant matters in determining whether there are special circumstances warranting an award of costs. As noted by the Appeal Panel in Fox v Vaucluse Bowling Club Ltd [2017] NSWCATAP 160 at [52], "special circumstances" are circumstances that are out of the ordinary, however they do not have to be extraordinary or exceptional. Free Spirit relies on s 60(3)(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, and (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance. While the appellants have not been successful on the appeal, it could not be said that the appeal was completely untenable or misconceived, and the Appeal Panel is not satisfied that there are special circumstances warranting an award of costs.

Conclusion

1. The appellants have not established an error on a question of law, and leave to appeal is refused. Accordingly, the order for payment of the commission to the agent stands. The order made on 27 February 2017 was for Mr Sepentulevski to pay $23,842.50 on or before 27 March 2017. As noted above, Free Spirit agrees to the variation of that order to permit payment by instalments.
2. The orders of the Appeal Panel are: 1. Leave to appeal refused. 2. Pursuant to s 81(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) Order 1 made on 27 February 2017 is varied to be: "1. Mr Bill and Mrs Nada Sepentulevski are to pay Free Spirit Pty Ltd the sum of $23,842.50 in six equal monthly instalments of $3,973.75, the first instalment payable within 28 days of the date of this decision. 2. Failure to pay any instalment in accordance with order 1 means that the full amount then owing is immediately due and payable." 1. The appeal is otherwise dismissed. 2. No order as to costs.

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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: 29 May 2018