Abdelmessiah v Lifestyle Marketing Pty Limited

[2022] NSWCATCD 103

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Abdelmessiah v Lifestyle Marketing Pty Limited [2022] NSWCATCD 103

Hearing dates:

20 May 2022

Date of orders:

06 July 2022

Decision date:

06 July 2022

Jurisdiction:

Consumer and Commercial Division

Before:

P Zammit, General Member

Decision:

The Tribunal orders:

1. The Tribunal has jurisdiction to deal with the claim.

2. The matter is to be listed for a hearing on a date to be fixed

Catchwords:

CONSUMER LAW - Jurisdiction - Civil and Administrative Tribunal 

Legislation Cited:

Australian Consumer Law (NSW)

Fair Trading Act 1987 (NSW)

Cases Cited:

Mercier Rouse Street Pty Ltd v Burness [2014] VSCA

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Eva Abdelmessiah (First Applicant)
Antionette Abdelseed (Second Applicant)
Lifestyle Marketing Pty Limited trading as RE/MAX Lifestyle Marketing (First Respondent)
Universal Property Group Pty Limited trading as The Bathla Group (Second Respondent)

Representation:

Counsel:
B Anderson (First Respondent)
I Chatterjee (Second Respondent)

Solicitors:
Sparke Helmore (First Respondent)
Northern Beaches Construction Lawyers (Second Respondent)

File Number(s):

GEN 21/45800

Publication restriction:

NIL

REASONS FOR DECISION

Introduction

1. This matter involves the applicant’s claim for loss and damages from the first and second respondents. The applicant alleges that the respondents have contravened the Australian Consumer Law (“ACL”) by making representations in breach of sections 18 and/or 30(c).

2. The matter has initially been before the Tribunal for a determination on whether the Tribunal has jurisdiction to hear the substantive components of this claim.

History of Claim 

3. At all material times, the second respondent was a developer of residential property including property located at xxx Caddens Road, Claremont Meadows (the “Claremont Meadows Development”).

4. The applicant contends that the first respondent was engaged by the second respondent to act as its agent in the sale of lots of land in the Claremont Meadows development.

5. The first respondent acknowledges that they were engaged by the second respondent to be its agent to sell lots in the Claremont Meadows Development.

6. The second respondent denies that the first respondent was ever engaged as its agent to sell the properties and submits that the first respondent was only every appointed for the purpose of “marketing for sale land, and land and house packages” and further that the first respondent never had authority to agree to sell land, or a house and land package.

7. On or about 16 October 2020 the applicant engaged with the first respondent regarding the potential purchase of a lot of land from the second respondent being Lot 2 in Claremont Meadows Development.

8. On or about 12 November 2020 the applicant paid to the first respondent the sum of $1,000 as a “holding deposit” for Lot 2.

9. On or about 19 July 2021 Lot 2 as sold to an unrelated third party at a price of $719,900.

Applicant's Claim 

10. The applicant is seeking damages pursuant to section 236 of the ACL. The applicant initially sought damages totalling “$456,970 and accruing at the rate of $580 per week” however subsequently has acknowledged the jurisdictional limit of the Tribunal and has reduced the amount claimed to $40,000.

11. In the applicant’s Points of Claim, the applicant identifies two categories of representations that are alleged to have been made by the respondents to the applicant which the applicant claims are misleading or deceptive or likely to mislead or deceive or are false or misleading representations about the sale of land.

12. The applicant has labelled these two categories as “Lot 2 Representations” and “The Deposit Representations”.

13. In relation to the “Lot 2 Representations” the applicant asserts that the relevant statements made by the respondents which were in breach of the ACL were:

1. The sale of lots on the Property (Claremont Meadows Development) was not for the sale of land only but for the sale of land and house packages;

2. The land compromising Lot 2 was not for sale but only available for sale as part of a house and land package;

3. The land comprising Lot 2 could be purchased for the sum of $649,990.

4. Lot 2 was sold for $830,000.

14. In relation to “The Deposit Representations the applicant asserts that the relevant statements made by the respondent which were in breach of the ACL were:

1. That the lots on the Property (Claremont Meadows Development) were selling quickly;

2. That if the applicant paid a “holding deposit” on Lot 2 she:

1. could prevent Lot 2 from being sold to another purchaser;

2. was guaranteed to purchase Lot 2.

15. The applicant submits that she relied on the “Lot 2 Representations” and the “Deposit Representations” and took the following steps:

1. Paid a holding deposit for Lot 2

2. Met with the second respondent to discuss house plans

3. Researched builders and building ideas

4. Hastily sold a property located at xx O’Connell Street, Claremont Meadows (the “O’Connell Street property”) in order to fund the purchase of Lot 2 for the sum of $642,500

5. Obtained rental accommodation at xx Vandalay Road Caddens (the “Rental Property”)

6. Paid rent for the rental property from 8 December 2020 and continuing

7. Ceased searching for a residential property to purchase suitable to accommodate the applicant’s ageing mother.

16. The applicant claims damages for the following items based upon her reliance on the “Lot 2 Representations” and the “Deposit Representations”:

1. Deposit of $1,000

2. Rent from 8 December 2020 to 8 December 2021 in the sum of $29,900.

3. Rent from 9 December 2020 onwards in the sum of $580 per week

4. Loss of sale on O’Connell Street property in the sum of $242,000.

5. Loss of opportunity costs in the sum of $180,010.

reduced in accordance with the Tribunal’s jurisdictional limit to $40,000.

Jurisdiction

17. The applicant makes the claim pursuant to Part 6A of the Fair Trading Act 1987 (FTA).

18. The applicant contends that the respondents engaged in conduct in contravention of sections 18 and/or 30(c) of the Australian Consumer Law.

19. The applicant submits that the Tribunal has jurisdiction to hear this matter as it arises from the “respondents’ conduct in their supply, or agreement to supply, services to the applicant.

20. It is submitted that the services supplied by the respondents to the applicant included services to facilitate the purchase of land and the construction of a domestic building on the said land.

21. The first respondent submits that the Tribunal lacks jurisdiction to deal with this matter as it involves the sale of land which is expressly excluded from the definition of goods in section 79D of the FTA.

22. Further the first respondent submits that in the event it is alleged that services were provided by the first respondent to the applicant, the Tribunal does not have the jurisdiction to hear the matter and relied on the findings in Mercier Rouse Street Pty Ltd v Burness [2014] VSCA (“Mercier Rouse Street”).

23. The second respondent accepts the Tribunal’s jurisdiction in relation to the “Lot 2 Representations”. However, the second respondent submits that the Tribunal does not have jurisdiction to deal with the “Deposit Representations” as this element of the dispute concerns the sale of an interest in land and for that reason is outside of the Tribunal’s jurisdiction.

Relevant Law

24. The Tribunal has jurisdiction to deal with consumer claims as established by section 79J of the FTA.

79J General statement of jurisdiction

25. The Tribunal has jurisdiction, except as otherwise provided by this Division, to hear and determine a consumer claim the subject of an application under this Division.

26. Consumer claims are defined in section 79E of the FTA.

79E Meaning of “consumer claim”

(1)    For the purposes of this Part, a consumer claim mean a claim by a consumer, for one or more of the following remedies, that arises from a supply of goods or services by a supplier to a consumer (whether or not under a contract) or that arises under a contract that is collateral to the contract for the supply of goods or services-    

(a) the payment of a specified sum of money,

(b) the supply of specified services,

(c) relief from payment of a specified sum of money,

(d) the delivery, return or replacement of specified goods or goods of a specified description.

(2)   For the avoidance of doubt, a reference in this Part to a consumer claim includes a reference to a claim by a consumer against a supplier (for example, a manufacturer or wholesaler) who is not the direct supplier of goods or services to the consumer if the claim arises from or in connection with the supply of those goods or services by the direct supplier to the consumer.

27. Definitions of both “consumer” and “goods” are founds in section 79D of the FTA.

79D Definitions

Consumer means any of the following persons or bodies to whom or to which a supplier has supplied, or agreed to supply goods, or services (whether or not under a contract), or with whom or with which a supplier has entered into a contract that is collateral to a contract for the supply of goods or services-

1. a natural person,

2. a firm (within the meaning of the Partnership Act 1982),

3. a small proprietary company (within the meaning of the Corporations Act 2001 of the Commonwealth),

4. an owners corporation constituted under the Strata Schemes Management Act 2015,

5. a company that owns an interest in land and has a memorandum or articles of association conferring on each owner or shares in the company a right to occupy under a lease or licence a part of parts of a building erected on the land,

6. an incorporated association,

7. an unincorporated body whose members are associated for a common purpose,

8. a company that is limited by guarantee (other than a company limited both by shares and by guarantee).

Goods means any tangible thing that is or may be the subject of trade or commerce, but does not include money or an interest in land.

28. Services are defined in 79F of the FTA.

79F Meaning of “services”

1. For the purposes of this Part, a reference to services is a reference to any of the following-

1. the performance of work (including work of a professional nature), whether with or without the supply of goods,

2. the provision of gas or electricity or the provision of any other form of energy,

3. the provision, or the making available for use, of facilities for amusement, entertainment, recreation or instruction,

4. the letting of premises for vacation or recreational purposes,

5. the conferring or rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction,

6. the provision of insurance cover,

7. the rights or benefits provided, granted or conferred under a contract between a banker and a customer of the banker entered into in the course of the carrying on by the banker of the business of banking,

8. the provision of credit,

9. any other rights (including rights in relation to, and interests in, property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce.

29. The definition of “supply” in relation to services is set out in section 79G(2) of the FTA

79G Meaning of “supply”

1. For the purposes of this Part, a reference to the supply of services includes a reference to any of the following:

1. providing, granting or rendering services for valuable consideration,

2. agreeing to supply services

3. supplying services together with goods.

Findings

30. I find that the applicant is a natural person and is a consumer within the definition of the FTA.

31. In relation to the arguments raised by the first respondent, Mercier Rouse Street was a complex matter that related to parties who had entered into various deeds for the funding of a large scale apartment complex. As part of the agreement reached, in exchange for the funding one set of parties would be entitled to have one apartment transferred to them. The application made to VCAT was seeking specific performance of the contract requiring the transfer of the property. VCAT instead ordered a sum of monies to be payable, shortly after which the relevant company was placed into liquidation. Further proceedings ensued regarding the equitable interests in the property, to which the applicants in the VCAT proceedings were only one element of the further proceedings and subsequent appeal.

32. In the appeal decision, Santamaria JA discussed the jurisdiction of VCAT in relation to services and found that the contextual meaning of the term “services” cannot be taken to

[191] incorporate the obligations of a vendor to deliver a transfer to the purchaser under a simple contract for the sale of land, this transaction falls outside the definition of “services” in s3 of the ACL.

33. It is noted that Santamaria JA, was one of three judges who heard the appeal. Warren CJ declined to express a concluded view as to whether VCAT had jurisdiction and Neave JA argued that it was not a consumer and trader dispute because the interest in the apartment was part of a broader arrangement in which funds were advanced for the development.

34. The current matter before the Tribunal is distinguishable from the decision in Mercier Rouse Street as the services the respondents’ provided the applicant were not simply obligations of a vendor to transfer property under a simple contract for the sale of land.

35. On the evidence before the Tribunal I am satisfied that the respondents supplied services to the applicant and are a consumer claim within the definition of the FTA and the Tribunal has jurisdiction to hear these claims.

36. I do not differentiate between the two separate categories of representations as set out by the applicant, as both sets of representations refer to a service that was provided by the respondents.

37. The Tribunal directs the matter to be listed for a hearing on a date to be fixed.

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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

Decision last updated: 26 August 2022