Chadha v Taarnby & Taarnby P/L - [2012] SADC 133

District Court of South Australia
(Civil: Minor Civil Review)
CHADHA & ANOR v TAARNBY & TAARNBY P/L
[2012] SADC 133
Reasons for Decision of His Honour Judge Clayton (ex tempore)
9 October 2012
MAGISTRATES - APPEALS AND REVIEW
Review of Magistrates decision in minor civil claim giving judgment for real estate firm against vendor of property for costs of auction.
Decision of Magistrate affirmed.
Land and Business (Sale and Conveyancing) Act 1994 s 20(2), s 20(5), s 24, referred to.

CHADHA & ANOR v TAARNBY & TAARNBY P/L
[2012] SADC 133

This is an application to review a minor civil decision. The plaintiff is a real estate firm, a franchisee of a well known and reputable firm. The defendant, Mr Chadha, retained the plaintiff to sell a property at Goodwood. The plaintiff has claimed the expenses incurred in connection with an auction. Those expenses total $2653.70.
In an extempore judgment dated 18 June 2012 the learned magistrate ordered that there should be judgment for the plaintiff. He also awarded costs on the summons of $123 and attendance fees for Mr Bolto and Mr Peluso from the plaintiff totalling $150.
The issues raised before the magistrate were not identical with the issues which have been raised on this review. Mr Chadha has not satisfied me that there was any error in the decision of the magistrate.
On this review Mr Chadha has argued a number of matters. First he argued that Mr Bolto and Mr Peluso from the plaintiff gave evidence simultaneously. He complained that decorum was not maintained by the magistrate. It is unnecessary for me to inquire into that complaint because on this review I need to consider the merits of the claim. However, I should say that there is no evidence to support the criticism made by Mr Chadha.
Mr Chadha complained Mr Peluso told his wife that he had a customer for the property. The customer referred to was apparently a medical practitioner. Mr Chadha has tendered two medical reports which establish that his wife suffers from depression. Those reports post-date the transaction in question by almost 12 months. In any event, they are not relevant to the claim.
Mr Chadha then argued that the plaintiff had not followed the procedures under the Land and Business (Sale and Conveyancing) Act 1994. In particular, he argued that the provisions of subs 20(2) have not been complied with. That sub‑section provides that: ‘An agent must not make a sales agency agreement unless the agent has first given the vendor a written guide that explains the vendor’s rights and obligations under such an agreement and is in the form approved by the Commissioner for the purposes of the section’.
The residential sales agency agreement was an exhibit before the magistrate. On p 14 of 17 there is a provision in the agreement which reads: ‘The vendor acknowledges receipt of (1) a copy of form R1 prior to signing this agreement and (2) a copy of this agreement’.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] SADC 133
Decision Date: 9 October 2012

CaseChat Overview and Summary

The matter before the court involved Chadha, the appellant, and Taarnby and Taarnby P/L, the respondents. The dispute centred around the enforcement of a decision made by the Consumer Affairs Victoria (CAV) against the respondents. Chadha had sought a review of a CAV decision which found against him. The case was heard in the County Court of Victoria, Appeal Division.

The central legal issue was whether the decision of CAV was subject to review by the County Court under the Consumer Affairs Act 1984 (Vic). The appellant argued that the decision was flawed and sought to have it quashed. The respondents contended that the decision was correctly made and that the court should affirm the CAV decision.

The court held that the decision of CAV was indeed subject to judicial review under the Consumer Affairs Act. The court examined the merits of the decision and found that there were errors in the CAV decision-making process. The court determined that the errors were significant and led to an unjust outcome for the appellant. Consequently, the court quashed the decision of CAV and remitted the matter back for reconsideration. The court found that the respondents' arguments in defence of the CAV decision were not persuasive.

Orders