El-Behidi v Commissioner for Consumer Affairs

[2025] SASC 182

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

EL-BEHIDI v COMMISSIONER FOR CONSUMER AFFAIRS

[2025] SASC 182

Judgment of the Honourable Justice Gray  (ex tempore)

21 October 2025

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - SOUTH AUSTRALIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

CONVEYANCING - THE CONTRACT AND CONDITIONS OF SALE - CLAIMS FOR COMPENSATION

This matter concerns an application for leave to appeal against a decision of a senior member of the South Australian Civil and Administrative Tribunal which affirmed a decision of the respondent, the Commissioner for Consumer Affairs, dismissing a claim under s 32 of the Conveyancers Act 1994 (SA) on the indemnity fund.

The claim by the applicant, Mr El-Behidi, arose out of a failed business transaction concerning the sale of his business, Woodville Pizzeria, to a Mr Pericleous in November 2017.

The applicant did not identify error in the decision of the learned Senior Member. The applicant made general complaints regarding negligence and deceptive conduct on the part of the conveyancer, and complained of a failure by the respondent to provide assistance to him. No party disputed that at all relevant times no monies were paid to the applicant by Mr Pericleous and no monies were held on trust by the conveyancer.

The respondent submitted that leave to appeal should be refused as the matter was not reasonably arguable. It was submitted that as no trust money was held by the conveyancer, the claim under s 32 of the Conveyancers Act 1994 (SA), must fail, as such a claim is founded on the occurrence of fiduciary default by a conveyancer in relation to trust money.

Held, refusing leave to appeal:

1.No trust money was held by the conveyancer at any relevant time and a claim under s 32 of the Conveyancers Act 1994 (SA) does not arise on the facts of this case. There is no reasonably arguable case or matter of sufficient substance warranting consideration on appeal which justifies a grant of leave: at [27].

Conveyancers Act 1994 (SA) s 14, s 31, s 32 and s 37; Land Agents Act 1994 (SA) s 29; South Australian Civil and Administrative Tribunal Act 2013 (SA) s 37 and s 71, referred to.
Aldridge v Registrar of Firearms (SA) [2022] SASC 5; Jackson v Lepp Investments Pty Ltd [2016] [2016] SASC 62; (2016) 125 SASR 1; Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10; Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191, considered.

EL-BEHIDI v COMMISSIONER FOR CONSUMER AFFAIRS

[2025] SASC 182

Civil:   Single Judge Appeal

GRAY J (ex tempore):

Introduction

1. This matter concerns an application by Mr El-Behidi, the applicant, for leave to appeal against a decision of a senior member of the South Australian Civil and Administrative Tribunal (‘SACAT’ or ‘the Tribunal’) made on 3 July 2025. 

2. On 12 December 2024, the respondent dismissing a claim made by the applicant against the indemnity fund established under Part 4, Division 3 of the Conveyancers Act 1994 (SA) (‘Conveyancers Act’),[1] pursuant to s 32 of the Conveyancers Act (‘the Commissioner’s decision’), for compensation in the amount of $330,000.[2] The applicant sought review of the Commissioner’s decision before the Tribunal pursuant to s 37 of the Conveyancers Act.

   [1] The indemnity fund, on which claims are permitted by s 32 of the Conveyancers Act 1994 (SA), is established pursuant to s 29(1) of the Land Agents Act 1994 (SA).

   [2]     Appeal Book (FDN 8) at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1) (‘AB’).

3. The Tribunal affirmed the decision of the Commissioner.[3]  The applicant seeks leave to appeal from the Tribunal’s decision.  The applicant also seeks orders summonsing a number of witnesses to give evidence as to the events which are said to have taken place.

   [3]     South Australian Civil and Administrative Tribunal Act 2013 (SA) s 37(1)(a).

4. The Commissioner for Consumer Affairs, (‘the respondent’ or ‘the Commissioner’), opposes a grant of leave to appeal, on the basis that the applicant has not established reasonably arguable grounds.  In the alternative, the respondent submits that the appeal should be dismissed because the applicant did not establish any appellable error.

   Background and nature of the appeal

5. The applicant lodged a claim with the Commissioner under s 34 of the Conveyancers Act seeking compensation for losses he says he suffered as a result of a transaction he entered into with a Mr Alecos Pericleous.[4]

   [4]     AB at 36.

6. The claim, brought by the applicant on 21 December 2020, relates to the sale of a business that the applicant operated which traded under the name Woodville Pizzeria.  The business was located at Shop 3, 39 Woodville Road, Woodville SA 5011 (‘the business’).

7. The background to this claim, as appears from the decision at first instance or the decision of the Tribunal, is as follows:

   7.1.On 1 November 2017 Mr Pericleous agreed to purchase the business for $165,000.[5]  Payment of that sum was to be made by 1 July 2018.[6]

   7.2.Prior to the payment of the monies on 1 July 2018, between 1 November 2017 and 1 July 2018, Mr Pericleous agreed to pay a monthly licence fee of $2,250 to cover rent and outgoing expenses charged by the landlord.[7] 

   7.3.A licence agreement may have been completed for the sale by Mr John Radovanovic, an employee of FJ & F Portelli Pty Ltd, trading as Port Adelaide Conveyancers (‘the conveyancer’).[8]

   7.4.Mr Pericleous failed to make the required monthly payments and the lease agreement, which remained in the name of the applicant, was terminated by the landlord.[9]  The landlord’s agent repossessed the premises and the premises were sold at auction.[10]

   7.5.The applicant contended that he had been scammed and Mr Pericleous had moved into the premises, sold all goods and chattels belonging to the applicant, paid no rent or outgoing expenses, and placed no monies in trust with the conveyancer.[11]  The applicant stated that he suffered significant pecuniary losses as a result of the sequence of events which took place.[12]

   [5]     AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

   [6]     AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1)

   [7]     AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

   [8]     AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

   [9]     AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

   [10] AB at 7 (Order of the Tribunal dated 3 July 2025 at 2, [9]).

   [11] AB at 7 (Order of the Tribunal dated 3 July 2025 at 2, [8]-[9]).

   [12] AB at 7 (Order of the Tribunal dated 3 July 2025 at 2, [8]).

8. At the hearing before this Court, the applicant also referred to, and advanced submissions, concerning the entry into a written agreement to sell the business.  Whilst those factual matters referred to above appear from the papers, what is not in dispute is that no monies were paid to the applicant by Mr Pericleous and no monies were held in trust by the conveyancer at the relevant times.

9. The applicant’s claim made on 21 December 2020 to the respondent pursuant to s 32 of the Conveyancers Act for compensation from the indemnity fund was in the amount of $330,000. 

10. The respondent dismissed the claim on the basis of the evidence before the respondent indicating that as there was no evidence to support that the applicant had suffered a pecuniary loss as a result of a fiduciary default by the conveyancer.[13]

    [13]   AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

11. The applicant sought review of the Commissioner’s decision before SACAT pursuant to s 37 of the Conveyancers Act. The learned Senior Member affirmed the Commissioner’s decision, dismissing the claim from the indemnity fund. The learned Senior Member identified that the issue to be determined on review was whether a fiduciary default was committed by a conveyancer in relation to trust money which would support a claim for compensation.[14]  The learned Senior Member’s reasons record the following:[15]

    18. There is no evidence before me on review to establish that Mr El-Behidi suffered a pecuniary loss as a result of a fiduciary default by a conveyancer. In the applicant’s filed written submission, he agrees with that factual finding.

    19. Accordingly, there can be no indemnity for any loss suffered by the applicant for any ‘fiduciary default’ (i.e., inappropriate dealing with trust funds) under the legislation as none exists.

    20. The decision made by the Commissioner is correct at law. There is no preferable decision because there is no discretion to be exercised on review.

    21. The Tribunal only has the power to deal with a reviewable decision within the strict terms of the relevant legislation which confers jurisdiction on the Tribunal. This means that the Tribunal can only make a decision that accords with the Conveyancer’s Act and that the Tribunal only has the same decision-making power as the Commissioner. Neither the Commissioner nor the Tribunal have the power to award compensation generally to the applicant for any other losses that he may have suffered as a result of the subject transaction outside of the terms of s 32 of that Act.

    [14] AB at 7-8 (Order of the Tribunal dated 3 July 2025 at 2-3, [15]).

    [15] AB at 8 (Order of the Tribunal dated 3 July 2025 at 3, [18]-[21]).

12. The learned Senior Member found that the terms of the Conveyancers Act do not permit for an award of compensation from the indemnity fund save and except as permitted by s 32.[16]

    [16] AB at 8 (Order of the Tribunal dated 3 July 2025 at 3, [22]).

    Statutory basis of the appeal and relevant principles

13. An appeal to this Court from a decision of a senior member requires leave.[17] The time for instituting an appeal is one month.[18]

    [17]   South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(2).

    [18]   South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3).

14. This Court should only grant leave to appeal from a SACAT internal review decision where the appeal is reasonably arguable, and the subject matter is of sufficient substance to justify consideration.[19]

    [19]   See, as to being reasonably arguable: Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5-6, [19]-[20] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing). See, as to substance: Aldridge v Registrar of Firearms (SA) [2022] SASC 5 at [33] (Parker J).

15. It is important that leave is not granted as a matter of routine.  SACAT is a specialist tribunal, and the granting of leave too readily would undermine the legislative intention to establish SACAT as a specialist tribunal.[20]  The overarching consideration is the interests of justice.[21]

    [20]   Varricchio v Wentzel [2016] SASC 86; (2016) 125 SASR 191 at 198, [37] (S Doyle J).

    [21]   Jackson v Lepp Investments Pty Ltd [2016] SASC 62; (2016) 125 SASR 1 at 5, [19] (Parker J); Pix v South Australian Housing Trust [2016] SASCFC 57; (2016) 125 SASR 10 at 11, [3] (Kourakis CJ, with Bampton and S Doyle JJ agreeing).

16. Should a grant of leave be given, an appeal to this Court from a decision of SACAT is by way of rehearing.[22]  Inferences of fact can be drawn from evidence and materials before the Court and further evidence or material can be submitted to the Court if it is thought fit.[23]  The Court may affirm, vary or set aside the decision of the Tribunal, and remit the matter for reconsideration in accordance with any directions should that be considered appropriate.[24]

    [22]   South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3a).

    [23]   South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(3b).

    [24]   South Australian Civil and Administrative Tribunal Act 2013 (SA) s 71(4).

    Consideration

17. The applicant does not in his grounds of appeal identify specific error in the decision-making process of the Tribunal or in the decision of the Tribunal.  Rather, the applicant, in a lengthy document attached to the notice of appeal, makes allegations concerning deceptive conduct and negligence on the part of the conveyancer.[25]  The applicant also makes complaint as to the manner in which the Commissioner dealt with the complaint he made about the conveyancer to the Commissioner.[26] 

    [25]   AB at 18 (Typed note of the applicant accompanying grounds of appeal dated 24 July 2025 at 1 (‘Applicant’s Note’)).

    [26]   AB at 19 (Applicant’s Note at 2).

18. As was explained to the applicant during the course of the hearing before this Court, complaints concerning deceptive conduct and negligence not relating to trust funds may form the basis of a civil claim.  Those complaints do not identify error in the decision of the Tribunal.[27]

    [27]   The applicant appeared as a self-represented litigant at the hearing with the assistance of an interpreter.

19. In relation to the complaints advanced about the conduct of the Commissioner, a complaint in relation to that conduct may found a civil claim or be the basis of a complaint to the Ombudsman, but again those complaints which do not relate to trust money do not identify error in the decision of the Tribunal.

20. Section 32(1) of the Conveyancers Act states that a ‘person who has suffered a pecuniary loss as a result of a fiduciary default may make a claim for compensation to the Commissioner.’ The applicant’s claim was brought pursuant to s 32 of the Conveyancers Act.

21. Although the applicant in oral submissions says to the effect that the Commissioner should have considered his claim more broadly, the applicant advanced his complaint as a complaint against the conveyancer and a claim on the indemnity fund.

22. The applicant did not identify appellable error in the consideration of his claim as being a claim brought pursuant to s 32 of the Conveyancers Act.  Pursuant to the provisions of the Conveyancers Act, fiduciary default is defined as follows:[28]

    fiduciary default means a defalcation, misappropriation or misapplication of trust money occurring while the money is in the possession or control of—

    (a)     a conveyancer; or

    (b)     a firm of which a conveyancer is a member.

    [28]   Conveyancers Act 1994 (SA) s 14(1).

23. The Conveyancers Act defines trust money as follows:[29]

    trust money, in relation to a conveyancer, means money—

    (a)that is received by the conveyancer when acting on behalf of another in connection with a dealing with land; and

    (b)to which the conveyancer is not wholly entitled in law and in equity,

    but does not include money received by a conveyancer in the course of mortgage financing.

    [29]   Conveyancers Act 1994 (SA) s 14(1).

24. The Commissioner, as noted above, found that there was no evidence that the applicant suffered a pecuniary loss because of a fiduciary default by the conveyancer.[30] The Tribunal affirmed the Commissioner’s decision under review to reject the claim under the indemnity fund pursuant to s 32 of the Conveyancers Act.  In reaching that conclusion, the Tribunal reasoned that there was no money held on trust by the conveyancer, and therefore so no defalcation, misappropriation or misapplication of trust money occurred.[31]  The Tribunal noted that the applicant in his filed written submission agreed with the factual finding that there was no evidence before the Tribunal on the review to establish that the applicant suffered a pecuniary loss as a result of a fiduciary default by a conveyancer.[32]  In his notice of appeal to this Court, the applicant states, “[a]t no point did I claim that any funds were held or transferred to the conveyancer’s trust account.”[33]

    [30]   AB at 4 (Determination of Claim for Compensation under the Conveyancers Act 1994 at 1).

    [31] AB at 8 (Order of the Tribunal dated 3 July 2025 at 3, [16]).

    [32] AB at 8 (Order of the Tribunal dated 3 July 2025 at 3, [18]).

    [33]   AB at 19 (Applicant’s Note at 2).  The applicant was afforded the opportunity to seek an adjournment of the hearing so as to obtain legal advice however he indicated he had had the opportunity to obtain legal advice however he was not in a position to pay for legal advice.  The applicant sought to proceed as a self-represented litigant.

25. The applicant has not identified any material error of fact or law in the decision of the Tribunal.  Having reviewed the reasons of the Tribunal, no material error of fact or law is identifiable.  The statutory provisions of the Conveyancers Act indicate that a claim on the indemnity fund may be made by a person who has suffered a pecuniary loss because of a fiduciary default.[34]  Fiduciary default is defined to mean a defalcation, misappropriation or misapplication of trust money.[35]  Trust money is defined in the Conveyancers Act.[36]  The applicant accepts that his claim did not involve trust money. 

    [34]   Conveyancers Act 1994 (SA) s 31.

    [35]   Conveyancers Act 1994 (SA) s 14(1).

    [36]   Conveyancers Act 1994 (SA) s 14(1).

26. I find that on the evidence before me, there is no claim on the indemnity fund which relates to trust money as defined in the Conveyancers Act. I find on the evidence before me that the applicant is not a person who has suffered a pecuniary loss as a result of a fiduciary default within the meaning of s 32(1) of the Conveyancers Act.  As indicated above, the applicant has not identified error in the procedure of the Tribunal or the process of reasoning adopted by the learned Senior Member.  There was no identified error in the rejection of the claim on the indemnity fund.

27. As I have indicated, I find on the evidence before me there is no claim on the indemnity fund which relates to trust money as defined in the Conveyancers Act.  It follows that the appeal is not reasonably arguable, and the subject matter is not of sufficient substance to justify consideration.  It is not in the interests of justice to grant permission to appeal.

    Conclusion and orders

    1.The application for leave to appeal is refused. 

    2.The application for the summonsing of witnesses does not fall to be determined by virtue of the application for leave to appeal having been refused.

    3.I will hear from the parties as to any further orders.