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

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.
On 12 December 2024, the respondent dismissing a claim made by the applicant against the indemnity fund established under Part 4, Division…

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: [2025] SASC 182
Decision Date: 21 October 2025

CaseChat Overview and Summary

The appeal in El-Behidi v Commissioner for Consumer Affairs concerns the applicant's attempt to seek leave to appeal a decision of the South Australian Civil and Administrative Tribunal (SACAT) which dismissed his claim for compensation under the Conveyancers Act 1994 (SA). The applicant, Mr. El-Behidi, sought compensation from the Commissioner for Consumer Affairs for losses he allegedly incurred due to a failed business sale transaction involving Mr. Alecos Pericleous. The Commissioner opposes the grant of leave to appeal, arguing that the applicant has not demonstrated reasonably arguable grounds for appeal and that no appellable error was identified.

The primary legal issue in this appeal was whether the applicant had established any grounds for leave to appeal the decision of SACAT. This involved determining if the applicant had identified any specific error in the decision-making process of SACAT or in the decision itself. Additionally, the Court needed to consider whether the subject matter of the appeal was of sufficient substance to warrant consideration.

The Court found that the applicant's grounds of appeal did not identify specific error in SACAT's decision. Instead, the applicant made allegations of deceptive conduct and negligence on the part of the conveyancer, which were outside the scope of SACAT's decision. The Court noted that such complaints could form the basis of a civil claim rather than an appeal against the Tribunal's decision. Furthermore, the Court held that the applicant's claim for compensation related to losses not involving trust funds, and thus did not meet the definition of a fiduciary default under the Conveyancers Act. Consequently, the Court concluded that the appeal was not reasonably arguable and that granting leave to appeal would not be in the interests of justice.

The Court refused the application for leave to appeal and dismissed the appeal. The Court did not consider it necessary to determine the summonsing of witnesses as the application for leave to appeal had been refused. Further orders were to be determined based on submissions from the parties.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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 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. 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’). 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]). 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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

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 orders1.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.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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 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). 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. 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. 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. 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. 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).