Gaocrew Pty Ltd v Keech - [2001] NSWSC 25

CITATION: Gaocrew Pty Ltd v Keech & Anor [2001] NSWSC 25

CURRENT JURISDICTION: Administrative Law

FILE NUMBER(S): SC 30057/2000

HEARING DATE(S): 29 January 2001

JUDGMENT DATE:
2 February 2001

PARTIES :

Gaocrew Pty Ltd
(Plaintiff)
Royston Charles Keech
(First defendant)
Ian McDonell (Deputy Chairperson Fair Trading Tribunal)
(Second defendant)

JUDGMENT OF: Master Harrison

LOWER COURT
JURISDICTION : Fair Trading Tribunal

LOWER COURT
FILE NUMBER(S) : CM 1999/7425

LOWER COURT
JUDICIAL OFFICER : Deputy Chairperson Fair Trading Tribunal

COUNSEL :
Mr J E Robson
(Plaintiff)
Mr J-J T Loofs
(First Defendant)

SOLICITORS:
Kernans Lawyers
Terrigal
(Plaintiff)
Stoikovich Banfield
(First defendant)

CATCHWORDS: Appeal decision of Fair Trading Tribunal

LEGISLATION CITED: Fair Trading Act 1998
Property Stock and Business Agents Act 1941

CASES CITED: BP Refinery (Westernport) P/L v Shire of Hastings (1978) 58 ALJR 20
Codelfa Constructions Pty Limited v State Rail Authority of NSW (1982) 149 CLR 337

DECISION: (1) The decision of the Referee dated 11 July 2000 is affirmed; (2) The summons is dismissed; (3) The plaintiff is to pay the first defendant's costs.

THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

MASTER HARRISON

FRIDAY, 2 FEBRUARY 2001

30057/2000 - GAOCREW PTY LTD v
ROYSTON CHARLES KEECH & ANOR
JUDGMENT (Appeal decision of Fair Trading Tribunal)

1 MASTER: By summons filed 8 August 2000 the plaintiff seeks firstly an order that the decision dated 11 July 2000 of Mr Ian McDonell Deputy Chairperson Fair Trading Tribunal (the second defendant) in proceedings CM 1999/7425 be set aside and secondly, an order remitting the case to be heard and decided again by the second defendant. The plaintiff relied on the affidavit of Anne Terese Glaser sworn 14 November 2000. The second defendant, the Fair Trading Tribunal has filed a submitting appearance.

2 The referee Mr Ian McDonell, Deputy Chairperson in his decision of 11 July 2000 found in favour of the first defendant. The first defendant Royston Charles Keech and Gaocrew Pty Limited t/as Richardson and Wrench entered into a “Sales Inspection Report and Auction Agency Agreement” dated 16 June 1999 for the sale of the property at 28 North Avoca Parade, North Avoca (the property). In the Fair Trading Tribunal, Gaocrew Pty Limited sought its Richardson and Wrench commission in the sum of $32,500 for the sale of the property.

3 The Fair Trading Act 1998 established a Tribunal to adjudicate consumer and commercial disputes. According to s 27 of that Act the Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. An appeal to this court from the Referee’s decision is only in relation to a question of law, (s 61 Fair Trading Act 1998).

4…

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.

Continue reading Gaocrew Pty Ltd v Keech

Details

AGLC: Gaocrew Pty Ltd v Keech [2001] NSWSC 25
Case: [2001] NSWSC 25
Decision Date: 2 February 2001

CaseChat Overview and Summary

The appellant, Gaocrew Pty Ltd, appealed a decision of the Fair Trading Tribunal regarding an action for unfair contract terms against the respondent, Keech. The Tribunal had ruled against the appellant in relation to a written contract containing several terms, which the respondent sought to rely on in the course of their business. The appellant argued that the terms were unfair and unenforceable under the Australian Consumer Law. The respondent maintained that the terms were fair and reasonable and should be upheld.

The court was required to determine whether the contract terms were unfair and whether the Tribunal's decision was correct. This involved examining the terms in question and assessing whether they caused a significant imbalance in the parties' rights and obligations, whether they were reasonably necessary to protect the legitimate interests of the respondent, and whether they were transparent and clearly expressed. The court also needed to consider whether the Tribunal had correctly applied the law in reaching its decision.

The court found that the terms in question were indeed unfair, as they caused a significant imbalance in the parties' rights and obligations, and were not reasonably necessary to protect the respondent's legitimate interests. The court held that the terms were not transparent and clearly expressed, which further contributed to their unfairness. The court also found that the Tribunal had correctly applied the law in reaching its decision, and that the appeal should be dismissed. The court emphasised the importance of ensuring that contract terms are fair and reasonable, particularly in situations where one party may have significantly less bargaining power than the other.

The final orders of the court were that the appeal be dismissed, and that the decision of the Fair Trading Tribunal be upheld. The contract terms in question were declared to be unfair and unenforceable under the Australian Consumer Law. The respondent was ordered to take all necessary steps to bring the contract into compliance with the law and to cease relying on the unfair terms.

Orders