Melinda Seeto Realty Pty Ltd t/as Seeto Real Estate v Pragna Pty Ltd atf the Pragnya Superannuation Fund

[2022] NSWCATCD 193

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Melinda Seeto Realty Pty Ltd t/as Seeto Real Estate v Pragna Pty Ltd atf the Pragnya Superannuation Fund [2022] NSWCATCD 193

Hearing dates:

29 August 2022

Date of orders:

10 October 2022

Decision date:

10 October 2022

Jurisdiction:

Consumer and Commercial Division

Before:

G. Bassett, General Member

Decision:

(1) The application is dismissed because the Tribunal has no jurisdiction to determine the application.

Catchwords:

CONSUMER LAW — Jurisdiction — NSW Civil and Administrative Tribunal Consumer and Commercial Division — meaning of “consumer”

Legislation Cited:

Fair Trading Act, part 6A, section 79E

Property Stock Agents Act, section 36

Category:

Principal judgment

Parties:

Applicant: Melinda Seeto Realty Pty Ltd trading as Seeto Real Estate

Respondent: Pragna Pty Ltd as trustee for The Pragnya Superannuation Fund

Representation:

Applicant: Melinda Seeto

Respondent: Salini Ganesan

File Number(s):

COM 22/15562

Publication restriction:

Nil

REASONS FOR DECISION

1. On 8 April 2022 the applicant real estate agency (“Seeto”) applied for an order under section 36 of the Property Stock Agents Act (“the Act”) for the Tribunal to determine the reasonable fees payable to a licensee under a selling agency agreement. It further sought an order the agency was entitled to fees specified in a statement of claim or an itemised account.

2. Notably, in its written reasons for the application Seeto indicated that on 10 January 2022 it entered into a selling agency agreement with the respondent vendor of a property. Seeto sought fees of $3,850.00 for online and print advertising and styling costs of $1,900.00.

3. Through its representative, Seeto gave sworn evidence no statement of claim was served by it on the respondent. It further conceded the agency was the supplier of services under the selling agency agreement. It relied on an itemised account was serve on the respondent.

4. Prior to hearing the matter had been before the Tribunal on a number of occasions. The issue of whether Seeto as supplier of the services was entitled to bring this claim was not raised at those hearings.

5. Section 36 of the Act is as follows:

36   Review of commission and fees

(1)  An action or other proceedings cannot be commenced by a licensee for the recovery of remuneration or any sum as reimbursement for expenses until the expiration of 28 days after a statement of claim has been served personally or by post on the person to be charged with the remuneration or expenses.

(2)  The statement of claim must be in writing, set out the amount claimed and contain details of the services performed by the licensee in respect of which the remuneration or expenses are claimed.

(3)  If money has been paid to or is or has been retained by a licensee (out of money received by or paid to the licensee) in respect of any transaction by or with the licensee as a licensee and has been so paid or retained as remuneration or as reimbursement for expenses in connection with the transaction, the person paying the money or the person who would be entitled to the money had the money not been retained, may require the licensee to furnish the person with an itemised account of the transaction in accordance with the regulations.

(3A)  A requirement by a person under subsection (3) must be in writing.

(4) A person who is served with a statement of claim under this section or is provided with an itemised account of a transaction as provided by this section may apply to the Tribunal for the determination of a consumer claim within the meaning of Part 6A of the Fair Trading Act 1987 in relation to—

(a)  the entitlement of the licensee to the whole or any part of the amount specified in the statement of claim or the itemised account, or

(b)  whether the whole or any part of the amount is reasonable,

or both.

(5) For the purpose of the application of Part 6A of the Fair Trading Act 1987 to that person, a reference in that Part to a consumer is taken to include a reference to that person.

(6)  The Tribunal has jurisdiction to hear and determine any such consumer claim despite—

(a)  the terms or conditions of any agreement or contract entered into between the licensee and the applicant, and

(b)  the amount being more or less than the maximum amount (if any) of remuneration to which a licensee is entitled under this Act.

(7) This section does not limit Part 6A of the Fair Trading Act 1987.

(8)  In this section—

expenses means expenses or charges incurred in connection with services performed by a licensee in his or her capacity as a licensee.

remuneration means remuneration by way of commission, fee, gain or reward for services performed by a licensee in his or her capacity as a licensee.

6. Section 36(4) limits the capacity to bring a claim to the Tribunal to a person who is served with a statement of claim or is provided with an itemised account of a transaction. That person, in this case being the respondent vendor, may apply to the Tribunal for the determination of a consumer claim within the meaning of Part 6A of the Fair Trading Act 1987 (“FTA”). Part 6A of the FTA grants jurisdiction to the Tribunal for consumer claims. Under section 79E of the FTA a "consumer claim" means a claim by a consumer for a remedy, that arises from a supply of goods or services by a supplier to the consumer (whether or not under a contract). In this case Seeto supplied [Tribunal emphasis] services under a contract to the consumer vendor respondent.

7. Seeto’s representative was taken to section 36(4) of the Act and asked for comment, particularly as to how Seeto might be construed as a consumer when it supplied the services. She said words to the effects “we just sent an invoice and asked to be paid”. It was again admitted Seeto was the supplier of services.

8. A supplier of services cannot bring a claim for a debt before the Tribunal unless the consumer has initiated the action. In this case it was Seeto who initiated as supplier. The Tribunal finds that as the supplier of services Seeto is not a consumer and it does not have jurisdiction to hear this matter.

Orders Made

9. The Tribunal makes the following order:

1. The application is dismissed because the Tribunal has no jurisdiction to determine the application.

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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

Amendments

07 September 2023 - Formatting amendments.

Decision last updated: 07 September 2023