Newham Business Brokers Pty Ltd v Jodi Miller Pty Ltd as trustee for the Miller Family Trust

The dispute between Newham Business Brokers Pty Ltd and Jodi Miller Pty Ltd as trustee for the Miller Family Trust was heard by the NSW Civil and Administrative Tribunal. The applicant, Newham Business Brokers, sought a declaration that certain clauses in the Exclusive Agency Agreement with the respondent, Jodi Miller Pty Ltd, were invalid due to contravention of section 55 of the Property, Stock and Business Agents Act 2002 (NSW). Specifically, the applicant argued that clauses 8.3 and 9.1 of the Agreement were unenforceable as they required payment of a fee regardless of whether a sale was successfully concluded.

The Tribunal had to determine whether the clauses in question contravened section 55 of the Act, which prohibits the imposition of fees in respect of unsuccessful sales. The respondent argued that the clauses were valid and enforceable, and that they did not contravene the Act as they were not tied to a specific sale but rather to the services provided by the broker. The central issue was the interpretation of section 55 and whether the clauses constituted a fee for unsuccessful sales.

The Tribunal concluded that clauses 8.3 and 9.1 were not in breach of section 55. It found that the fees were not contingent upon the outcome of a specific sale but rather on the services provided by the broker. The Tribunal noted that the fees were for services rendered, including the preparation of marketing materials, the listing of the property, and ongoing management, which were not tied to the outcome of any specific sale. Consequently, the Tribunal held that the clauses were valid and enforceable under the Act. The matter was listed for further directions to be determined by the Registrar.