Sirimanne v Bradfield and Pritchard Real Estate Consultants Pty Ltd

[2023] NSWCATCD 131

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Sirimanne v Bradfield and Pritchard Real Estate Consultants Pty Ltd [2023] NSWCATCD 131

Hearing dates:

11 July 2023

Date of orders:

19 September 2023 [amended 20 November 2023]

Decision date:

19 September 2023

Jurisdiction:

Consumer and Commercial Division

Before:

C Campbell, General Member

Decision:

Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013, orders published on 19 September 2023 are amended as follows:

(1) The respondent is to pay the applicant the sum of $550 within 28 days from the date of these orders.

(2) By consent, the respondent is to make available to the applicant a copy of the applicant’s marketing file and photographs from 2014.

(3) The balance of the application is dismissed.

Catchwords:

Managing agency agreement- overcharging- refund management fees

Legislation Cited:

Property and Stock Agents Act 2002

Category:

Principal judgment

Parties:

Applicant: Janitha Sirimanne
Respondent: Bradfield and Pritchard Real Estate Consultants Pty Ltd

Representation:

Counsel: N/A

Solicitors: N/A

File Number(s):

COM 23/15061

Publication restriction:

Nil

REASONS FOR DECISION

1. The applicant alleges the respondent breached the managing agency agreement (“MAA”) and the Property and Stock Agents Act 2002, and as a result she suffered a loss in the sum of $2,676.11.

2. The applicant appeared in person and Mr Dal Busco gave evidence on behalf of the managing agent.

3. The applicant made an application at the hearing to include breaches of the agreement dating back to 2018. The respondent was unaware of the proposed amendment and said that it was not in a position to meet the claim without any notice. The applicant was given an opportunity to either make an application for an adjournment of the application or withdraw the proceedings and file a new application which included the proposed amendments. The applicant elected to withdraw the application to amend, and decided and rely on the application as filed on the 28 March 2023.

4. Both parties filed and served their evidence in accordance with the procedural orders made on the 01 May 2023. The applicant relied on a 216 page bundle of documents. The applicant did not have a copy of the material with her today, however she was able to reference the documents she relied on in relation to the alleged breaches by relying on the respondent’s documents and also by putting copies of some emails which were in her bundle before the tribunal, together with copies of the ingoing and routine inspection reports. I have read the documents in the bundles provided by both parties and have taken them into account in coming to my decision.

5. The parties entered into the MAA on the 15 December 2014. The alleged breaches of the agreement relate to the last tenancy agreement which commenced on the 08.12.21 with the tenant vacating on the 16.12.22. The applicant and her husband moved back into the premises on the 17.12.22.

6. The applicant claims the following

1. $550 for refund of overcharging relating to an attendance at NCAT

2. $395 for a refund of advertising

3. $1,003.11 as refund of 70% of the last months managing agent’s fees

7. At the end of the tenancy the applicant’s last tenant issued proceedings in the Tribunal which were settled by consent on the 08.03.23. The respondent’s managing agent appeared on that day and the applicant and her partner were also present when the consent orders were made for an order for the rental bond and repairs to walls.

8. It is not contested the respondent terminated the MAA on the 10.03.23 without giving the 90 day notice in breach of clause 1 of the agreement.

APPLICANT’S EVIDENCE

NCAT FEES

9. The respondent issued a tax invoice to the respondent in the sum of $917, which related to the preparation for the attendance at NCAT and the appearance on the day in the sum of $917. The applicant sought a breakdown of the charges from the respondent.

10. The response from the respondent’s financial controller’s is before the Tribunal:

The amount of $917 equates to 2 x staff members preparation and attendance to tribunal along with cab fares each way.

11. The hourly rate of $110 is not disputed, as this accords with MAA. The applicant was present at the tribunal, and she claims there was only one staff member in attendance on that day. She also disputes the hours claimed by the respondent for the preparation for the tribunal. In her opinion an appropriate amount is $367 made up as follows:

12. 1 x staff member for three hours for preparation and attendance    $330

13. Cab charge  $37

14. The applicant has paid the invoice and seeks a refund of the $550

REFUND OF ADVERTISING FEES

15. The applicant seeks an order for a refund of advertising fees which were incurred towards the end of the tenancy. Notwithstanding the applicant moving back into the property the day after the tenancy ended, she said they intend to re-let the property sometime later. The respondent complied with those instructions.

16. The applicant retained another agent after the sudden termination by the respondent of the MAA and advertising costs were incurred as a result of the new agency agreement.

REFUND OF 70% OF THE LAST MONTH’S MANAGEMENT FEES

17. The management fees were $1,433.02 per month. The applicant claims a 70% reduction of one month’s management fees in the sum of $1,003.11. The claim is for breach on the grounds the respondent failed to provide services in accordance with the terms of the agreement.

18. The applicant has put before the tribunal a copy of the ingoing condition report dated 08 December 2021, which was the date of the commencement of the tenancy. She points to the fact that some of the photographs attached to that report are dated June 2019, which is some months prior to the commencement of the tenancy. The applicant said it was wrong for the respondent to attach those old photographs. She does not agree with the authenticity of the ingoing report. She expressed her disappointment in the manner in which the respondent conducted itself.

19. The respondent undertook a routine inspection on the 06 May 2021 and she received a copy of that report. She alleges that the respondent had an obligation to undertake more routine inspections of the property, as this was part of the service for which she was being charged.

20. The applicant attended at the property on the day after the tenancy ended, which was the day the applicant was moving back into the property. She said she observed the agent walking around the house taking pictures and writing something, but she did not have the ingoing report with her. This was the reason the agent failed to observe that things were missing.

21. The applicant says there were a number of items taken in error by the tenant’s removalist, including the dryer, washing machine, fob for the security, remote for the blinds. She conceded the dryer was returned the next day but the other items were not returned by the tenant until the 08.01.23. She also conceded the respondent’s manager quickly made an arrangement for delivery of clean linen on the day the applicant moved into to the property.

22. She never received a copy of the outgoing condition report, but conceded that as she moved into the property the day after the tenant vacated she was able to observe for herself the state of the premises at the end of the tenancy.

23. She agreed that she had consented to the orders made in the Tribunal on the 08 March 2023.

24. The applicant said that as a result of the respondent terminating the MAA without giving the 90 day notice period, she was forced to deal with the former tenant. She said he was abusive and difficult to deal with.

25. In the application the applicant sought the return of her original file and photographs dating back to 2014. The respondent agreed to make it available to her for collection from his office the afternoon after the date of the hearing.

LOSS

26. The applicant said that as a result of the breach of the agreement she suffered a loss of $395. I infer this was in addition to the refunds sought in the application and referred to above.

RESPONDENT’S EVIDENCE

NCAT FEES

27. The respondent denied it charged for two people to attend the Tribunal 08.03.23 and relies on a schedule which is tilted Breakdown of Preparation and Attendance Fees Charged. The schedule states that there were in total six hours of preparation work undertaken between 28.02.23 and 07.03.23 in relation to the application which was listed in NCAT on the 08.03.23. On the date of the conciliation and hearing one staff member only attended at the Tribunal for a period of two hours.

28. The respondent relies on Clauses 6 (d) and 12 of the MAA, which permits the respondent to respond to any applications made by tenants in the tribunal. And in accordance with Clause 12 the permitted fee is $110 per hour. Accordingly, there was no breach by the respondent in relation to the charges incurred or the attendance at the Tribunal.

29. Mr Dal Busco said their financial controller just “got it wrong” when she informed that applicant in writing that the charges were for two people to attend at the Tribunal.

ADVERTISING FEES

30. The respondent denies liability for the advertising fees. On the 09 November 2022 the applicant agreed in writing to advertising the premises with an increased rental sum of $6,500 per week and gave her consent to the respondent uploading the property to “…start generating enquiry.” A copy of the email is before the Tribunal. In accordance with this consent the respondent arranged for the advertising campaign and incurred the charges in the sum of $395.

31. The respondent claimed the advertising campaign ran for three months and had ended at the same time as it terminated the MAA on the 10 March 2023.

32. The respondent says the reason for the termination of the MAA was because the advertising campaign had come to an end and the applicants were at that time still living in the premises. Hence by that time there was nothing to manage. Therefore there was no loss to the applicant that flowed form the termination of the MAA.

REFUND OF 70% OF THE LAST MONTH’S MANAGEMENT FEES

33. The respondent denies it is liable to refund 70% of the last month’s management fees. It did not charge anything in excess of the monthly fees or any other item that was not allowed under the MAA.

34. The respondent conceded that there were attached to the ingoing report some photographs taken in June 2019. He said they were included to show the state of the premises at commencement of the previous tenancy. He said they were used to show nothing had changed at the property.

35. He conceded the routine inspection report dated 06 May 2022 was not provided to the applicant. But denied there was any requirement for it to be provided under the MAA.

36. The respondent attended at the property the day after the tenant vacated to undertake the outgoing inspection, but by that time the applicant was moving into the premises. The respondent conceded the former tenant’s removalist had taken the dryer but said after receiving 32 telephone calls from the applicant concerning its whereabouts it was returned to the premises the following day. In the meantime the property manager had delivered a set of clean linen and towels to the applicant for that one night.

37. The applicant failed to demonstrate a loss. There is no evidence the respondent charged anything in excess of the agreed management fees and disbursements in accordance with the terms of the MAA.

DECISION

38. I am satisfied that the MAA did make provision for the respondent to charge $110 per hour for attendance at the Tribunal. There is nothing in the MAA that makes provision for more than one representative to appear in the Tribunal at any time.

39. I am satisfied only one representative from the respondent’s office attended at the Tribunal on the 08 march 2023. It appears the financial controller’s response was incorrect. However, the applicant was not overcharged as the sum charged for the attendance was $220 for the two hour attendance. I am satisfied the bond application was listed in a two hour Group List on the 08 March 2023.

40. The respondent has created a schedule which is purported to be a time sheet, but there is no source documentation provided to demonstrate how this time sheet was created. I agree with the applicant’s submission that the time allowed for preparation in the schedule seems excessive. The applicant says that one hour’s preparation time was appropriate. Having regard to the lack of any source material to substantiate the preparation charges I am persuaded the appropriate amount is for one hour of preparation time, as submitted by the applicant.

41. For these reasons I find the applicant is entitled to a refund for any charges in excess of one representative at the Tribunal for the two hour period plus the cab charges, plus one hour preparation time. The cab charges are $37.00.

42. Accordingly, I find the respondent is to refund the applicant the sum of $550 in relation to the attendance and preparation fees for the agent’s attendance at NCAT on the 08 March 2023.

43. I find the respondent was in breach of the Clause 1 of the MAA when it terminated the agreement without giving the applicant the 90 days notice of its intention to do so. I am not satisfied any loss flowed from that breach. The proceedings in the Tribunal were finalised with consent orders and the applicant was by then residing in the premises. There was by that time no tenancy to manage.

44. I accept the inclusion of earlier photographs in the ingoing report could be thought of as “sloppy work” and showed a lack of attention to detail on the part the respondent. However, I am not satisfied this was a breach of the MAA. There were approximately 390 photographs attached to the report, of which approximately 180 were from the earlier report and the balance were contemporaneous with the report. There is no evidence before the Tribunal that the applicant suffered any loss as a result of the inclusion of the earlier photographs.

45. I accept the applicant was inconvenienced by the tenant’s removalist taking the dryer and the other items referred to by the applicant. However, the respondent was not in attendance on the day the removalist took the items, and nor should it be. The tenant retains a right to exclusive possession up until when the keys are returned to the landlord or the landlord’s agent. The landlord moved in the following day and discovered the missing items. There was no breach by the respondent in relation to the management of the property under the terms of the MAA, in relation to this episode. And the applicant acknowledged this by graciously accepting the offer by the property manager of clean linen and also taking some flowers for her to the office the following day by way of a thank you for the assistance.

46. I am not satisfied the applicant is entitled to a refund of the adverting fees in the sum of $395, as she gave consent to the respondent to proceed and incur that charge in November 2022 when she was interested in re-letting the property at an increased rent. The respondent sought and received the landlord instructions to incur the costs. I am not satisfied this was a breach of the agreement by the respondent.

47. I am not satisfied on the evidence that the respondent was in breach of any other provisions of the MAA, and accordingly there is no loss to the applicant apart from that which I have referred to above.

ORDERS

48. For all of the above reasons I make the following orders:

1. The respondent is to pay the applicant the sum of $550 within 28 days from the date of these orders.

2. By consent, the respondent is to make available to the applicant a copy of the applicant’s marketing file and photographs from 2014.

3. The balance of the application is dismissed.

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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

Decision last updated: 20 November 2023