State of New South Wales v Loh Min Choo

The State of New South Wales appealed to the Court of Appeal of New South Wales against orders made at first instance concerning claims against the Property Services Compensation Fund. The claims were brought by Ms Loh Min Choo and others (the respondents) against the Fund, which was established under the *Property, Stock and Business Agents Act 2002* (NSW), due to alleged failures by a real estate agent to account for entrusted funds.

The primary legal issues before the Court of Appeal were whether the respondents' claims were made within the statutory time limits, specifically whether they were brought more than two years after the failures to account or more than 12 months after the claimants became aware of such failures. The Court also had to determine the meaning of "failure to account" in this context, including whether overcharging for commission constituted such a failure. Further issues included whether pecuniary loss suffered as a result of a failure to account could be claimed where there had been prior misappropriation of funds, whether compensation to joint owners of funds was limited to a single shared amount of $500,000 under s 175 of the Act, and whether the costs of court proceedings were included within this limitation. Finally, the Court considered the date from which claimants were entitled to interest under s 100 of the *Civil Procedure Act 2005* (NSW).

The Court of Appeal allowed the appeal in part, setting aside the orders made at first instance. The Court reasoned that the interpretation of "failure to account" and the application of the time limits required further consideration. The Court also addressed the limitations on compensation and the entitlement to interest, finding that the initial orders did not correctly reflect the statutory provisions. The Court directed that if the parties could agree on further orders to give effect to its judgment, they should lodge a consent order within seven days. If agreement could not be reached, the parties were to file and serve submissions on the appropriate further orders.