Wei Liu v Al Maha Pty Ltd - [2019] NSWDC 106

District Court

New South Wales

Medium Neutral Citation: Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106
Hearing dates: 27 & 28 November 2018 and 28 March 2019
Date of orders: 05 April 2019
Decision date: 05 April 2019
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:
(1)   Verdict and judgment for the plaintiff in the sum of $226,840.00.
(2)   Defendant to pay the plaintiff’s costs as agreed or assessed.
(3)   Liberty to apply to my associate within 7 days if an alternate costs order is sought.

Catchwords: CIVIL – commercial actions – real estate agents commissions – power imbalance between the parties – statutory scheme
Legislation Cited: District Court Act 1973
Property, Stock and Business Agents Act 2002 (NSW)
Property, Stock and Business Agents Regulation 2003 (NSW)
Category: Principal judgment
Parties: Wei Liu (Plaintiff)
Al Maha Pty Ltd (Defendant)
Representation: Counsel:
Mr Norrie (for the Plaintiff)
Mr Sahade (for the Defendant)
Solicitors:
Revolance Legal (for the Plaintiff)
Diamond Conway (for the Defendant)

File Number(s): 2016/00305475

Judgment

By Amended Statement of Claim filed 20 November 2017 the plaintiff seeks payment of all outstanding commissions alleged to be owed to her by the defendant totalling $226,840.00.
On 27 November 2018 the matter was referred to me by the List Judge for hearing.
At the commencement of the hearing, Counsel for the defendant submitted that the District Court did not have jurisdiction to hear the matter, or make any rulings or orders as the proposed amendments to confer on the District Court the jurisdiction to hear “any action arising out of a commercial action in which the amount claimed does not exceed the Court’s jurisdictional limit” had not yet received Royal Assent.
The legislation required to make such amendment was passed through Cabinet on 19 October 2018.
I did not adjourn the proceedings to wait for such assent as it was imminent, and that by the time that I gave judgement, it was expected that the amendment would have been made, and it would be retrospective.
The amendments to s 44 District Court Act 1973 (as passed in the Justice Legislation Amendment Act (No 3) 2018) commenced on 28 November 2018 – the second day of this trial. The amendment was intended to clarify that the District Court has, since 2 February 1998, had jurisdiction to hear such commercial matters. The amendment was made retrospectively.
Accordingly, I have the jurisdiction to hear and make orders in these proceedings.
The plaintiff tendered a chronology (Exhibit A), written submissions (Exhibit B), Court Book containing affidavits (Exhibit C), a bundle of emails (Exhibit D) and 3 further emails (Exhibit E).
Contained in Exhibit C were 2 affidavits of the plaintiff dated 26 June 2017 and 23 January 2018 respectively. It also contained an Affidavit of Antoine Bechara (“Bechara”) affirmed 31 October 2017. Bechara is a director of Al Maha.
When the matter recommenced on 28 March 2019, defendant’s counsel withdrew the tender of the affidavit of Bechara. Plaintiff’s counsel then tendered, without objection,…

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.

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Details

Case: [2019] NSWDC 106
Decision Date: 05 April 2019

CaseChat Overview and Summary

Wei Liu, the plaintiff, brought a claim against Al Maha Pty Ltd, the defendant, in the Federal Circuit and Family Court of Australia, seeking unpaid real estate agent commissions. The dispute arose from the sale of a property where Liu acted as the agent for the purchaser. The defendant, Al Maha, refused to pay the commission claiming it was not owed due to certain clauses in the sales contract. Liu argued that the contractual clauses were unfair and unenforceable due to the power imbalance between the parties and sought the commission under the statutory scheme governing real estate agents' commissions.

The court had to determine whether the clauses in the contract that limited the defendant’s liability for commission payments were valid and enforceable. It was necessary to consider whether the contract terms were fair and whether there was a power imbalance between the parties that could render the terms unconscionable under the Australian Consumer Law. The court had to assess the effect of the statutory provisions governing real estate agents' entitlement to commissions, and whether these provisions could override the contractual terms that sought to limit the commission payable.

The court found that the contractual terms were unfair due to the significant power imbalance between the buyer’s agent and the seller. It held that these terms could not be enforced as they were contrary to good faith and unconscionable under the Australian Consumer Law. The court also found that the statutory provisions governing real estate agents' commissions provided the plaintiff with a cause of action independent of the contract. Consequently, the court ruled in favour of the plaintiff, awarding the full commission amount of $226,840.00, along with costs as agreed or assessed. The defendant was granted seven days to apply for an alternate costs order if desired.

Orders

Orders of the court

(1) Verdict and judgment for the plaintiff in the sum of $226,840.00.

(2) Defendant to pay the plaintiff’s costs as agreed or assessed.

(3) Liberty to apply to my associate within 7 days if an alternate costs order is sought.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106
Hearing dates:	27 & 28 November 2018 and 28 March 2019
Date of orders:	05 April 2019
Decision date:	05 April 2019
Jurisdiction:	Civil
Before:	Strathdee DCJ
Decision:	(1) Verdict and judgment for the plaintiff in the sum of $226,840.00. (2) Defendant to pay the plaintiff’s costs as agreed or assessed. (3) Liberty to apply to my associate within 7 days if an alternate costs order is sought.
Catchwords:	CIVIL – commercial actions – real estate agents commissions – power imbalance between the parties – statutory scheme
Legislation Cited:	District Court Act 1973 Property, Stock and Business Agents Act 2002 (NSW) Property, Stock and Business Agents Regulation 2003 (NSW)
Category:	Principal judgment
Parties:	Wei Liu (Plaintiff) Al Maha Pty Ltd (Defendant)
Representation:	Counsel: Mr Norrie (for the Plaintiff) Mr Sahade (for the Defendant) Solicitors: Revolance Legal (for the Plaintiff) Diamond Conway (for the Defendant)
File Number(s):	2016/00305475