Al Maha Pty Ltd v Liu [2020] NSWCA 108

Al Maha Pty Ltd v Liu [2020] NSWCA 108

Although the agency agreement failed to comply with s 55, the respondent satisfied the gateways for relief under s 55A. The failure to serve a signed copy within 48 hours was occasioned by inadvertence, given the respondent did not appreciate the legal requirement and the agreement had been drafted and supplied by the appellant. The regulatory non-compliances were minor in all the circumstances, including that the appellant was a sophisticated property developer, the failures resulted from the appellant's drafting, no loss or prejudice was shown, and the commission was not shown to be unfair or unreasonable. The discretion under s 55A(1) was therefore properly exercised in favour of the...

Jurisdiction
Australia
Judgment Date
11 June 2020
Procedural Posture
Civil Appeal Concerning Recovery of Real Estate Agent Commission Under an Agency Agreement / Appeal From District Court of New South Wales Judgment; Appeal Dismissed
Outcome
Appeal dismissed with costs.
Legal Topics
['agency Agreement' 'entitlement to Commission' 'non Compliance With Statutory Requirements' 'relief From Disentitlement to Commission' 'inadvertence' 'minor Failure' 'exercise of Discretion']
['contract' 'real Estate Agency' 'statutory Interpretation' 'civil Procedure'] ['agency Agreement' 'entitlement to Commission' 'non Compliance With Statutory Requirements' 'relief From Disentitlement to Commission' 'inadvertence' 'minor Failure' 'exercise of Discretion']

Case Brief

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Procedural Posture

Civil Appeal Concerning Recovery of Real Estate Agent Commission Under an Agency Agreement / Appeal From District Court of New South Wales Judgment; Appeal Dismissed

Legal Issues

  1. 1 ['Whether, in light of admitted non-compliance with applicable requirements of the Property, Stock and Business Agents Regulation 2003 (NSW), the respondent satisfied the preconditions in s 55A(3) of the Property, Stock and Business Agents Act 2002 (NSW).' 'Whether the appellant established that s 55(1)(c) had not been complied with because a signed copy of the agency agreement was not served within 48 hours, and if so whether the respondent could rely on the failure being occasioned by inadvertence under s 55A(2).' 'Whether, if the preconditions in s 55A(2) and s 55A(3) were satisfied, the Court should exercise its discretion under s 55A(1) to permit recovery of commission.']

Ratio Decidendi

Although the agency agreement failed to comply with s 55, the respondent satisfied the gateways for relief under s 55A. The failure to serve a signed copy within 48 hours was occasioned by inadvertence, given the respondent did not appreciate the legal requirement and the agreement had been drafted and supplied by the appellant. The regulatory non-compliances were minor in all the circumstances, including that the appellant was a sophisticated property developer, the failures resulted from the appellant's drafting, no loss or prejudice was shown, and the commission was not shown to be unfair or unreasonable. The discretion under s 55A(1) was therefore properly exercised in favour of the...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']