Mary Anne Bernadette And Joseph Michael Dalli V Bos Holdings Pty Ltd [2018] NSWCATCD 15

Mary Anne Bernadette And Joseph Michael Dalli V Bos Holdings Pty Ltd [2018] NSWCATCD 15

The omission of the estimated dollar amount of commission and fees from clause 5(v) was a minor failure because the 3.5% commission was stated in the agreement and the applicants were orally told that the commission would be about $90,000, so no loss was occasioned by the omission and it would be unjust to deny the respondent commission for achieving the sale. On review, the 3.5% commission was reasonable for the respondent's specialist boutique acreage services and the sale achieved above reserve, but the respondent failed to prove payment or liability for the additional $6,100 in third party fees, requiring a refund of that amount.

Jurisdiction
Australia
Judgment Date
09 May 2018
Procedural Posture
Consumer Claim for Review of Licensee Commission and Fees Under the Property Stock and Business Agents Act 2002 / Principal Judgment After Hearing
Outcome
Application allowed in part; respondent entitled to 3.5% commission but required to refund $6,100 in fees.
Legal Topics
['review of Real Estate Agent Commission and Fees' 'agency Agreement Compliance' 'relief From Forfeiture of Commission' 'residential Property Agency Remuneration' 'proof of Disbursements']
['consumer Law' 'property Agents' 'administrative and Tribunal Procedure'] ['review of Real Estate Agent Commission and Fees' 'agency Agreement Compliance' 'relief From Forfeiture of Commission' 'residential Property Agency Remuneration' 'proof of Disbursements']

Case Brief

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Procedural Posture

Consumer Claim for Review of Licensee Commission and Fees Under the Property Stock and Business Agents Act 2002 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the agency agreement failed to comply with regulation 9 of Schedule 7 of the Property Stock and Business Agents Regulations 2002 by omitting the estimated dollar amount of commission at clause 5(v).' 'Whether any non-compliance disentitled the respondent from commission and fees, or whether relief from forfeiture should be granted under section 55A of the Property Stock and Business Agents Act 2002.' 'Whether the agreed commission of 3.5% should be reviewed under section 36 of the Property Stock and Business Agents Act 2002.' 'Whether the respondent proved entitlement to additional fees or disbursements of $6,100.']

Ratio Decidendi

The omission of the estimated dollar amount of commission and fees from clause 5(v) was a minor failure because the 3.5% commission was stated in the agreement and the applicants were orally told that the commission would be about $90,000, so no loss was occasioned by the omission and it would be unjust to deny the respondent commission for achieving the sale. On review, the 3.5% commission was reasonable for the respondent's specialist boutique acreage services and the sale achieved above reserve, but the respondent failed to prove payment or liability for the additional $6,100 in third party fees, requiring a refund of that amount.

Court Disposition

Application allowed in part; respondent entitled to 3.5% commission but required to refund $6,100 in fees.

Orders

  • ['On or before 21 May 2018, the respondent is to pay to the applicants the sum of $6,100 by way of refund for overpayment of fees.' "The applicants' written submissions on costs are to be provided to the Tribunal and the other party on or before 11 May 2018." "The respondent's written submissions on costs are to be...