Express Clearances Pty Ltd v Breakfast Point Realty Pty Ltd [2022] NSWCATAP 39

Express Clearances Pty Ltd v Breakfast Point Realty Pty Ltd [2022] NSWCATAP 39

The respondent breached both clause 6(ii) of the management agency agreement and its statutory guarantee to provide services with due care and skill by failing to refer to the principal for instructions before changing established lease terms, resulting in potential financial detriment to the principal. The Tribunal's decision was set aside due to failure to consider this breach and inadequacy of reasons regarding best practice evidence.

Jurisdiction
Australia
Judgment Date
15 February 2022
Procedural Posture
Appeal / Appeal Panel Determination; Remittal Ordered
Outcome
Appeal upheld; matter remitted to Tribunal for determination of compensation.
Legal Topics
['real Estate Management' 'landlord and Tenant' 'agency Agreements' 'due Care and Skill in Supply of Services' 'break Lease Compensation']
['consumer Law' 'property Law' 'agency Law'] ['real Estate Management' 'landlord and Tenant' 'agency Agreements' 'due Care and Skill in Supply of Services' 'break Lease Compensation']

Case Brief

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Procedural Posture

Appeal / Appeal Panel Determination; Remittal Ordered

Legal Issues

  1. 1 ['Whether the respondent breached the management agency agreement by failing to refer to the principal for instructions regarding the lease terms' 'Whether the respondent breached its obligation to provide services with due care and skill under s 60 of the Australian Consumer Law (NSW)']

Ratio Decidendi

The respondent breached both clause 6(ii) of the management agency agreement and its statutory guarantee to provide services with due care and skill by failing to refer to the principal for instructions before changing established lease terms, resulting in potential financial detriment to the principal. The Tribunal's decision was set aside due to failure to consider this breach and inadequacy of reasons regarding best practice evidence.

Court Disposition

Appeal upheld; matter remitted to Tribunal for determination of compensation.

Orders

  • ['Appeal upheld.' 'The proceedings are remitted to the Consumer & Commercial Division of the Tribunal for hearing before the same Member for the purposes of determining whether the Appellant is entitled to compensation (and if so in what amount) in light of the finding that the Respondent did not provide its...