Brett Woods and ORS v Independence Realty Pty Ltd [2014] NSWCATCD 131

Brett Woods and ORS v Independence Realty Pty Ltd [2014] NSWCATCD 131

The applications failed because s 9 of the Property, Stock and Business Agents Act 2002 would bar an unlicensed agent from suing for unpaid fees but did not give the applicants a right to recover fees already paid, and the applicants proved no loss caused by the respondent's unlicensed status or alleged failure to provide information. Individual lot owners could not pursue alleged defaults concerning common property where the Owners Corporation was not a party and the respondent owed no contractual maintenance obligation to them under the Exclusive Management Agency Agreements. Clause 5 of the agreements was not void for uncertainty and, properly construed, the 3% marketing fee was a...

Jurisdiction
Australia
Judgment Date
07 February 2014
Procedural Posture
Consumer Claims Concerning Property Management Fees and Services / Principal Judgment After Concurrent Hearing of Fourteen Applications
Outcome
The application is dismissed.
Legal Topics
['construction of Contract Term' 'recovery of Management Fees Paid to Unlicensed Agent' 'exclusive Management Agency Agreement' 'marketing Fees' 'common Property Maintenance']
['consumer Law' 'property and Real Estate Agents' 'contract Law' 'strata Property'] ['construction of Contract Term' 'recovery of Management Fees Paid to Unlicensed Agent' 'exclusive Management Agency Agreement' 'marketing Fees' 'common Property Maintenance']

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Procedural Posture

Consumer Claims Concerning Property Management Fees and Services / Principal Judgment After Concurrent Hearing of Fourteen Applications

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction to determine the applications as consumer claims rather than under s 36 of the Property, Stock and Business Agents Act 2002.' 'Whether the applicants could recover management fees paid during the period when the respondent was not licensed under s 9 of the Property, Stock and Business Agents Act 2002.' "Whether the respondent's alleged failure to inform the applicants of licence changes caused recoverable loss." 'Whether individual lot owners could pursue claims about alleged failure to maintain common property of the strata scheme.' 'Whether clause 5 of the Exclusive Management Agency Agreement permitted the respondent to charge a 3% marketing fee calculated on rental income from each letting.']

Ratio Decidendi

The applications failed because s 9 of the Property, Stock and Business Agents Act 2002 would bar an unlicensed agent from suing for unpaid fees but did not give the applicants a right to recover fees already paid, and the applicants proved no loss caused by the respondent's unlicensed status or alleged failure to provide information. Individual lot owners could not pursue alleged defaults concerning common property where the Owners Corporation was not a party and the respondent owed no contractual maintenance obligation to them under the Exclusive Management Agency Agreements. Clause 5 of the agreements was not void for uncertainty and, properly construed, the 3% marketing fee was a...

Court Disposition

The application is dismissed.

Orders

  • ['The applications are dismissed.']