Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20

Profitability Consulting Pty Ltd v Thorpe [2019] NSWCATAP 20

The Tribunal had jurisdiction to determine the Owners' claims as consumer claims under the Fair Trading Act 1987 (NSW) notwithstanding the appellant's unlicensed status. The Tribunal erred in applying ss36 and 55 of the Property Stock and Business Agents Act 2002 (NSW) to an unlicensed agent, and accordingly, the refunds or disallowance of fees on that basis were set aside and remitted for rehearing. Other awards, such as those for unwarranted deductions and lost rent, were upheld to the extent not involving double counting. No denial of procedural fairness or apprehended bias was established.

Parties
Appellant: Profitability Consulting Pty Ltd; Respondent: Joanne Thorpe; Respondent: Arthur Peterson
Jurisdiction
Australia
Judgment Date
16 January 2019
Procedural Posture
Appeal / Decision on Appeal From Decision of Consumer and Commercial Division, Civil and Administrative Tribunal
Outcome
Appeal allowed in part; orders below varied and proceedings concerning management fees and certain deductions remitted for rehearing.
Legal Topics
Procedural Fairness, Apprehended Bias, Statutory Interpretation, Real Estate Agent Licensing, Consumer Claims, Agency Agreement, Management Fees, Jurisdiction of Tribunal
Administrative Law Consumer Law Contract Law Real Property Law Procedural Fairness Apprehended Bias Statutory Interpretation Real Estate Agent Licensing +4 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 7 Authorities cited 22 Party arguments 2 Amounts and remedies 6
Sign in to unlock

Parties

Profitability Consulting Pty Ltd

Appellant

Joanne Thorpe

Respondent

Arthur Peterson

Respondent

Procedural Posture

Appeal / Decision on Appeal From Decision of Consumer and Commercial Division, Civil and Administrative Tribunal

Legal Issues

  1. 1 Whether refusal to allow legal representation constituted a denial of procedural fairness
  2. 2 Whether there was apprehended bias by the original Tribunal Member
  3. 3 Whether the Tribunal erred in its finding on the content of the parties' contractual arrangement

Ratio Decidendi

The Tribunal had jurisdiction to determine the Owners' claims as consumer claims under the Fair Trading Act 1987 (NSW) notwithstanding the appellant's unlicensed status. The Tribunal erred in applying ss36 and 55 of the Property Stock and Business Agents Act 2002 (NSW) to an unlicensed agent, and accordingly, the refunds or disallowance of fees on that basis were set aside and remitted for rehearing. Other awards, such as those for unwarranted deductions and lost rent, were upheld to the extent not involving double counting. No denial of procedural fairness or apprehended bias was established.

Court Disposition

Appeal allowed in part; orders below varied and proceedings concerning management fees and certain deductions remitted for rehearing.

Orders

  • Extend time for lodgement of the notice of appeal to 21 June 2018.
  • Allow the appeal in part.