PROPERTY OWNER APPEALS THE DECISION OF THE COURT AWARDING HIS AGENT MONEY JUDGMENT
Funston v CCSS Pty Ltd [2021] VSC 24 (29 January 2021)
This case involves the appellant alleging that the Court erred in interpreting various provisions of the Estate Agents Act of 1980 in awarding the agent-respondent money judgment against him.
Facts:
The appellant, Mr. Funston engaged the respondent, CCSS Pty Ltd, trading as Ascend Real Estate (the Agent) to act as his agent in selling his property.
Mr. Funston decided to auction the property. The Auction Authority indicated an estimated selling price of between $2.1m and $2.2m and a vendor’s reserve price was nominated as ‘TBA’. The Auction Authority provided for marketing expenses of $7,479 payable on the written request of the Agent.
The Agent filed a complaint against Mr. Funston in the Magistrates’ Court of Victoria. The Agent sought payment of $7,479 for reimbursement of outgoings pursuant to the Auction Authority and tendered into evidence an invoice for that amount. His Honour was not satisfied on the balance of probabilities that the Agent had engaged in underquoting, and found in favour of the Agent with regard to the other alleged breaches of the Act.
It is from this order that Mr. Funston brings this appeal.
Mr. Funston defended the claim on the basis that the Agent had engaged in the following contraventions of the Act and was thus precluded by s.50 of the Act from suing for any moneys.
He alleged contraventions to:
(a) S.49A(1)(c)(ii) since the Agent failed to include in the Auction Authority the fee calculated on the dollar amount that would be payable on the reserve price, despite the reserve price being orally communicated to the respondent;
(b) S.48B(1) since Agent sought to obtain from Mr. Funston an amount that exceeded the ‘outgoings’ as defined in s.4 of the Act; and;
(c) S.49A(1)(b) since the Agent did not inform Mr. Funston before entering into the Auction Authority that any money to be paid in respect of outgoings was subject to negotiation.
The respondent argues that:
(a)S.49A(1)(c)(ii) says that the dollar amount referred to is an ‘amount that would be payable on the reserve price or any other relevant amount set out in the engagement or appointment’. It is impermissible to read into this provision reference to an orally communicated reserve price. ‘Orally communicated’ does not appear in s.49A(1)(c)(ii);
(b) S.48B(1) does not contain a prohibition on seeking to obtain payment of unauthorized expenses. The plain object of S.48B(1) is to require agents to disclose any rebate payable to them on expenses and to ensure the amount of the rebate is included in the agent’s determination of the final amount to be paid.; (c) S 49A ought to be read in the context of the Act to require an agent to provide information to a consumer that enables the consumer to understand what the agent is permitted by the Act to recover from the consumer.
Issue: Did the court err in interpreting the Estate Agents Act of 1980?
Law:
- Estate Agents Act 1980 ss 48B, 49A and 50
Analysis:
As to ground (a), the court agrees with the respondent’s submissions. To prefer the appellant’s interpretation would be to strain the ordinary natural meaning of the words used and to import words of primacy and an expectation of a process which does not appear in the section.
As to ground (b), S.48B is directed to the payment and disclosure of rebates and that from a contractual and statutory point of view there was no authorization for the payment of outgoings prior to the entry into the Authority on 14 November 2017.
The learned Magistrate was not in error in his construction of S.48B and its application to the facts in this case.
Lastly, as to ground (c), it appears from the transcript of the evidence and his Honour’s oral decision that he took into account the oral and written documentary evidence before him and formed a view overall that Mr. Funston had been informed of his right to negotiate. It is clear from the transcript that Mr. Funston was aware of his right to negotiate and such negotiations took place.
Conclusion: The appeal is dismissed as no error of law by the learned Magistrate has been established.
