Tribunal considers allegations of misleading and deceptive conduct

In the recent decision of the New South Wales Civil and Administrative Tribunal of Nasser v Sima Real Estate Pty Ltd ATF Asset Realty Agents; Sima Real Estate Pty Ltd ATF Asset Realty Agents v Nasser [2025] NSWCATCD 75, the Tribunal considered the legitimacy of two different exclusive agency agreements and whether an agent had engaged in misleading and deceptive conduct in relation to the sale of a residential property.

Background

On 16 May 2024, Ms Margaret Nasser engaged Sima Real Estate Pty Ltd (the agent) to sell a residential property in East Lindfield (the property) at auction on 23 June 2024 in accordance with an Exclusive Agency Agreement (the agreement). The agreement noted an estimated selling price for the property in the range of $5.5 million to $6 million.

The property did not proceed to auction, and the agreement was extended for three months before being terminated in late November 2024 following a dispute between Ms Nasser and the agent regarding information published online regarding the value of the property.

Ms Nasser believed that the property was worth more than the price guide provided by the agent and alleged that the agent was advertising the property for less than $5 million. Ms Nasser held the agent responsible for what she believed were incorrect estimated values attributed to the property on Realestate.com.au, Domain.com.au, and other websites.

Ms Nasser subsequently filed an application in the Tribunal seeking damages in the amount of $5,000 for breach of contract, false and misleading representation and professional negligence. Ms Nasser alleged that due to the agent’s conduct, she had unnecessarily incurred the costs of obtaining a building certificate and other consequential expenses.

In addition, Ms Nasser asserted that the agent engaged in the following conduct:

• Underquoted the value of the property to make a quick sale for the agent’s benefit and commission;
• Engaged in misleading or deceptive conduct by claiming costs or expenses that were not part of the agreement;
• Falsely claimed that the agent could obtain a sale price of $6.5 million for the property;
• Falsely claimed that the agent had buyers looking for properties of between $8 million and $15 million;
• Deceived her into signing the agreement by making the above false claims and misrepresentations; and
• Advertised the property for sale for less than $5 million.

The agent denied engaging in any misleading and deceptive conduct. In return, the agent filed an application against Ms Nasser seeking an amount of $4,098 for advertising and marketing expenses incurred.

Ms Nasser maintained that the agreement did not require her to pay the agent for any marketing expenses. However, the agent alleged that Ms Nasser had altered the agreement by replacing two pages (that detailed the marketing expenses) from the original agreement that had been provided by the agent and signed by both parties.

Issues to be considered

The main issues for the Tribunal to consider were:

1. Which version of the agreement was the true and correct version;
2. Whether Ms Nasser was liable to pay the agent for marketing expenses of $4,098;
3. Whether the agent had engaged in misleading or deceptive conduct, breach of contract and/or negligence; and
4. Whether the agent was liable to pay Ms Nasser the amount claimed of $5,000.

Decision

The Tribunal noted that there were two conflicting versions of the agreement. The version of the agreement presented by the agent listed marketing expenses payable to the agent in the amount of $4,098. The version of the agreement presented by Ms Nasser provided a handwritten note stating that the amount for which the agent was to be reimbursed for marketing expenses as “nil”.

The agent alleged Ms Nasser tampered with the agreement by replacing the relevant pages detailing the reimbursable marketing expenses with that of another agreement.

In determining which version of the agreement was true and correct, the Tribunal noted that the main difference between the two documents were on pages 3 and 4 of each agreement. The Tribunal noted that on pages 3 and 4 of Ms Nasser’s version of the agreement were “identification codes” from an earlier version of the document, whereas the remainder of Ms Nasser’s agreement and the agent’s complete agreement, noted a newer version of the document.

Furthermore, the agent’s version of the agreement included typed marketing expenses, while Ms Nasser’s version had a handwritten entry stating “nil” in relation to marketing expenses.

Ms Nasser's evidence consisted of a version of the agreement, which she contended was the correct version, and a chronology that was sent to the Tribunal on the day of the hearing, which attempted to articulate the history of the matter from her perspective. However, the Tribunal gave no weight to Ms Nasser’s chronology in circumstances where it was neither a contemporaneous document, a witness statement, nor an affidavit tested by cross-examination.

The Tribunal found that the only plausible explanation for an early version of pages 3 and 4 of the agreement being in Ms Nasser’s agreement was that after receiving the agent’s invoice for marketing expenses, Ms Nasser deliberately substituted pages 3 and 4 of the agreement to attempt to avoid liability to pay the marketing expenses.

The Tribunal also commented that it was unlikely that an agent would undertake a marketing campaign without being remunerated for marketing expenses.

Ms Nasser denied replacing pages 3 and 4 in her version of the agreement and claimed that it was the handwriting of the agent’s employee on page 3 of the agreement. However, the Tribunal rejected Ms Nasser’s explanation and held that the agent’s version was the true and correct agreement.

The Tribunal then considered whether the agent had engaged in misleading and deceptive conduct.

In circumstances where the Tribunal found that the agent’s agreement was the true and correct agreement, the Tribunal subsequently held that there was no misleading or deceptive conduct on the part of the agent in claiming the marketing expenses.

The Tribunal noted that the agreement included an estimated selling price of $5.5 million to $6 million and therefore rejected the allegation that the agent falsely claimed that it could obtain a sale price of $6.5 million in circumstances where there was no other evidence to support this allegation.

In relation to the allegation that the agent had underquoted the value of the property, the Tribunal noted that the agent’s evidence included more than 30 emails to prospective purchasers providing a price guide for the property of $5.5 million. Therefore, the Tribunal found that there was no evidence to support this allegation.

The Tribunal also rejected Ms Nasser’s allegation that the agent claimed to have buyers looking for properties between $8 million and $15 million in circumstances where there was no corroborative evidence adduced by Ms Nasser.

The Tribunal observed Ms Nasser to be “a very strong-willed person, capable of expressing her views and someone who does not strike me as easily influenced or mislead” and ultimately found that she had failed to prove that she was deceived into signing the agreement.

Based upon the evidence available, the Tribunal also rejected Ms Nasser’s allegation that the agent advertised the property for less than $5 million. Text messages demonstrated that third-party websites displayed valuation data under $5 million, however, the agent had no control over this.

Ms Nasser did not provide any documents to support her claim in relation to alleged expenses incurred due to “misleading advice” from the agent, in circumstances where she claimed she paid cash and was not able to provide invoices. The Tribunal was sceptical that cash payments were made to the local council, building surveyor, and private certifier, and even more doubtful that they would refuse to provide her with any documentary evidence, as Ms Nasser claimed.

Ms Nasser’s allegations of misleading and deceptive conduct, breach of contract, and negligence were all rejected by the Tribunal.

Accordingly, the Tribunal dismissed Ms Nasser’s claim against the agent and ordered that Ms Nasser pay the agent marketing expenses an amount of $3,725.45, which included the amount claimed less GST.

Conclusion

This decision demonstrates the importance of ensuring that agents keep thorough records and contemporaneous notes of their dealings with their seller clients in the event that allegations of undue influence or misleading and deceptive conduct are made against them.

Read more: Thriving in Queensland's new Seller Disclosure Regime: How top agents are setting the standard.

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