Jennifer Duke | 29 April 2014

Paul Giezekamp set to appeal after NCAT rules $7,000 commission undisclosed

Paul Giezekamp set to appeal after NCAT rules $7,000 commission undisclosed

In a NSW Civil and Administrative Tribunal (NCAT) decision made this month, Property Secrets' Paul Giezekamp has been ordered to pay $7,000 to a past client due to undisclosed commissions.

NCAT noted that the documents had been amended to include a $7,000 commission after the client had signed.

Giezekamp has filed documents at NCAT to have the decision rescinded, with the potential for an appeal to go before court.

He told Property Observer that he was not able to attend due to illness, and that he did not amend the documents – intending to set the record clear at a rehearing.

"I was surprised that the decision was made so quickly and without the applicant attending the NCAT in person," he said. "I have immediately filed documents in the NCAT for the decision to be rescinded and a proper rehearing of the matter occur."

NCAT notes that the $7,000 payment ordered to be made to the client is a result of "the conduct of the respondent as an agent who received that sum as a commission for introducing the applicant to Cubitt's Classic Home Improvements Pty Ltd (CHI), that sum being not disclosed to the applicant and claimed after the respondent fraudulently altered the relevant agreement after it had been signed."

On 1 March 2011, the client entered into an agreement with Giezekamp, under the business name Property Secrets.

The agreement was for Property Secrets to provide advice, for a fee, support and assistance in locating, buying and improving an investment property in the western Sydney suburb of St Marys.

Under this agreement, the respondent introduced CHI to build a granny flat. When the client signed the agreement, the footer of page three was said to be left blank. However, an invoice dated 1 July, 2011 charged a $7,000 fee, or ‘commission’, to CHI for the property, which was then paid three days later.

According to NCAT documents, on 27 February 2013, Giezekamp then attended the offices of CHI and put a sticker onto the agreement, which stated: "Commission Disclosure - Prescribed form Ian Cubitts Classic Home Improvements (ICCHI) hereby discloses that a $7,000.00 commission payment will be made to Property Secrets or an associated company of Property Secrets for referring your business to ICCHI. This referral commission is from the profits of ICCHI overall & in no way affects the price of your Granny Flat. You the client agree to this commission payment & acknowledge this commission disclosure by initialling the page below and signing the HIA contract in full."

There was no second set of initials here.

In March 2013, Ian Raymond Cubitt of CHI claimed, in a statutory declaration, that employees of Property Secrets had been changing CHI contracts after they had been signed.

As a result, NCAT found that Giezekamp should repay the client the $7,000.

"There is no doubt that the sum of $7,000 was not agreed to [by the client], and that Mr Giezekamp later asserted a right to that payment by fraudulently altering the terms of the Agreement so that it appeared that he or an "associated company" was entitled to that payment," NCAT ruled.

It was also noted that the client should be paid these funds as "more probably than not" the $7,000 commission was built into the price of the works.

Giezekamp had previously challenged the Tribunal's jurisdiction on this matter "as he contends that the proper respondent is a company known as P.S Enterprises Pty Ltd which is in liquidation. However, the application is not brought against that entity but Mr Giezekamp is named as the respondent." This has been a difficulty in the past for others taking Giezekamp to tribunal.

NCAT referred to material that included a photograph of Giezekamp, the words "GRANNY FLAT", a logo, the words "PROPERTY SECRETS" and "Property Investing Made Easy".

As a result, the jurisdictional challenge was rejected by Tribunal, due to the company continuing "carrying on business" as Property Secrets.

Giezekamp explained that should his application to set aside the order, and the matter be re-heard, not be resolved quickly then his intention is to appeal the order so that he does not lose his appeal right, and so he gets the opportunity to put all the evidence before NCAT.

"I did not amend the documents and my procedures are always under review," he said.

"The matter is still before the NCAT and may go before a court on appeal. As such I am advised by my lawyers, and feel bound to accept that advice, that until the matter is finalised, reluctantly I cannot provide you with any other further information other than to say I believe that an order will be made in my favour once all the evidence is before the tribunal or court.”