Access Australasia Pty Ltd v Griffiths

DISTRICT COURT OF QUEENSLAND

CITATION:

Access Australasia Pty Ltd v Griffiths [2004] QDC 368

PARTIES:

ACCESS AUSTRALASIA PTY LTD
T/A LOCATIONS REALTY

Appellant

and

GAYLIA JOY GRIFFITHS

Respondent

FILE NO:

90/03

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court Southport

DELIVERED ON:

11 June 2004

DELIVERED AT:

Southport

HEARING DATE:

2 June 2004

JUDGE:

Newton DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL FROM ORDER OF MAGISTRATE GRANTING SUMMARY JUDGMENT – Rule 292 Uniform Civil Procedure Rules

Equity – whether equitable set-off operates to impeach respondent’s title  

Cases cited:

CSR Investments Pty Limited v Alcan Northern Territory Alumina Pty Limited [2003] NSW SC 1137
D Galambos & Son Pty Ltd v McIntyre 5ACTR 10
Gibb Australia Pty Limited v Cremor Pty Limited No. SC 143 of 1991, No. SCA 68 of 1991, (1992) 108 FLR 129; [1992] ACTSC 68

COUNSEL:

Mr N Thompson – appellant  

Mr R Lawson -  respondent

SOLICITORS:

Grays – appellant  

Porter Davies – respondent

1. This is an appeal against an order of a Magistrate granting summary judgment on a claim for damages for breach of contract. 

1. The respondent (who was the plaintiff in the court below) claimed the sum of $13,076.25 as being her share of commissions earned while she was employed as a sales consultant in the appellant’s real estate agency at the Gold Coast.  The statement of claim, which was filed on 11 August 2003, identified three separate and distinct sales secured by the respondent in respect of which it was alleged that the appellant, her employer, had paid none or part only of the commission fee to the respondent:

   “The Sanctuary Pines Commission

   4.In or about November 2002, the Plaintiff secured the sale of Unit 24, Sanctuary Pines, Santa Barbara Road, Hope Island in the State of Queensland, for consideration of $222,000.00 (‘the Unit 24 Sale’).

   5.The total commission payable to the Defendant in respect of the Unit 24 Sale was $6,600.00 (including GST) of which $3,300.00 (including GST) was payable to the Plaintiff as a commission fee pursuant to the contract (‘the Unit 24 Commission Fee’).

6.On 21 January 2003, the Plaintiff delivered invoice no. 38 in the amount of $3,300.00 (including GST) to the Defendant in respect of the Lot 24 Commission Fee. 

7.Settlement of the sale of Unit 24 took place on 17 January 2003. 

8.On 7 February 2003, the Defendant paid to the Plaintiff the sum of $2,750.00 in partial reduction of monies owed to the Plaintiff in respect of the Unit 24 Commission Fee.

The Gracemere Island Commission

9.In or about September 2002, the Plaintiff secured the sale of Lot 11 Gracemere Island, Hope Island, in the State of Queensland, for consideration of $375,00.00 (‘the Lot 11 Sale’).

10.The total commission payable to the Defendant in respect of the Lot 11 sale was $10,807.50 (including GST) of which $5,403.75 (including GST) was payable to the Plaintiff as a commission fee pursuant to the contract (‘the Lot 11 Commission Fee’).

11.On 3 April 2003, the Plaintiff delivered invoice no. 43 in…