Brenhaven Pty Ltd v. Harbrae Pty Ltd

DISTRICT COURT OF QUEENSLAND

CITATION:

Brenhaven v Harbrae [2008] QDC 259

PARTIES:

BRENHAVEN PTY LTD (ACN 007 119 655)             (Plaintiffs)

AND

HARBRAE PTY LTD (ACN 010 601 733)

  (Defendant)

FILE NOS:

161/07

DIVISION:

District Court of Queensland, Maroochydore

PROCEEDING:

Civil hearing

ORIGINATING COURT:

Maroochydore District Court

DELIVERED ON:

6.11.2008

DELIVERED AT:

Maroochydore

HEARING DATE:

6.11.2008

JUDGE:

Judge J.M. Robertson

ORDER:

The Plaintiffs claim is dismissed

CATCHWORDS:

PRINCIPAL AND AGENT: where defendant appointed as real estate agent on 1 July and contract of sale entered into the following day; whether defendants activities as a real estate agent prior to appointment were unlawful;
CONTRACT: whether agent had to be the effective cause of sale to retain commission pursuant to the contractual arrangements between it and the Plaintiff; whether defendant was entitled to retain commission paid to it; whether Put and Call Agreement entered into prior to appointment as a real estate agent constituted a lawful appointment under Property Agents and Motor Dealers Act 2000.
PROCEDURE: where dispute decided on basis not the subject of direct pleadings; where parties given further opportunity to make submissions; where no prejudice alleged by the plaintiff.

Legislation:
Property Agents and Motor Dealers Act 2000

Cases Considered:
Asset Loan Co Pty Ltd v Mamap Pty Ltd [2005] QDC 295
David Deane & Associates P/L v Bonnyview P/L and Ors [2005] QCA 270
Knobel & Davis Property Services Pty Ltd v Jones [2007] QDC 241
Jones v Knobel & Davis Property Services P/L [2008] QCA 105
Moneywood Pty Ltd (2001) 202 CLR 351

COUNSEL:

Ms. Muir for the Plaintiff
Mr. Hackett for the Defendant

SOLICITORS:

 Ellison Moschella & Co for the Plaintiff
Shultz Toomey O’Brien Lawyers for the Defendant

Introduction

1. On the 2^nd July 2004 the plaintiff (Brenhaven) entered into a contract to sell a commercial property at Sugar Road Maroochdyore to Mr. and Mrs. Silbery (as trustees for the Silbery Family Trust) for $2,350,000. Harbrae Pty Ltd (Ray White) then traded as Ray White Commercial Mooloolaba and was nominated as Brenhavens agent and stakeholder in the contract, and received a deposit of $115,00 on its behalf on 8^th July 2004. The contract completed on 20 August 2004, and, on or about the 24^th August Ray White paid to itself from the deposit monies the amount of $77,500 by way of commission. Brenhaven claims that Ray White was not entitled to be paid a commission as it was not, prior to 1 July 2004 appointed properly as its agent and was therefore not entitled to commission by virtue of s140 of the Property Agents and Motor Dealers Act 2000 (the Act). It further argues that Ray White was not the effective cause of the sale on 2 July by reason of anything done after its appointment as agent on 1 July 2004.

1. The case sensibly proceeded on the basis of agreed facts and an agreed bundle of documents. Brenhaven called only one witness, Mr. Lopes who was at the time a director and controlling shareholder of…