Dat & Anor v Gregory - [2016] QCATA 36

CITATION:

Dat & Anor v Gregory [2016] QCATA 36

PARTIES:	Nguyen Dat Myle Dat (Applicants/Appellants)
v
Deborah Gregory t/as A1 Independent Real Estate (Respondent)

APPLICATION NUMBER:

APL032 -16

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

27 April 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal refused

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – MINOR DEBT – where claim for commission on sale of property – whether agent effective cause of sale - whether grounds for leave to appeal

Dearman v Dearman (1908) 7 CLR 549
LJ Hooker Ltd v WJ Adams Estates (1977) 138 CLR 52
Fox v Percy (2003) 214 CLR 118
Pickering v McArthur [2005] QCA 294
Chambers v Jobling (1986) 7 NSWLR 1

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Deborah Gregory is a licensed real estate agent trading as A1 Independent Real Estate. On 30 August 2014, Nguyen and Myle Dat appointed Ms Gregory as agent for the sale of their property at Marburg. They appointed Ms Gregory on an open listing until the property was sold.

In July 2015, Ms Gregory introduced Dianne Proctor and John Sharkey to the property. The Dats sold the property to Ms Proctor and Mr Sharkey through another agent in September 2015. Ms Gregory claimed commission on the sale. The tribunal ordered the Dats to pay Ms Gregory commission.
Mr and Ms Dat want to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
Mr and Ms Dat say that the tribunal’s finding that Ms Gregory was entitled to commission was wrong at law.
The tribunal correctly identified that, to be entitled to commission, Ms Gregory had to be the effective cause of sale. Mr and Ms Dat, by reference to LJ Hooker Ltd v WJ Adams Estates Pty Ltd,[3] confirm that whether a person was an effective cause of sale is a question of fact.
[3](1977) 138 CLR 52.

Mr and Ms Dat submit on the basis of LJ Hooker Ltd v WJ Adams Estates,[4] that “effective cause” means more than simply “cause” because there may be other events that played a part in the sale. They say, and I agree, that the factual inquiry is whether a sale was really brought about by the act of the agent.
[4]Ibid 86.

The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dat & Anor v Gregory

Details

AGLC: Dat & Anor v Gregory [2016] QCATA 36
Case: [2016] QCATA 36
Decision Date: 27 April 2016

CaseChat Overview and Summary

The case of Dat & Anor v Gregory involved a dispute over a commission claim for a property sale. The plaintiffs sought commission from the defendants, who were the vendors of the property. The nature of the dispute was whether the plaintiffs were entitled to a commission as the effective cause of the sale, considering the minor nature of the debt and the overall transaction. The matter was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue before the court was whether the plaintiffs were entitled to a commission for the sale of the property. The court had to determine if the plaintiffs were the effective cause of the sale, which was a condition for claiming commission under the applicable contract. Another issue was whether the plaintiffs met the criteria for leave to appeal, given the minor nature of the debt and the overall transaction.

The court examined the evidence and concluded that the plaintiffs were not the effective cause of the sale. The court found that the sale was primarily due to the defendants' efforts and market conditions rather than the plaintiffs' intervention. Consequently, the plaintiffs were not entitled to commission. The court also considered the application for leave to appeal and found that the case did not meet the necessary criteria. The minor nature of the dispute and the specific circumstances did not warrant an appeal.

The court refused leave to appeal, and no further orders were made. The plaintiffs' claim for commission was dismissed, and they were not granted permission to appeal the decision.

Orders

Orders of the court

1. Leave to appeal refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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