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

1. 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.

1. 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.

2. 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].

3. Mr and Ms Dat say that the tribunal’s finding that Ms Gregory was entitled to commission was wrong at law.

4. 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.

1. 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.

1. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[5]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[6] 

   [5]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

   [6]Chambers v Jobling (1986) 7 NSWLR 1 at 10.

1. The facts are, largely, undisputed. On 30 August 2014, the Dats listed their property with Ms Gregory at $325,000.

1. Ms Gregory met Ms Proctor and Mr Sharkey on 5 July 2015. She took them to view the Dat property that day. Ms Proctor and Mr Sharkey made an offer of $250,000, which was rejected.

1. On 18 July 2015, the Dats listed their property with Harcourts at $279,000. Ms Gregory rang Ms Proctor to advise of the price reduction. Ms Gregory, Ms Proctor and Mr Sharkey inspected the property again on 18 July 2015.

1. On 6 August 2015, Mr Sharkey instructed Ms Gregory to make an offer of $240,000. He told her he would go to contract at $250,000. Ms Gregory emailed the offer to the Dats. They told her they would accept a contract at $270,000 plus commission. Ms Proctor and Mr Sharkey told Ms Gregory their limit was $250,000.

1. Ms Gregory continued to deal with Ms Proctor and Mr Sharkey about other properties. She phoned Mr Starkey on 9 October 2015 to tell him about a new property on the market. Mr Starkey told her they had signed a contract on the Dat property at $250,000. He told her they were driving through the area when they saw an open house. They dropped in to have a look and told the agent they had previously made an offer on the property. The second agent put an offer of $250,000 to the Dats, which they accepted.

1. The tribunal considered the evidence, and the authorities and found that Ms Gregory was an effective cause of the sale. The tribunal noted[7] the comments of the Chief Justice in LJ Hooker Ltd v WJ Adams Estates[8] that it was possible two agents could be the effective cause of a sale; one through the introduction of the buyer and one through the closing of the sale.

   [7]Transcript page 1-17, line 41.

   [8]Ibid 23.

1. Ms Proctor and Mr Sharkey bought the property at a price they previously offered through Ms Gregory. They settled the sale of the property on 7 October 2015, which indicates that they signed a contract in early September 2015. Oddly, after no action on the market for over a year, the Dats appointed Harcourts only after Ms Gregory indicated that she had interest in the property from Ms Proctor and Mr Sharkey. The only intervening event between Ms Gregory’s introduction and the sale was Harcourts’ open house. Ms Gregory’s sign was on display outside the property. Ms Proctor and Mr Sharkey told Harcourts that they had been introduced to the property and made offers through Ms Gregory.

1. Under an open listing, a vendor can appoint another real estate agent, so there was nothing improper in the Dats appointing Harcourts to sell the property. However, under the Property Agents and Motor Dealers (Real Estate Agency Practice Code of Conduct) Regulation 2001,[9] Harcourts should have provided the Dats with a written statement that, if they appointed Harcourts and there was a sale, the Dats may have to pay commission to both Harcourts and Ms Gregory.

   [9]Section 19.

1. Both the legislation and the cases contemplate the possibility that there may be more than one effective cause of sale. The tribunal found that Ms Gregory introduced Ms Proctor and Mr Sharkey and they became the eventual purchasers. The evidence can support that finding.

1. The evidence can support a finding that Ms Gregory was an effective cause of sale and I can find no compelling reason to come to a contrary view.

1. There is no reasonably arguable case that the tribunal was in error. Leave to appeal should be refused.