Deborah Jo-Anne Senior v ZJD Investments Pty Ltd
[2022] QCATA 155
•26 September 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Deborah Jo-Anne Senior v ZJD Investments Pty Ltd [2022] QCATA 155
PARTIES:
Deborah Jo-anne Senior (applicant)
v
ZJD Investments Pty Ltd (respondent)
APPLICATION NO/S:
APL103–21
ORIGINATING APPLICATION NO/S:
MCDO60583/19
MATTER TYPE:
Appeals
DELIVERED ON:
26 September 2022
HEARING DATE:
On the Papers
HEARD AT:
Brisbane
DECISION OF:
Member Carrigan
ORDERS:
The application for leave to appeal or appeal filed by Deborah Jo-Anne Senior on 14 April 2021 is dismissed
CATCHWORDS:
APPEAL AND NEW TRIAL - MINOR CIVIL DISPUTE – APPLICATION FOR LEAVE TO APPEAL OR APPEAL – where grounds of appeal contain no contention of an error of law – where no question of general importance is raised in the grounds of appeal – where there is no reasonably arguable case that the primary decision-maker made an error – where there are no reasonable prospects that the applicant would be granted orders sought – where there is no substantial injustice to the applicant.
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 74, s 83, s 142(3)(a)
Chiappin v Brisbane Housing Company (2011) QCATA 238
Glenwood Properties Pty Ltd v Delmoss Pty Ltd (1986) 2 Qd R 388
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577
QUYD Pty Ltd v Marvass Pty Ltd (2009) 1 Qd R 41
Cachia v Grech (2009) NSWCA 232Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 14 April 2021 Deborah Jo-Anne Senior (“the appellant”) applied to the Tribunal for leave to appeal and to appeal a decision of an Adjudicator made on 18 March 2021.
On 18 March 2021 the Adjudicator made orders that the appellant pay to ZJD Investments Pty Ltd (“ZJD”) the sum of $12,000 within 21 days on account of real estate commission due under an agreement made between those parties on 1 February 2019.
Background
On 1 February 2019 the appellant signed an agreement appointing ZJD as the property agent for the sale of her home at 23 Mulvey Street, Acacia Ridge in the State of Queensland.[1]
[1]Property Occupations Forms 6 – appointment of property agent.
The terms of that agreement included that ZJD would have an exclusive agency for the sale of the home with a listed sale price of $400,000.00 to $420,000.00 from 1 February 2019 to 1 May 2019. The commission payable was 3% of the purchase price and was payable if a contract is entered into and settlement of the contract occurs. In addition, advertising and marketing costs of the property were agreed at $1879.00.[2] There were other terms and conditions to which reference will be made later.
[2]the advertising and marketing budget included advertising on Realestate.com.au 45 days at $1549.00 and on Domain.com.au for the same period at $330.
On 1 February 2019 ZJD, by Katrina Houston of their office, sent the appellant a copy of the agreement in an attachment to the email. The appellant says that she could not open that attachment.
On 6 February 2019 ZJD, by Katrina Houston, sent an email to the appellant informing her that her property had been listed for sale online and referred to the relevant real estate and domain websites. Attached was a “property flyer” for the appellant’s property and requesting any changes to be notified to ZJD. The appellant says she could not open the attachments.
On 3 March 2019 the principle of ZJD, Adrian Daynes, informed the appellant he had an offer of $384,900.00 for the property. The appellant did not accept that offer as an offer of at least $400,000.00 was required.
On 4 March 2019 there were further discussion between Adrian Daynes and the appellant about the offer of $384,900.00 for property. The appellant again refused to accept that offer.
On 5 March 2019 Adrian Daynes met with the appellant to inform her that an absolute final form of the few thousand dollars more than made in the previous offer had been made by the prospective purchaser of the property. The appellant had no interest in the new offer as it was below price required by her. Adrian Haynes then offered to forego the advertising and marketing costs if she agreed to the new offer. The appellant again refused this further offer. There then followed a discussion, which is disputed, but which the appellant says Adrian Daynes abruptly and aggressively gave her the advertising and marketing costs invoice for $1879.00 and ordered her to pay it immediately. The appellant refused to pay immediately and Adrian Haynes proceeded to throw his arms in the air and said it was a joke and she was wasting his time. He said he was taking the property off the market immediately.
The appellant says that from 5 March 2019 Adrian Daynes never contacted her with any potential purchaser nor did she receive any communication from him prior to 4 July 2019.
On 4 April 2019 ZJD, by Katrina Houston, sent an email to the appellant attaching an overdue advertising and marketing invoice. The appellant says that she was not able to open that attachment.
The appellant says that on 25 May 2019 Jim Huang came to her house unannounced and made a written offer to purchase her home for $400,000.00. In the written offer, Jim Huang said that he was the last buyer who put an offer on the property in March but there was no agreement for the purchase price and then stated;
This will save you thousands of dollars without going through real estate agent which means more cash in your hand.
The appellant says that she agreed to the purchase price of $400,000.00. A contract was entered into on about 28 May 2019 with Jim Huang which the appellant says was “after the exclusive period of the agency appointment”. The applicant also says that the contract settled with Jim Huang on 19 June 2019.
Subsequently, Adrian Daynes was able to identify that the appellant had sold her home. On 4 July 2019 he attended at her home unannounced and demanded from the appellant payment of the advertising and marketing fee and full commission on the sale of the home. The appellant would not discuss these matters and said she was babysitting her grandchildren. She asked him to leave the premises.
The appellant then sought legal advice. She said she was told not to respond to any informal communications and was to demand a copy of the agreement for the appointment of the real estate agents to sell her home. She subsequently received a copy of that document by email.
The appellant says she is not liable to pay commission on the sale of her home for a number of reasons, including:
(a)the agent was not the effective cause of the sale;
(b)while accepting that the agent first introduced in Jim Huang, the agent failed to cause the sale to happen;
(c)the agents stated she would not receive a sale price of $400,000.00 on numerous occasions;
(d)the agent walked away from my listing within the agreed 45 days of marketing;
(e)the agent failed to follow up the buyer for a significant period of time to increase their offer; and
(f)the contract was entered into after the expiry of the exclusive period of the agency appointment.
On 16 July 2019 ZJD made application to the Tribunal claiming an amount of $13,879.00 from the appellant for the advertising and maintenance fee and a full commission on the sale of the appellant’s home.
On 13 November 2019 the appellant filed her response in the Tribunal disputing the allegations made by ZJD in the application and stating she was not liable to pay commission for the sale of the home.
The Hearing in the Tribunal
On 18 March 2021 the hearing of the parties’ dispute was conducted in the Tribunal before an Adjudicator.
The Adjudicator heard from both parties. The transcript of the proceedings records that the Adjudicator considered the facts which were largely undisputed but where there was a dispute discussed that dispute. For instance, the appellant says that the contract for the appointment of the real estate agent to sell her property was not explained to her and raised other issues. The Adjudicator referred to that contract and identified where the appellant had signed in a number of sections of that document, including the section in part six of the document which states:
I acknowledge that the agent has provided me with information about sole and exclusive and exclusive agencies.
The Adjudicator also identified relevant clauses in the contract and in particular the clause relating to exclusive agency, which stated:
If the client sells the property after the exclusive appointment expires and the agent was the effective cause of sale (introduced a buyer to the property) the agent may be entitled to commission.
The Adjudicator then considered whether ZJD was the effective cause of the sale of the appellant’s home to Jim Huang. A finding was made that the property was duly advertised, the advertising produced a potential purchaser, Jim Huang, who contacted Adrian Daynes and inspected the property. Adrian Daynes then conducted unsuccessful negotiations between the appellant and Jim Huang. At a subsequent date Jim Huang made a direct approach to the appellant offering to pay her $400,000.00 for the property. This direct approach was successful and those parties entered into a contract for the sale of the property which ultimately settled. The Adjudicator found that ZJD, through the efforts of Adrian Daynes, was the effective cause of the sale of the property. An order was made for the appellant to pay ZJD commission of $12,000.00 within a period of 21 days.
The appellant now seeks leave to appeal and to appeal from that decision of the Adjudicator.
Leave to Appeal
The proceedings before the Adjudicator involved a minor civil dispute and the appellant is required to obtain an order from the Tribunal for leave to appeal.[3]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(a).
The Application for leave to appeal raises the following grounds for leave to appeal:
I feel my matter wasn’t heard by the adjudicator in its entirety.
I was ill-informed by the mediator whom originally heard my matter the mediator advised me I would not have the opportunity to speak during court proceedings therefore I was ill-prepared.
Due to my autoimmune disease and inability to communicate effectively due to foggy brain I needed assistance with support to speak on my behalf and in high stress situations.
The relevant principles relating to the grant of leave to appeal have been discussed in Chiappin v Brisbane Housing Company, in which Member Howard (and with whom Senior Member Oliver agreed) summarised a number of the authorities as follows:[4]
Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage,[5] there is a reasonably arguable case that the primary decision-maker made an error[6] and there are reasonable prospects that the applicant would be granted orders in its favour;[7] or to correct a substantial injustice to the applicant caused by error.[8] The appeal process is essentially for correcting orders made by the Tribunal which heard the application. Finality in litigation is highly desirable because any further action beyond the hearing can be costly and unnecessary burdensome on the parties.[9]
[4](2011) QCATA 238 at paragraph 6.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd (1986) 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577, 578 and 580.
[6]QUYD Pty Ltd v Marvass Pty Ltd (2009) 1 Qd R 41.
[7]Cachia v Grech (2009) NSWCA 232, (13).
[8]QUYD Pty Ltd the v Marvass Pty Ltd (2009) 1 Qd R 41.
[9]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
The transcript of the proceedings before the Adjudicator shows that the representative for ZJD was asked to explain what the matter was about and following that explanation the appellant was asked what she had to say about her denial of any obligation to pay commission. The appellant then provided explanations alleging that the representative of ZJD was not “very truthful” and discussed conversations which she had with her real estate agent. The adjudicator gave her a further opportunity to “make your case” and the appellant explained how she felt threatened and intimidated by the real estate agent and went on to describe a course of conduct including the account for advertising and marketing which she was asked to pay. She agreed that she had signed the Form 6 agreement to appoint the real estate agent and the Adjudicator took her to relevant clauses of that contract seeking her explanation. The appellant also described the circumstances of signing the contract with Jim Huang.
There is no evidence in the transcript of the proceedings that the appellant’s case “wasn’t heard by the adjudicator in its entirety.”
Putting to one side for the moment the inadmissibility of anything said to the appellant by a mediator in the course of the mediation or a compulsory conference,[10] the transcript of the proceedings shows that the Adjudicator gave the appellant on more than one occasion the opportunity to further explain her case. At no stage during the proceedings did the appellant alert the Adjudicator to any alleged statement by a mediator or to the fact that she was in anyway “ill-prepared”.
[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 74 and s 83.
The transcript of the proceedings does not provide any evidence that the appellant had any inability to communicate effectively or that there was some impairment of her ability to be understood. The appellant certainly did not make known to the Adjudicator the existence of any alleged autoimmune disease. Neither has the appellant since filing the application on 19 April 2021 provided any medical evidence in support of the allegations which remains unsubstantiated.
The Tribunal finds that the grounds raised by the appellant for leave to appeal do not raise any matter requiring the grant of leave to appeal. The grounds relied upon by the appellant do not raise any question of general importance requiring further argument and decision of the Appeal Tribunal; the grounds relied upon do not show a reasonably arguable case that the adjudicator made an error; nor are there any reasonable prospects that the appellant would be granted the orders which she seeks to in effect set aside the decision of the Adjudicator and be replaced with a finding that she was not liable to pay $12,000.00 commission. Finally, there is no basis on an examination of each of the grounds relied upon by the appellant that there is any substantial injustice.
The Tribunal finds that there was no discernible error in the adjudicator’s decision. Accordingly, leave to appeal is refused.
Orders
The Tribunal dismisses the appellant’s application for leave to appeal or appeal the decision of the Adjudicator.
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