Glamoren Pty Ltd v Lee - [2012] QCATA 176

CITATION:

Glamoren Pty Ltd v Lee and Anor [2012] QCATA 176

PARTIES:	Glamoren Pty Ltd t/as Keyline Realty (Applicant/Appellant)
v
Andrew Lee Carey Lee (Respondents)

APPLICATION NUMBER:

APL114-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President

DELIVERED ON:

14 September 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Glamoren Pty Ltd is granted leave to appeal.

2. The appeal is allowed.

3. The order made on 7 March 2012 is set aside.

4. Order, in lieu, that Andrew Lee and Carey Lee shall pay Glamoren Pty Ltd $16,720.00 within 60 days of today’s date.

CATCHWORDS:

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RIGHTS OF AGENT AGAINST PRINCIPAL – REMUNERATION OR COMMISSION – CONDITIONS ESSENTIAL TO ENTITLE AGENT TO REMUNERATION – ESTABLISHMENT OF RELATIONSHIP PRINCIPAL AND THIRD PARTY – RELATIONSHIP ESTABLISHED BY PRINCIPAL OR BY ANOTHER AGENT – where agent introduced purchaser – where sole agency expired – where purchase completed through another agent – whether agent entitled to commission – where Magistrate applied “effective cause” test – whether correct test applied – whether interest should be awarded

Queensland Civil and Administrative Tribunal Act2009, ss 14(3), 32,143(3), 143(5),146
Supreme Court Act 1995, s 47

Coombes v Wollombi Real Estate (General) [2006] NSWCTTT 591
LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351
Newman v Anserdoro Pty Ltd [2008] NSWSC 371

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’).

REASONS FOR DECISION

Mr and Mrs Lee appointed Glamoren Pty Ltd to act as their agent in the sale of a property at Bli Bli. The appointment was as a sole agent from 21 January 2011 to 21 March 2011. In February 2011, Glamoren presented a contract for $599,000 from a Mr and Mrs Perkins. Mr and Mrs Lee declined the offer.
Mr and Mrs Lee terminated Glamoren’s agency by email of 5 March 2011. On 7 April 2011, Mr and Mrs Lee appointed Ray White Bli Bli as their agent. Ray White presented a contract from Mr and Mrs Perkins at $615,000 subject to finance. After negotiations, Mr and Mrs Lee eventually sold the property to Mr and Mrs Perkins for $590,000. Ray White Bli Bli did not charge commission on that sale.
Glamoren claimed commission from Mr and Mrs Lee on the basis that it introduced Mr and Mrs Perkins to the property. The learned Magistrate who heard the matter in QCAT’s minor civil disputes jurisdiction dismissed the claim, stating that Glamoren was not the effective cause of the sale and, therefore, not entitled to commission.
Glamoren has applied for leave to appeal the learned Magistrate’s decision. It claims that commission is payable upon the introduction of a purchaser, so the learned Magistrate erred in applying a test of ‘effective…

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 Glamoren Pty Ltd v Lee

Details

AGLC: Glamoren Pty Ltd v Lee and Anor [2012] QCATA 176
Case: [2012] QCATA 176
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Glamoren Pty Ltd v Lee involved the issue of whether an agent was entitled to a commission after introducing a purchaser to the principal, even though the sale was completed by another agent after the sole agency period had expired. The dispute was heard in the Supreme Court of New South Wales. The legal issues the court was required to decide included whether the agent was entitled to a commission under the terms of the agency agreement and whether the "effective cause" test was the correct test to apply in this situation.

The court held that the agent was not entitled to a commission as the relationship between the principal and the third party was established by another agent, and not by the original agent who had introduced the purchaser. The court found that the "effective cause" test was not the appropriate test to apply in this situation, as it did not take into account the terms of the agency agreement. The court held that the correct test to apply was whether the agent had fulfilled the conditions essential to entitle them to remuneration, which in this case was the establishment of a relationship between the principal and the third party. The court also found that interest should be awarded to the principal for the delay in payment of the commission.

The court allowed the appeal brought by the principal, setting aside the previous order made on 7 March 2012. In lieu of that order, the court ordered that the defendants shall pay the plaintiff $16,720.00 within 60 days of the date of the judgment. The court also granted the principal leave to appeal, which was subsequently allowed.

Orders

Orders of the court

1. Glamoren Pty Ltd is granted leave to appeal.

2. The appeal is allowed.

3. The order made on 7 March 2012 is set aside.

4. Order, in lieu, that Andrew Lee and Carey Lee shall pay Glamoren Pty Ltd $16,720.00 within 60 days of today’s date.

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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