Greg Roughsedge Realty P/L v Whitecross - [2001] QCA 426

SUPREME COURT OF QUEENSLAND

CITATION: Greg Roughsedge Realty P/L v Whitecross [2001] QCA 426

PARTIES: GREG ROUGHSEDGE REALTY PTY LTD
(ACN 066 121 284)
(plaintiff/respondent/cross-appellant)
v
RAYMOND JOHN WHITECROSS
(first defendant/appellant/first cross-respondent)
SHARON BRENDA WHITECROSS
(second defendant/not a party to appeal/second cross‑respondent)

FILE NO/S: Appeal No 736 of 2001
DC No 233 of 1996

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: District Court at Maroochydore

DELIVERED ON: 12 October 2001

DELIVERED AT: Brisbane

HEARING DATE: 18 September 2001

JUDGES: Williams JA, Jones J, Douglas J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER: Allow the appeal. Set aside the judgment below and order that judgment be entered for the defendant;
Dismiss the cross-appeal;
Order that the respondent pay the costs of the trial and of this appeal.

CATCHWORDS:
PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – QUEENSLAND – REMUNERATION – whether respondent estate agent entitled to commission on sale – where four lots involved, three owned solely by the first appellant and one jointly owned with his wife – where respondent introduced a buyer to appellant – where a contract emerged but was later superseded by a second contract which did not identify the respondent as the appellant’s agent – where at time of introduction and negotiations the respondent did not hold a real estate agents licence as required under s 19 of Auctioneers and Agents Act 1971

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – agency – real estate agent – terms of engagement – whether engagement in writing – whether written appointment in clause of contract satisfies s 76(1)(c) of the Auctioneers and Agents Act 1971 – interpretation of word "transaction" within s 76(1) of the Auctioneers and Agents Act 1971

Auctioneers and Agents Act 1971 (Qld), s 19, s 19(2), s 76(1)(a), s 76(1)(b), s 76(1)(c)

Auctioneers and Real Estate Agents, Debt Collectors and Motor Dealers Act 1922-1961 (Qld) (repealed), s 17, s 23, s 23(1), s 23(1)(a)

Anderson v Densley (1953) 90 CLR 460, cited

Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418, considered

Meier v Wardell (1924) QWN 19, considered

Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 75 ALJR 408, applied

COUNSEL: H B Fraser QC with D J Kelly for the appellant/
first cross‑respondent and second cross‑respondent
M W Jarrett for the respondent/cross-appellant

SOLICITORS: Garland Waddington (Maroochydore) for the appellant/
first cross‑respondent and second cross‑respondent
Elias Mumford (Maroochydore) for the respondent/ cross‑appellant

WILLIAMS JA : I agree with the reasons for judgment of Jones J and with the orders proposed.

JONES J: This is an appeal against a decision in the District Court wherein the respondent, a real estate agent, Greg Roughsedge Realty Pty Ltd, was partially successful in its claim for agents commission. The claim was for the sum of $84,887.50 being the commission calculated on a sale price of $3,437,500.00. The learned trial judge allowed the claim…

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.

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Details

Case: [2001] QCA 426
Decision Date: 12 October 2001

CaseChat Overview and Summary

Greg Roughsedge Realty P/L, an estate agency, sought to recover commission from Whitecross, another estate agent, for introducing a buyer to the first appellant. The case was heard and determined in the Supreme Court of Queensland, with further appeal to the Court of Appeal. The central issue was whether Whitecross was entitled to commission given that at the time of introducing the buyer, he did not hold a real estate agents licence, as required by the Auctioneers and Agents Act 1971. Additionally, the court needed to determine whether the terms of engagement between the parties satisfied statutory requirements and whether the written appointment in the contract met the conditions of section 76(1)(c) of the Act.

The Court of Appeal found that Whitecross was not entitled to commission. The court held that the respondent did not hold a real estate agents licence at the time of introducing the buyer, contravening the statutory requirement. Furthermore, the court interpreted the term "transaction" in section 76(1) of the Act to mean the entire process from the introduction of the buyer to the execution of the contract, rather than just the initial introduction. As the contract that emerged did not identify Whitecross as the appellant’s agent, and the later contract superseded the initial one, Whitecross did not meet the statutory conditions for entitlement to commission. Consequently, the appeal was allowed, the original judgment was set aside, and judgment was ordered in favour of the defendant.

In its final orders, the court dismissed the cross-appeal and ordered Whitecross to pay the costs of the trial and the appeal.

Orders

Orders of the court

Allow the appeal. Set aside the judgment below and order that judgment be entered for the defendant;

Dismiss the cross-appeal;

Order that the respondent pay the costs of the trial and of this appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Greg Roughsedge Realty P/L v Whitecross [2001] QCA 426
PARTIES:	GREG ROUGHSEDGE REALTY PTY LTD (ACN 066 121 284) (plaintiff/respondent/cross-appellant) v RAYMOND JOHN WHITECROSS (first defendant/appellant/first cross-respondent) SHARON BRENDA WHITECROSS (second defendant/not a party to appeal/second cross‑respondent)
FILE NO/S:	Appeal No 736 of 2001 DC No 233 of 1996
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Maroochydore
DELIVERED ON:	12 October 2001
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2001
JUDGES:	Williams JA, Jones J, Douglas J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	Allow the appeal. Set aside the judgment below and order that judgment be entered for the defendant; Dismiss the cross-appeal; Order that the respondent pay the costs of the trial and of this appeal.
CATCHWORDS:	PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – QUEENSLAND – REMUNERATION – whether respondent estate agent entitled to commission on sale – where four lots involved, three owned solely by the first appellant and one jointly owned with his wife – where respondent introduced a buyer to appellant – where a contract emerged but was later superseded by a second contract which did not identify the respondent as the appellant’s agent – where at time of introduction and negotiations the respondent did not hold a real estate agents licence as required under s 19 of Auctioneers and Agents Act 1971 CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – agency – real estate agent – terms of engagement – whether engagement in writing – whether written appointment in clause of contract satisfies s 76(1)(c) of the Auctioneers and Agents Act 1971 – interpretation of word "transaction" within s 76(1) of the Auctioneers and Agents Act 1971 Auctioneers and Agents Act 1971 (Qld), s 19, s 19(2), s 76(1)(a), s 76(1)(b), s 76(1)(c) Auctioneers and Real Estate Agents, Debt Collectors and Motor Dealers Act 1922-1961 (Qld) (repealed), s 17, s 23, s 23(1), s 23(1)(a) Anderson v Densley (1953) 90 CLR 460, cited Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418, considered Meier v Wardell (1924) QWN 19, considered Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 75 ALJR 408, applied
COUNSEL:	H B Fraser QC with D J Kelly for the appellant/ first cross‑respondent and second cross‑respondent M W Jarrett for the respondent/cross-appellant
SOLICITORS:	Garland Waddington (Maroochydore) for the appellant/ first cross‑respondent and second cross‑respondent Elias Mumford (Maroochydore) for the respondent/ cross‑appellant