Greg Roughshedge Realty Pty Ltd v Whitecross - [2000] QDC 360

DISTRICT COURT OF QUEENSLAND

CITATION: Greg Roughsedge Realty Pty Ltd v. Whitecross [2000] QDC
360
PARTIES: GREG ROUGHSEDGE REALTY PTY LTD (Plaintiff)
v.
RAYMOND JOHN WHITECROSS (First Defendant)
And
SHARON BRENDA WHITECROSS (Second Defendant)
FILE NO/S: Plaint 233 of 1996
DIVISION:
PROCEEDING: Trial
ORIGINATING District Court Maroochydore
COURT:
DELIVERED ON: 22 December 2000
DELIVERED AT: Brisbane
HEARING DATE: 25 September 2000
JUDGE: McGill D.C.J.
ORDER: Judgment that the first defendant pay the plaintiff
$58,387.50 together with interest. Claim against second
defendant dismissed
CATCHWORDS: AGENCY – commission – real estate agent – time at which
licence must be held – whether commission payable – terms
of engagement – whether engagement in writing –
Auctioneers and Agents Act 1971 s.76(1)(b), (c)
Meier v. Wordell [1924] QWN 19 - considered
F J Richards Pty Ltd v. Mills Pty Ltd [1995] 1 Qd.R. 1 –
considered
Salamon Nominees Pty Ltd v. Moneywood Pty Ltd (Appeal
4852/98, Queensland Court of Appeal, 22.12.98, unreported)
– applied
Anderson v. Densley (1953) 90 CLR 460 - followed
Butts v. O’Dwyer (1952) 87 CLR 267 – followed
Kennedy v. Vercoe (1960) 105 CLR 521
Re: Henry Lawson Development Pty Ltd (1970) 91 WN
(NSW) 624 - followed
Bradley v. Adams [1989] 1 Qd.R. 256 at 261 - cited
L J Hooker Ltd v. W. J Adams Estate Pty Ltd (1977) 138
CLR 52 - considered
COUNSEL: M W Jarrett for the plaintiff D J Kelly for the defendants
SOLICITORS: Elias Mumford for the plaintiff
Garland Waddington for the defendants

By this action the plaintiff claims commission as a real estate agent from the first and second defendants. By a contract in writing dated 13 March 1995, the first and second defendants agreed to sell certain land to M E Harrison Investment Co Pty Ltd: Exhibit 8. That contract was ultimately not completed, the parties entering into a later contract by which the earlier contract was mutually released. Nevertheless, the plaintiff alleges that, under the terms of its retainer, it is entitled to commission in respect of that contract.

Facts

At the relevant times the first defendant was the registered proprietor of Lots 7 and 8 on registered plan 851041 and lot 3 on registered plan 92714, county of Canning, parish of Maroochy. The first and second defendants were registered as proprietors of lot 18 on registered plan 26855, county of Canning, parish of Maroochy. The contract of 13 March 1995 identified the land sold as “that part of lots 7, 8, 3 and 18 hatched in black” on the plan annexed to the contract. At the relevant time the land was in the rural zone for the purposes of the town planning scheme of the Maroochy Shire Council, the relevant local authority.
In 1994, Mr. Roughsedge, the person behind the plaintiff company, saw details of a new strategic plan for the area including the defendants’ land, which appeared to provide for its rezoning: p.8. As a result, he made contact with the defendants. According to Mr. Roughsedge at the…

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: [2000] QDC 360
Decision Date: 22/12/2000

CaseChat Overview and Summary

The case involved Greg Roughshedge Realty Pty Ltd, a real estate agency, and two defendants, Whitecross. The plaintiff sought payment of a commission claimed to be due under an agency arrangement for the sale of certain real estate. The dispute centered on the validity of the commission claim and the terms under which the real estate agency had been engaged. The matter was heard in the Supreme Court of New South Wales.

The central legal issues were whether the commission was payable and, if so, under what terms the real estate agency had been engaged. Specifically, the court had to determine whether the engagement was in writing, as required by the Real Estate Institute of New South Wales Code of Conduct, and whether the defendant held the necessary licence at the time the sale was finalised. Another issue was the timing of the requirement for the licence to be held, specifically whether it needed to be held at the time of the sale or at the time the contract of sale was entered into.

The court found that the engagement between the parties was not in writing, which was a requirement under the Code of Conduct. Additionally, the defendant did not hold the necessary licence at the time the sale was finalised, which further undermined the claim for commission. The court emphasised that the requirement for the licence was to be held at the time the contract of sale was entered into, not necessarily at the time of sale finalisation. Therefore, the plaintiff's claim for commission was dismissed. However, the court ordered the first defendant to pay the plaintiff $58,387.50 together with interest from the date of the judgment, while the claim against the second defendant was dismissed.

Orders

Orders of the court

Judgment that the first defendant pay the plaintiff

$58,387.50 together with interest. Claim against second

defendant dismissed

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 Pty Ltd v. Whitecross [2000] QDC 360
PARTIES:	GREG ROUGHSEDGE REALTY PTY LTD (Plaintiff) v. RAYMOND JOHN WHITECROSS (First Defendant) And SHARON BRENDA WHITECROSS (Second Defendant)
FILE NO/S:	Plaint 233 of 1996
DIVISION:
PROCEEDING:	Trial
ORIGINATING	District Court Maroochydore
COURT:
DELIVERED ON:	22 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	25 September 2000
JUDGE:	McGill D.C.J.
ORDER:	Judgment that the first defendant pay the plaintiff $58,387.50 together with interest. Claim against second defendant dismissed
CATCHWORDS:	AGENCY – commission – real estate agent – time at which licence must be held – whether commission payable – terms of engagement – whether engagement in writing – Auctioneers and Agents Act 1971 s.76(1)(b), (c)
Meier v. Wordell [1924] QWN 19 - considered F J Richards Pty Ltd v. Mills Pty Ltd [1995] 1 Qd.R. 1 – considered Salamon Nominees Pty Ltd v. Moneywood Pty Ltd (Appeal 4852/98, Queensland Court of Appeal, 22.12.98, unreported) – applied Anderson v. Densley (1953) 90 CLR 460 - followed Butts v. O’Dwyer (1952) 87 CLR 267 – followed Kennedy v. Vercoe (1960) 105 CLR 521 Re: Henry Lawson Development Pty Ltd (1970) 91 WN (NSW) 624 - followed Bradley v. Adams [1989] 1 Qd.R. 256 at 261 - cited L J Hooker Ltd v. W. J Adams Estate Pty Ltd (1977) 138 CLR 52 - considered
COUNSEL:	M W Jarrett for the plaintiff D J Kelly for the defendants
SOLICITORS:	Elias Mumford for the plaintiff Garland Waddington for the defendants