Harcourts Coastal v B. Hunt Pty Ltd as Trustee - [2014] QCAT 600

CITATION:

Harcourts Coastal v B. Hunt Pty Ltd as Trustee [2014] QCAT 600

PARTIES:	Harcourts Coastal (Applicant)
v
B. Hunt Pty Ltd as Trustee (Respondent)

APPLICATION NUMBER:

MCDO530-14

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

15 October 2014

HEARD AT:

Southport

DECISION OF:

Adjudicator Trueman

DELIVERED ON:

11 November 2014

DELIVERED AT:

Southport

ORDERS MADE:

1. That the Respondent pay to the Applicant the sum of $6,721.50 within fourteen days.

CATCHWORDS:

Minor Civil dispute – minor debt – breach of agreement – where Respondent entered into exclusive Appointment of Real Estate Agent – allegation Agent failed in obligations under Property Agent and Motor Dealers Act 2000 - whether Respondent required to pay for marketing expenses – interpretation of “payment at settlement”

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Dane Atherton and Ms Rachel Reeves represented Harcourts Coastal

RESPONDENT:

Mr Brad Hunt

REASONS FOR DECISION

Harcourts Coastal entered into an agreement with Mr Hunt as trustee for B Hunt Pty Ltd to market the property located at 24 Kurrawa Avenue, Mermaid Waters. The agreement was an exclusive agreement and was signed on 13 April 2014. The exclusive period was to continue until 11 June 2014.
Harcourts allege that Mr Hunt agreed and initiated a marketing program for the sum of $6,616.50 which he authorised in writing and signed a marketing schedule.
Harcourts allege the marketing program funds were expended, a sale was not forthcoming and that Mr Hunt withdrew the property from the market on 17 June 2014. They allege Mr Hunt refuses to now pay for the agreed marketing costs.
Mr Hunt claims that he should not be liable for the marketing campaign costs on three grounds. Firstly, that he was not provided with a copy of the Form 22A prior to Harcourts performing their services. Secondly, that Mr Hunt was misled about price by Harcourts, and thirdly that Mr Hunt alleges that insufficient documentation has been provided to him.

Legislation

The tribunal has jurisdiction to hear and determine minor civil disputes – minor debt matters.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 s 11.
A minor civil application for a claim to recover a debt or liquidated demand of money must be made by a person to whom the debt is owed or money is payable.[2]
[2]Ibid s 12(4)(a).
In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute and may, if considered appropriate, to make an order dismissing the application.[3] The tribunal may make an order requiring a party to the proceeding to pay a stated amount to a stated person. [4]
[3]Ibid s 13(1).
[4]Ibid s 13(2)(a)(i).
When appointing an Agent to sell a property the appointment must be in the approved form. The approved form must include a prominent statement that the client should seek independent legal advice before signing any appointment.[5] If the appointment that does not comply with section 134(1) of the Property Agents and Motor Dealers Act 2000, the appointment is ineffective from the time it is made.[6]
[5]Property Agents and Motor Dealers Act 2000 s 134(2).
[6]Ibid s 134(3).
The appointment of a real estate agent for the sale of residential property under a sole or exclusive agency is ineffective from the time it is made if the term of the appointment is more than 60 days.[7]
[7]Ibid s 137(1).

Evidence

Harcourts filed a claim for minor civil dispute – minor debt on 3 July 2014 seeking payment of outstanding marketing costs and the filing fee. They provided to the tribunal a copy of the PAMDA Form 22A Appointment of real estate agent document signed by Mr Hunt on 13 April 2014.[8]
[8]In bundle of documents attached to original claim.
Harcourts claim that Mr Hunt signed the advertising marketing campaign agreement that was attached to the Form 22A. They claim that Mr Hunt agreed to the marketing campaign costs and that an invoice was provided to him for payment on 22 April 2014. A copy of the Invoice dated 22 April 2014 reference no. HSC719 was provided to the tribunal.[9]
[9]In bundle of documents attached to original claim.
Harcourts state that the advertising campaign was booked and paid for with the Gold Coast Bulleting, and costs of title search, a photo signboard and photography package, highlight listing on realestate.com.au together with GC Bulletin Newspaper pictorial for 4 weeks, and invoices[10] proved that the total sum of $6,616.50 had been spent on behalf of marketing Mr Hunt’s property.
[10]Exhibit 1.
Harcourts state they seek to be reimbursed for the cost of the marketing and advertising campaign costs that Mr Hunt had authorised and approved, and had agreed to pay, and now refuses to make payment.
Harcourts seek payment of the outstanding invoice and filing fee cost of $105.00.
Harcourts allege that they have complied with all requirements under the Property Agents and Motor Dealers Act 2000 and that they thoroughly went through the agreement with Mr Hunt, they explained the advertising and marketing campaign costs and the exclusive listing provisions and the start and end dates, and the commission was negotiated and agreed. Harcourts stated that Mr Hunt signed and initialled all changes including part 9 on page 4 of the listing authority relating to the authorised costs for advertising and marketing.
Mr Hunt filed a response on 8 August 2014. He seeks orders that the claim be dismissed. Mr Hunt claims that he listed the property with Harcourts on the basis that he was given advice by the Agent that the property was valued more than reached at auction. He said he listed the property with the listing agent after she has presented to him an advertising campaign. He said he did sign the ‘marketing sheet’ but that he said he inserted on the sheet that the money he had spent on marketing was ‘to be paid at settlement’.
Mr Hunt said at no time was he ever provided with a copy of the Form 22A or marketing sheet despite requests on ‘numerous occasions’. Mr Hunt said that he signed the Form 22A without an amount being inserted on page 4 of the agreement regarding the marketing costs as he said he ‘would not have allowed this to been on the document without explanation’. He said he never initialled the amount and that the advertising or marketing campaign was ‘explained to him on a separate document’.
Mr Hunt said that he would never have agreed to spend the amount suggested on a marketing campaign that he believed was destined to fail due to the ‘incompetence of the listing agent’. He said, ‘the price she tried to force us to accept along the process, was an indication of what we were to expect, we would never have listed the property for sale in the first place’.
Mr Hunt said it was not explained to him how the marketing funds were to be spent prior to the commencement of the campaign or auction. Mr Hunt said he had an ‘expert opinion’ that his property should be listed for much higher and was valued much more than the sum that it reached when it was passed in at auction. He said the Agent was encouraging him to sell the property at any price and to ‘just make a sale at any price’. He claimed that the agent was ‘not acting in his best interests’.
Mr Hunt did not dispute that he had ‘agreed to an amount for marketing to be spent during the listing process, but the amount was agreed upon on the basis that he was given correct professional information’.
Mr Hunt said he tried to negotiate on the fees with the listing agent but without success.
Mr Hunt attached evidence to his Response including emails[11], a Harcourts property appraisal[12], marketing reports[13] and a copy of the PAMDA Form 22A[14] together with as copy of original invoice and an itemized invoice.
[11]Attachment 2 – 3.
[12]Attachment 4.
[13]Attachment 6.
[14]Attachment 5.

Findings

Mr Hunt gave conflicting evidence regarding the marketing costs. He said he would never have signed the Form 22A with the advertising costs inserted there without explanation. He stated that when he signed the Form 22A the amount for advertising was not inserted. He then concedes that he was sold a marketing campaign, and agreed to the sum of $6,616.50 that consisted of several advertisements in the newspaper and a signboard.[15] It is not disputed that the parties agree that despite an invoice for the marketing campaign being given to Mr Hunt on 22 April 2014 he was not required to make immediate payment as the parties agreed the invoice could be paid ‘on settlement’.
[15]Contained in submissions attached to Response.
Mr Hunt was adamant that he was given a false assessment of the value of his property and had he been given a more accurate estimate of the price his property would have fetched at auction he would never have listed the property for sale. The unfortunate facts of this case is that Mr Hunt cannot rely on the fact his property did not reach expected reserve price as a defence to not be required to pay the auction and marketing costs.
The dispute in this case arises as each of the parties has a different interpretation of their agreement that the marketing costs would be “paid at settlement” and what that means.
I find that the agreement by the parties to pay the cost of the marketing campaign was not on the basis that the costs were only to be paid if the property sold. I find from the evidence that the agreement between the parties was that Harcourts agreed to defer payment on the basis that once the property sold they would be paid the costs at settlement. I do not find that the agreement was that should the property not sell and settlement not occur that Mr Hunt would not be required to pay the advertising and campaign costs. I am satisfied that once Mr Hunt withdrew the property for sale it was clear there would not be a settlement and sale proceeds where the costs could be paid from. Once the property was withdrawn, I am satisfied that the costs for the marketing campaign became due and payable immediately by Mr Hunt.
I find that the fact that Mr Hunt was disappointed with the auction process, and concerned that his property was worth more than the highest bid at auction, does not of itself mean that it was due to any fault of the listing agent. I find that the fact that the property did not reach reserve might be more indicative of an unrealistic reserve price or the fact that there was little interest in that particular property.
I find that once the property did not sell at auction on 11 May 2014 the Agent continued to market the property and allegedly still had potential buyers for the property. It is not disputed that on 12 May 2014 an offer was presented to Mr Hunt of $705,000.00. Mr Hunt rejected the offer and counter singed the contract at $780,000.00. I find that Mr Hunt had conceded that he was hopeful that the Purchaser would come back with another offer and that he was hopeful that the property would sell.
I find from the evidence that the Form 22A has been properly executed by all parties, and advice given as to market price. The Form 22A refers to comparative market analysis and each page signed, initialled and witnesses as required. I do not accept Mr Hunt’s evidence that he signed the Form 22A without first inserting the value of the advertising and marketing campaign amount. I am satisfied that Mr Hunt signed the Form 22A and authorised the amount to be spent, and can not rely upon a poor auction process and a low bids as an excuse to shy away from the terms and conditions of the listing agreement.
I find that the terms and conditions of the Form 22A do not include terms that should the property not sell at auction or reach the reserve price that Mr Hunt’s agreed costs for marketing and advertising shall not be required to be paid by him.
I find from the evidence that the listing agent acted appropriately in all the circumstances, both before and during the auction process, and after the auction during negotiations. I find that there was no evidence that would support a finding that as Mr Hunt alleges, the listing agent misled him.
I find that the evidence Mr Hunt presented to the tribunal of emails and the Form 22A indicates that Mr Hunt had been provided with a copy of the Form 22A earlier than he indicated. I find that the evidence suggests that once Mr Hunt removed the property for sale, Harcourts sought payment of the advertising costs. Harcourts had sent a letter to Mr Hunt demanding payment. Mr Hunt demanded an itemized account of the advertising costs, which was sent to him on 23 June 2014 at 9:15am.
Mr Hunt sent an email response on 23 June 2014 at 7:13pm, requesting a copy of the marketing campaign sheet he signed that was attached to the Form 22A. He states that he did not have a copy of that as it was attached to Harcourts copy and not his, where it noted the amount to be ‘payable on settlement’.
Harcourts responded to Mr Hunt’s email stating that they do not have a signed copy of Mr Hunt’s alleged amendment to the agreement to pay on settlement, but that they conceded that was agreed, as clearly they had not followed up payment for the invoice issued in April 2014.
In an email dated 17 June 2014 Harcourts send Mr Hunt another copy of the PAMDA Form 22A and stated clearly ‘please find attached another copy’ suggesting Mr Hunt had already been provided with a copy of the Form 22A and they were merely providing to him another copy for his records. I accept the evidence of Harcourts that they provided Mr Hunt with a copy of the Form 22A at the time it was signed and that they complied with all the relevant obligations on them under the applicable legislation.
I do not accept Mr Hunt’s submissions that he specifically noted on the marketing campaign document that payment of the advertising campaign and marketing costs were only to be paid if the property sold. I do not accept Mr Hunt’s suggestion that if the property did not sell the marketing costs would not be owed by him to Harcourts. I find that Harcourts offer to defer payment of the marketing campaign costs “until settlement” means that they were prepared to wait until a sale occurred before being paid. I do not accept that there was agreement that if Mr Hunt withdrew the property for sale from them, effectively frustrating settlement, that the payment would not be due and owing.
I find that the evidence of campaign track and the invoices relied upon by Harcourts substantiates that the amount of $6,616.50 was spent in marketing and media and press advertising. Harcourts on behalf of Mr Hunt have paid these costs and Harcourts should be reimbursed.
I find for the reasons I have given that the decision I have made is that Mr Hunt is liable for the marketing costs of $6,616.50 and the filing fee of $105.00, which must be paid to Harcourts. The order I propose to make is:

ORDER

That the Respondent pay to the Applicant the sum of $6,721.50 within fourteen days.