Hum and Fea Pty Ltd v Trueman
[2017] QCAT 381
•10 October 2017
CITATION: | Hum & Fea Pty Ltd v Trueman [2017] QCAT 381 |
PARTIES: | Hum & Fea Pty Ltd t/as Hum & Fea |
| v | |
| Christine Elizabeth Trueman (Respondent) | |
APPLICATION NUMBER: | MCDO43-17 |
PARTIES: | Christine Elizabeth Trueman (Respondent) |
APPLICATION NUMBER: | MCDO441-17 |
MATTER TYPE: | Other minor civil dispute matters |
HEARING DATE: | 27 June 2017 |
HEARD AT: | Southport |
DECISION OF: | Adjudicator Alan Walsh |
DELIVERED ON: | 10 October 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | In MCDO43/17: 1. Christine Elizabeth Trueman pay Hum & Fea Pty Ltd $20,260 for claim, $812.06 for interest, and $315.70 for filing fee, in total $21,387.76. In MCDO441/17: 1. The claim by Christine Elizabeth Trueman against Hum & Fea Pty Ltd is dismissed. |
CATCHWORDS: | MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – agent’s commission claim – where agent sole and effective cause of sale - where Appointment in writing provided for commission at 3% in the event of sale – where collateral oral agreement for seller to negotiate commission of less than 3% if required to ‘make deal work’ – whether collateral oral agreement avoided or varied the Appointment – where agreements for commission at less than 3% conditional on contracts settling – where agreements for lesser commission ended for non fulfilment of the condition – where seller subsequently signed contract at $892,000 which settled ABANDONMENT AND WAIVER – where seller did not negotiate for an agreement on commission of less than 3% on contract at $892,000 – whether seller thereby abandoned and waived right to do so – whether collateral oral agreement breached by agent MINOR CIVIL DISPUTE – MINOR DEBT CLAIM – seller’s claim to recover some or all of commission partly paid – whether agent’s commission claim limited by agreement – whether Appointment in writing providing for commission at 3% avoided or varied ESTOPPEL – whether agent estopped by promise or representation from recovering commission claimed TRADE PRACTICES – MISLEADING AND DECEPTIVE CONDUCT – UNCONSCIONABLE CONDUCT – whether agent disentitled from recovering commission for misleading and deceptive or unconscionable conduct Property Occupations Act 2014 (Qld), s 102, Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor [2016] HCA 26 Waltons Stores (Interstate) Ltd v Maher (1998) 164 CLR 387 |
APPEARANCES: | |
APPLICANT: | Ruth Fea, Director, Hum & Fea Pty Ltd |
RESPONDENT: | Christine Trueman |
REASONS FOR DECISION
Claims
Hum & Fea, a licensed real estate agent, by its Director Ruth Fea applies in Minor Debt Application 43/17 for an order that Christine Trueman pay $20,260, being the balance of commission of 3% ($26,760) payable pursuant to an Appointment, for selling her home at Sanctuary Cove (the property) on the Gold Coast, plus interest, filing fee and service fee.
The parties agree that Hum & Fea was the effective cause of the sale but the agent’s entitlement to be paid commission is in dispute.
In Minor Debt Application 441/17 which, by Order dated 24 May 2017, I consolidated for hearing together with Application 43/17, Christine Trueman claims refund of either $1,500 commission retained by the agent and overpaid or $6,500 for commission retained on the sale but not owing at all to Hum & Fea.
Facts and Evidence
The appointment
Ms Trueman engaged Hum & Fea as selling agent for the property on 12 July 2016 by signing a Form 6 Appointment[1] (the Appointment) for that purpose which Hum & Fea signed as well. The listed price range for sale of the property was $850,000 to $1,000,000.
[1]A standard from document used from 1 July 2016 by operation of the Property Occupations Act 2014 (Qld) and its transitional provisions.
According to its terms, the Appointment was exclusive for 60 days from 12 July 2016 to 9 September 2016, it would continue as an open listing after that,[2] commission payable in the event of a sale was 3% including GST[3] and the Appointment could be terminated at any time.[4]
[2]See Part 4 of the Form 6 Appointment dated 12 July 2016.
[3]See Part 7 of the Form 6 Appointment dated 12 July 2016.
[4]See Part 5 of the Form 6 Appointment dated 12 July 2016.
Insofar as termination prior to expiry of the Appointment was concerned, it provided that:
For appointment of 60 days or more … either party can end the appointment by giving 30 days written notice.
Pertinently, Clause 15 of the REIQ Essential Terms and Conditions attached to the Appointment, all of the pages of which were initialled by Ms Trueman, was a standard entire agreement provision by which the parties agreed that it superseded all prior negotiations or expressions of intent or understandings with respect to the Appointment of the agent.
The collateral oral agreement
The parties agree that, at the time of signing the Appointment, Ms Trueman queried the commission of 3% with Ms Fea and asked if ‘it’ could be negotiated ‘at any stage’ to which Ms Fea responded that, if Ms Trueman didn’t get the amount that she required to ‘make the deal work’ then ‘…it could be negotiated at the time.’[5] (the collateral oral agreement)
[5]See Response to Minor Debt Application in MCDO441/17, at paragraph 1 of the Attachment.
In context, ‘it’ clearly meant the amount of commission to be paid by agreement on a particular sale after negotiation if it was not to be the 3% commission which the Appointment stipulated but rather a lesser percentage according to the particular circumstances that might arise.
Conversely, commission at 3% would be payable unless a lesser percentage (or amount) were to be agreed between principal and agent pursuant to the collateral oral agreement for a particular sale contract ‘to work’ for Ms Trueman.
Interaction of the Appointment and Collateral Oral Agreement
I therefore see no inconsistency between the terms of the Appointment and the terms of the collateral oral agreement.
Commission would be payable as 3% of the purchase price in terms of the Appointment on any sale unless otherwise subsequently agreed at a lesser percentage after negotiation between the parties pursuant to the collateral oral agreement.
Validity of the appointment
The Appointment itself was clearly valid because Hum & Fea met the prerequisite criteria, the requirements set out in s 102 and s 103 of the Property Occupations Act 2014 (Qld) (‘the Act’) were satisfied, and the form of the Appointment[6] complied with the prescriptive requirements of the Act.[7]
[6]See Form 6 Appointment dated 12 July 2016.
[7]In particular, s 104 – s 105, s 107 – s 109 of the Property Occupations Act 2014 (Qld).
Ms Trueman, who is legally qualified and experienced, signed the Appointment without alteration or qualification. In doing so, she bound herself contractually with Hum & Fea according to its terms.
I find it to be both contextually and inherently improbable, as was contended by Ms Trueman, that the agent:
…was well aware and it had been discussed that at no time would the Vendor ever pay commission at that rate and it did not matter what amount or rate was inserted into the original Form 6 as all commission would be negotiated with each and every offer and eventual sale.[8]
[8]See Submissions in reply in MCDO441/17, at paragraph 29.
Transition to open listing
The Appointment exclusivity period expired on 9 September 2016. According to its terms, it then continued as an open listing.
Significantly, Ms Trueman did not at any stage give notice, whether in writing or otherwise, terminating the Appointment. Nor did the agent. The parties continued to be bound by it.
Introduction of Taylor
During the term of the Appointment, Hum & Fea introduced a prospective purchaser, Taylor, to Ms Trueman.
The following is a summary of offers and negotiations, ultimately culminating in a sale, which I have extracted from the chronologies of Ms Trueman and Ms Fea and screenshots of text messages passing between them in relation to Taylor’s purchase of the property.
The first Taylor offer
On or about 29 November 2016, Ms Fea informed Ms Trueman that the prospective purchaser, Taylor, was offering $855,000.00 for the property and a buggy, to which Ms Trueman replied by text message saying, “I want to clear $850k! The rest is up to you.”
First conditional agreement to limit commission
In accordance with the collateral oral agreement, Ms Fea accepted Ms Trueman’s stipulation that her ‘clearing’ $850,000 was necessary to make the deal ‘work’ on a purchase price of $855,000 and agreed to limit commission otherwise payable at 3% to just $5,000.
This agreement to limit commission otherwise payable at 3% to $5,000 was clearly, according to its terms, conditional on a contract between Ms Trueman and Taylor settling at $855,000 (‘the condition’).
Taylor and Ms Trueman signed a contract at $855,000 but Ms Trueman’s solicitors terminated it on or about 9 December 2016 on her instruction.
Condition unsatisfied
I find that the agreement to limit Hum & Fea’s commission to $5,000 for the purposes of that contract therefore ended on non-fulfilment of the condition that it settle.
The terms of the Appointment, including commission payable at 3% on settlement of a future contract, therefore continued to apply.
Negotiation resumed
Ms Fea, then in the process of embarking on an overseas cruise, informed Ms Trueman that Taylor was ‘in a pickle’ and ‘too stressed not to proceed’, having made arrangements to move to the property but being unable to do so because the contract had been terminated.
In a text message on 12 December 2016, there possibly being another purchaser waiting in the wings, Ms Fea asked that Ms Trueman not sign any other contract and that Ms Trueman should:
Let me know price of other contract and they should match it – I’ll match the other agent’s comm.. Happy days.
The second Taylor offer
In subsequent discussion with Ms Fea, Ms Trueman agreed to sign a new contract with Taylor for sale of the property at $885,000 with commission at ‘the same as the other agent’. However, that was superseded by further negotiation to which I now turn.
Second conditional agreement to limit commission
In a text message exchange on 12 December 2016, Ms Fea said she was sure that the other agent was charging 1.5% commission and proposed 1% plus GST to which Ms Trueman counter offered $6,500.
After further negotiation, Ms Fea text messaged Ms Trueman in the following terms:
Don’t want to lose a deal for buyers – if they agree to $885k, then I’ll do $6,500 – deal.
Ms Trueman agreed to this.
A second conditional agreement to limit commission on a contract at $885,000, on this occasion to $6,500, was thus formed.
However, just as with the first conditional agreement, the condition that the contract for $885,000 settle was never satisfied and that agreement ended for the same reason.
Again, the provisions of the Appointment, including as to commission payable at 3% on any future contract, unless subsequently agreed at a lesser percentage, continued to apply.
Circumstances leading to the third Taylor offer
At about this time, another prospective purchaser for the property emerged through a different agent which introduced an element of competition for the property hitherto entirely lacking.
A Melbourne based buyer offered $890,000 and, in a text message on 14 December 2016, Ms Trueman asked Ms Fea if Taylor would better that ‘slightly’.
The third Taylor offer
Not unexpectedly in the circumstances to which I have referred, Taylor then increased the offer to $892,000 which Ms Trueman accepted and the parties signed a new contract.
Request for confirmation of commission
Prior to signing the Taylor contract for $892,000, Ms Trueman sent Ms Fea a text message on 15 December 2016 querying a reference in the contract to another agent and asked:
Can u please email confirming commission please, k (sic) looks all ok.
Ms Fea, still overseas at the time, did not email Ms Trueman the requested confirmation of commission until the contract settled but she did respond by text message to Ms Trueman, concerning reference to the other agent, clarifying that:
It was an error Chris .. Venetian Real Estate was in blank contract I sent – all good.
No negotiation for further agreement to limit commission
Whether by text message or otherwise, Ms Trueman could have renewed negotiation with the agent to limit commission to less than 3% on $892,000 pursuant to the collateral oral agreement but she did not do so at any time in the ensuing month to settlement of the Taylor contract on 16 January 2017.
I find that Ms Trueman, the beneficiary of the collateral oral agreement, thereby abandoned and waived the right to negotiate a lesser commission in terms of the collateral oral agreement.
For completeness, I also find that Ms Trueman’s request that Ms Fea confirm commission by email was not a request to negotiate commission on $892,000 at a lesser percentage (or figure) than 3%.
Further, I find that the agent did not need to confirm commission because Ms Trueman already knew that it was 3% of the purchase price by operation of the Appointment unless otherwise limited by agreement following negotiation pursuant to the collateral oral agreement.
That Ms Trueman should not seek to limit the agent’s commission by negotiation on this occasion is unsurprising because, as previously stated in her text message to Ms Fea on 29 November 2016, she originally wanted to clear $850,000 and ‘the rest’ was up to Ms Fea.
In the result, Ms Trueman would now clear substantially more than $850,000 as the settlement arithmetic on a purchase price of $892,000 payable by Taylor, to which I will refer below, demonstrates.
No breach of collateral oral agreement
I therefore find that Hum & Fea therefore did not breach the collateral oral agreement and it is unnecessary for me to consider what the consequence might have been if, which is not the case, it had.
Commission at settlement
Upon settlement of the Taylor contract, Hum & Fea accounted by tax invoice to Ms Trueman for commission of $26,760.00 (including GST), calculated at 3% of the sale price of $892,000 against the deposit of $85,500 held in trust.
The agent remitted the deposit balance of $58,740 to Ms Trueman.
The tax invoice for commission included the following explanatory note:
Please note:
The original executed Contract for $855,000 with agreed commission of $5,000 was terminated and the subsequent verbal offer of $885,000 with agreed commission of $6,500 did not proceed. Due to no verbal or written negotiations regarding commission on the final executed Contract for $892,000, the commission rate of 3% inclusive GST as per the Form 6, the signed original agreement has been set.
I find that this footnote is factually accurate. It clearly and correctly explained the calculation of commission according to the terms of the Appointment and the agent’s entitlement to be paid at 3% of the contract price of $892,000.
Seller cleared $871,240 on the Taylor contract
Before conveyancing costs of her solicitors, about which there is no evidence, Ms Trueman cleared $871,240 after agent’s commission at 3%, an outcome substantially better by $21,240 than the $850,000 referred to in her text message to Ms Fea on 29 November 2016.
Partial commission refund with rights reserved
Upon a demand for payment and threat of legal proceedings for damages otherwise, Hum & Fea paid Ms Trueman $20,260 from the retained 3% commission of $26,760 on or about 18 January 2017 with express reservation of rights pending the outcome of recovery proceedings to be commenced.[9]
[9]Email Ruth Fea to Christine Trueman dated 18 January 2017.
Ms Trueman does not challenge the efficacy of Hum & Fea’s reservation of rights to bring these proceedings for recovery of $20,260 in this Tribunal.
Ms Trueman’s claim and response
In her Minor Debt Claim against Hum & Fea (MCDO441/17), Ms Trueman asserts the following at Part B, page 2 of her application:
a)The Appointment (i.e. the Form 6 Appointment) was varied;
b)Three later commission agreements were entered into;
c)The last of the three commission agreements is legally binding on the parties;
d)Hum & Fea is not entitled to rely on the Appointment as it cannot be reinstated;
e)If the last of the three commission agreements is set aside, the second last in time stands and limits the commission claim to $5,000;
f)In that case, Hum & Fea have been overpaid $1,500;
g)The Claim is for $1,500 overpaid plus filing fee, interest and ‘all other costs;
h)That Hum & Fea pay her $6,500 within 14 days in the alternative.
I reject these assertions because they are not supported by the facts and evidence to which I have referred.
In her Response to the Hum & Fea claim (MCDO43/17) filed several months before her Minor Debt Claim MCDO441/17, Ms Trueman asserted that:
a)By agreement between principal and agent to vary the Appointment, $5,000 was the commission payable to Hum & Fea on the first Taylor contract which was terminated for non satisfaction of special conditions;[10]
b)The parties agreed $6,500 subsequently for a new contract with Taylor if signed;[11]
c)Another buyer offered $890,000;[12]
d)Ms Trueman subsequently signed a contract with Taylor ‘...even agreeing to pay higher commissions so that Hum & Fea obtained some commission rather than none at all if Ms Trueman had signed the contract with the Melbourne buyer’.[13]
[10]See Response at page 3 and attachment to Response at paragraph 5.
[11]See attachment to Response at paragraphs 11 – 16.
[12]See attachment to Response at paragraph 18.
[13]See attachment to Response at paragraph 20.
The facts and evidence to which I have referred do not support a finding of variation of the Appointment as asserted in the Response. I therefore reject that assertion.
On the contrary, there was only ever one Appointment because each of the conditional agreements negotiated between Ms Fea and Ms Trueman pursuant to the collateral oral agreement which might limit, to less than 3%, the commission otherwise payable under the Appointment for a particular contract, ended for non satisfaction of the condition of settlement.
Ms Trueman’s assertion that she signed the Taylor contract ‘even agreeing to pay higher commission to ensure the agent was paid something rather than signing the Melbourne buyer’s contract’ is also unfounded.
I reject that assertion because it is contradicted by the fact that the Melbourne buyer’s offer was for $2,000 less than the final Taylor offer and by the fact that that there was no agreement negotiated between seller and agent on a lesser commission than 3% payable in terms of the Appointment on the final Taylor contract which did settle.
Ms Trueman’s written submissions
Ms Trueman’s annotated written submissions, filed with the Tribunal pursuant to order 4 of the Orders made on 27 June 2017, run to 35 unnumbered pages of unnumbered paragraphs which I myself have paginated on a working copy.
Amongst other things, Ms Trueman asserts in her submissions at page 8:
(a)Abandonment, promissory estoppel, unconscionability, variation and waiver of the right to commission at 3%;
At page 16:
(b)Misleading and deceptive conduct by the agent;
At page 19:
(c)That the parties intended that each separate commission agreement replace the previous one;
(d)That the modification to the original agreement was only in relation to that part of the agreement relating to commission;
(e)Both parties agreed that the commission rate of 3% was never going to be agreed or applied;
(f)There was never any agreement to re-instate the 3% commission;
At page 20:
(g)The ‘all good’ response of Ms Fea in exhibit CT 26 of Ms Trueman’s exhibits led Ms Trueman to assume that the ‘commission contract’ was agreed;
(h)The criteria for promissory estoppel in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 are satisfied in her case;
At page 21:
(i)The evidence supports a finding that Hum & Fea waived its right to commission at 3% under the Appointment by subsequent conduct on ‘at least three occasions’ to accept commission at a lesser amount;
(j)The agent was informed that Ms Trueman would not at any time ever agree to pay the agent commission at 3%;
(k)The commission provision in the Appointment was ‘removed and modified on at least three occasions’;
(l)The agent did not act honestly;
At page 22:
(m)The agent did not say the commission would be 3%;
At page 23:
(n)The agent failed to complete section 4.1 of the Form 22a as to how the service was to be performed and s 134(1) of the Property Agents and Motor Dealers Act (‘PAMDA’) was not satisfied so the agent is disentitled to commission under s 140 PAMDA;
At page 24:
(o)A fourth commission agreement with the agent was ‘conditional’ and not in writing so it was unenforceable;
(p)The prerequisite criteria in section 104 of the Property Occupations Act are not met so the Appointment is ineffective.
(q)The evidence is that part 7 of the Form 6 (the Appointment) was removed and subsequent commission agreements were terminated so no commission whatsoever is payable;
At page 25:
(r)There was no written agreement between the parties and therefore no entitlement to commission;
(s)The agent agreed to vary and abandon her legal right to any commission;
(t)The agent waived her right to commission which Ms Trueman accepted;
(u)A promissory estoppel lies against the agent because her agreement to limit commission to $6,500 was relied on by Ms Trueman;
At page 26:
(v)Misrepresentation that the agent would accept commission at $6,500 for ‘the second contract’ avoids the Appointment;
(w)The Appointment was ambiguous;
At page 28 onwards:
(x)There are terms to be implied in an informal contract or where the parties have not attempted to spell out the full terms of a contract;[14]
(y)At no time did the agent seek to reinstate the commission at 3%;[15]
(z)The Property Occupations Act requires a statement of both the percentage and dollar amount calculated on a percentage basis;[16]
(aa)If there is a finding that ‘the fourth commission agreement’ was conditional (as asserted by the agent) then it is open to find that there was no commission agreement whatsoever;[17]
(bb)There is no evidence that the ‘initial agreement’ (i.e. the Appointment) was intended to be reinstated;[18]
[14]Trueman submissions at page 28.
[15]Trueman submissions at page 29.
[16]Trueman submissions at pages 30 – 31.
[17]Trueman submissions at page 34.
[18]Trueman submissions at page 35.
I reject these submissions because, again, they are unsupported by the facts and evidence to which I have referred. In particular:
a)The submissions of abandonment, promissory estoppel, unconscionability, variation and waiver by the agent of the right to commission at 3%, are simply not made out on the facts and evidence to which I have referred.
b)The agent, whose evidence I accept in preference to that of Ms Trueman’s wherever there is a conflict, did not engage in misleading and deceptive conduct. I find that Ms Trueman was not misled or deceived on what the commission payable on the final Taylor contract would be at settlement.
c)Contrary to what Ms Trueman submits, there were no separate commission agreements. There was only ever one continuing Appointment for commission purposes as each of the conditional agreements limiting commission to less than 3% ended when contracts did not settle.
d)There was never any ‘modification to the original agreement in relation to that part of the agreement relating to commission’ as submitted by Ms Trueman.
e)The parties did not agree that the commission rate of 3% was never going to be agreed or applied as submitted by Ms Trueman.
f)The 3% commission provision in the Appointment was never removed in the first place so Ms Trueman’s submission that there was no agreement that it be reinstated is fallacious.
g)The ‘all good’ response of Ms Fea in exhibit CT 26 of Ms Trueman’s exhibits neither led nor misled Ms Trueman to assume that the ‘commission contract’ was agreed. On the contrary, the words ‘all good’ did not relate to a ‘commission contract’ at all. Rather, they related to Ms Trueman’s querying a reference to another agent unconnected with the Taylor contract, which, as Ms Fea explained, was erroneous. The error was rectified.
h)As I have said, the ‘all good’ response had nothing to do with commission and was not promissory in character. The criteria for promissory estoppel in Waltons Stores (Interstate) Ltd v Maher[19] are therefore not satisfied as Ms Trueman submits is the case.
[19](1998) 164 CLR 387.
i)Hum & Fea did not waive its right to commission at 3% under the Appointment, whether by subsequent conduct on ‘at least three occasions’ to accept commission at a lesser amount or otherwise.
j)I reject the submission that the agent was informed that Ms Trueman would not at any time ever agree to pay the agent commission at 3%.
k)The commission provision in the Appointment was never ‘removed and modified on at least 3 occasions’ as Ms Trueman submits was the case.
l)The agent did not act dishonestly as Ms Trueman submits. On the contrary, in preferring Ms Fea’s evidence as I do, I find that the agent did act honestly. The submission is simply not supported by the facts and evidence to which I have referred.
m)Whilst, as is submitted by Ms Trueman, it is true that ‘the agent did not say the commission would be 3%’ upon settlement, the agent had no need to say that because it was self evident. That is what was agreed in the Appointment which subsisted throughout.
n)The provisions of the Property Agents and Motor Dealers Act to which Ms Trueman refers have no application in this case. The agent complied with the requirements of the Property Occupations Act and is therefore not disentitled from commission at 3% in terms of the Appointment as Ms Trueman submits.
o)There was no ‘fourth commission agreement with the agent’, whether conditional or otherwise.
p)The Appointment was not ineffective, whether for alleged non-compliance with s 104 of the Property Occupations Act or otherwise.
q)Part 7 of the Appointment was never removed.
r)The Appointment was in the form of a written agreement between the parties and subsisted, unaltered, throughout, contrary to Ms Trueman’s submission.
s)The agent did not, as is submitted by Ms Trueman, agree to vary and abandon the right to commission at 3% in terms of the Appointment.
t)The facts and evidence do not support Ms Trueman’s submission that Ms Fea’s agency waived the right to commission at 3%. It did not and Ms Trueman could not accept a waiver that never occurred.
u)The agent did not agree to limit commission to $6,500, or, for that matter, to any other figure reckoned at less than 3% commission on the Taylor contract which settled. Therefore, no promissory estoppel lies against the agent in this respect.
v)There was no misrepresentation that the agent would accept commission at $6,500 for the ‘second contract’ so the Appointment was not thereby avoided. As I have already found, the conditional agreement to limit the agent’s commission to $6,500 on a contract for $885,000 ended for non satisfaction of the condition that it settle. The Appointment subsisted unaltered.
w)Ms Trueman’s submission that the Appointment was ambiguous is unsupported by the facts and evidence to which I have referred. It was not ambiguous in any respect.
x)Contrary to Ms Trueman’s submission, there was no informal contract where the parties had not attempted to spell out its full terms with the consequence that terms had to be implied. The facts and evidence to which I have referred do not support that assertion.
y)Contrary to what Ms Trueman submits, the agent did not need to ‘seek to reinstate the commission at 3%’ because it applied, unaltered, in terms of the Appointment which subsisted throughout.
z)It is not correct to say that the Property Occupations Act requires a statement of both the percentage and dollar amount calculated on a percentage basis. The Appointment could not possibly refer to a dollar figure where the parties did not then know what the sale price for the property would actually be in due course.
aa)Contrary to Ms Trueman’s submission, there was no ‘fourth commission agreement’ which was conditional so that no commission agreement whatsoever existed. The Appointment, which continued throughout, provided for the agent’s commission at 3% and that is the rate of commission that applied at settlement of the Taylor contract.
bb)Contrary to what Ms Trueman submits, it was never the case that there was an ‘initial agreement’ (i.e. the Appointment) which was never intended to be reinstated. The Appointment subsisted, unaltered, throughout.
I have also considered Ms Trueman’s paginated twelve page reply submissions and reject them insofar as they are inconsistent with the facts and evidence to which I have referred and the agent’s submissions to which I now turn.
The agent’s submissions
Hum & Fea’s written submissions,[20] which I accept because they are consistent with the facts and evidence to which I have referred, include the following:
a)The Form 6 Appointment which applied in this case was never varied;
b)Hum & Fea is not precluded by promissory estoppel from recovery of commission at 3% on the Taylor contract which settled; and
c)Hum & Fea at no stage led Ms Trueman to the assumption that she would pay less than 3% commission on the Taylor contract which settled.
[20]Filed as an attachment to a Form 7 in 43/17 on 11 July 2017 and see also the attachment to the Form 7 filed by Hum & Fea in 441/17 on 19 June 2017.
In elaboration on the issue of promissory estoppel, Hum & Fea note that Ms Trueman refers to the three key elements of the doctrine:
a)first, an assumption by a party;
b)second, an inducement of the assumption by the other party, and
c)third, detriment to the original party by reliance on the assumption.[21]
[21]See the Agent’s submissions in the attachment to the Form 7 in 43/17 filed on 11 July 2017, paragraph 31.
Hum & Fea submit that whether an assumption was made by Ms Trueman is a matter for the Tribunal and that the doctrine of promissory estoppel cannot be applied in the present case because the second and third elements of the doctrine are not satisfied on the facts of this case.[22] I accept that submission.
[22]Ibid, paragraph 32.
Further discussion on estoppel
On the evidence and facts to which I have referred, the only assumption to which Ms Trueman might reasonably have been led was that the commission provisions of the Appointment continued to apply unless any lesser commission was negotiated pursuant to the collateral oral agreement and the particular contract settled, which never occurred.
It cannot be credibly argued that Ms Fea’s ‘all good’ statement in her response to Ms Trueman’s text message sent on 15 December 2016 related to commission or that it was promissory in character. Neither was the case.
Recent High Court authority
Though determined on facts not analogous to those in the present case, the High Court, in Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd & Anor[23] fairly recently confirmed that a representation must be clear, precise and unambiguous in order to ground a claim for estoppel.[24]
[23][2016] HCA 26.
[24]Ibid, [35] per French CJ, Kiefel and Bell JJ. See also [142] per Keane J.
In that case, a landlord’s representation that a tenant would be ‘looked after’ at the end of a commercial lease was found not to meet the criteria for promissory estoppel grounding a claim for an order for renewal of the lease for a further term.
The majority of the High Court upheld the appeal by Crown Melbourne Limited against the decision of the Victorian Supreme Court of Appeal to remit the tenant’s claim back to VCAT for further hearing and finally decided that Crown Melbourne Limited had no liability whatsoever to the former tenant.
No promissory estoppel
In the present case, there was simply no representation or promise on commission at all on the Taylor contract at $892,000 which settled.
If the statement ‘all good’ by Ms Fea in response to Ms Trueman’s text message on 15 December 2016 had been made in respect of commission, which it was not, the question would then be whether, in context, it was clear, precise and unambiguous, but that question simply does not arise on the facts in this case.
Conclusion
I therefore conclude that the Taylor contract which did settle was not the subject of any agreement, representation, or promise, by the agent, that commission at less than 3% payable in terms of the Appointment would be paid on settlement of the final Taylor contract. Ms Trueman knew that the commission would be 3%.
Orders
It follows that Hum & Fea’s claim for $20,260, being the outstanding balance of commission on the final Taylor contract, succeeds and Ms Trueman’s claim for a partial or complete retained commission refund fails.
I allow Hum & Fea’s claim at $20,260.00 for commission, interest on that amount from 18 January 2017 to 10 October 2017 in the amount of $812.06 and the filing fee of $315.70, in total $21,387.76.
I do not allow the claimed Bailiff’s fee because it has not been vouched for by Hum & Fea.
I make the following Orders:
In MCDO43/17:
1.Christine Elizabeth Trueman pay Hum & Fea Pty Ltd $20,260 for claim, $812.06 for interest, and $315.70 for filing fee, in total $21,387.76.
In MCDO441/17:
2.The claim by Christine Elizabeth Trueman against Hum & Fea Pty Ltd is dismissed.
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