I & E Holdings Pty Ltd t/as Ray White Wellington Point v Coak
[2014] QCATA 321
•27 October 2014
| CITATION: | I & E Holdings Pty Ltd t/as Ray White Wellington Point v Coak [2014] QCATA 321 |
| PARTIES: | I & E Holdings Pty Ltd t/as Ray White Wellington Point (Applicant/Appellant) |
| v | |
| Roslyn Dulcie Coak (Respondent) |
| APPLICATION NUMBER: | APL336-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 27 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 25 July 2014 is set aside. 4. Roslyn Dulcie Coak shall pay I & E Holdings Pty Ltd t/as Ray White Wellington Point $3,044.86 within 28 days of order. 5. If I & E Holdings Pty Ltd t/as Ray White Wellington Point has complied with the decision of 25 July 2014, Roslyn Coak shall also pay I & E Holdings Pty Ltd t/as Ray White Wellington Point $993.45 within 14 days of the date of order. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where appointment to sell house – where marketing plan – where expenses charged in accordance with marketing plan – where expenses deducted from agent’s final commission – where claim to be relieved from payment – where tribunal ordered agent pay seller - whether grounds for leave to appeal Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Ms Coak engaged I & E Holdings Pty Ltd t/as Ray White Wellington Point to sell her house at Birkdale. After settlement, Ms Coak’s lawyers sent Ray White a cheque for commission that was $3,379.61 short. Ms Coak applied to the tribunal for relief from payment of that amount. Ray White filed a counter application for payment of the $3,379.61. Two Justices of the Peace, sitting in the minor disputes jurisdiction of the tribunal ordered Ms Coak pay Ray White $993.45.
Ray White wants to appeal that decision. It says the learned Justices misunderstood Ms Coak’s application and also failed to understand that Ms Coak had paid Ray White the disputed amount and now wanted a refund. It says the learned Justices failed to understand that Ms Coak owed this amount for commission on the sale of the Birkdale house.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[3] An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[4]
[3]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126.
[4]Chambers v Jobling (1986) 7 NSWLR 1 at 10.
These facts are not disputed. Ms Coak signed a Form 22a Appointment to Act. The appointment authorised Ray White to sell the house by auction. The appointment included a marketing plan that, not surprisingly, totalled $3,379.61. Ms Coak sent Ray White a cheque for $3,379.61 for the marketing in April 2014. The house sold before auction. Ms Coak’s lawyers sent Ray White a cheque for its commission less $3,379.61.
Ray White is correct in its submission to the appeals tribunal that Ms Coak is not really asking the tribunal to relieve her from paying commission but is asking for a reimbursement of the advertising costs she has already paid. The tribunal is obliged to act in a way that is just and informal[5]. Ray White knew, and made submissions, on the issues it had to meet. There was no detriment to either party in the learned Justices hearing the claim as framed; that is a claim for reimbursement of costs she did not have to pay.
[5]QCAT Act s 3(b).
In her original application, Ms Coak submitted she was not liable for the balance of the commission because:
a) The advertising and marketing were not done according to the contract.
b) She never received an invoice or details of what marketing was to be done.
c) She did not want the property to go to auction.
d) If she pays the claimed commission, she will have to file a claim for reimbursement.
e) Although she requested a detailed account, she did not receive one.
The learned Justices found[6] that Ms Coak accepted the marketing plan by signing it. They accepted that Ray White incurred the costs of newspaper advertising, placing a sign out the front, and photographs[7]. They did not accept the realestate.com charges because Ray White could not produce an invoice[8]. They did not accept the auctioneer’s invoice because there was no evidence of ‘industry standard and auctioneer terms’[9].
[6]Transcript page 1-47, lines 27 – 35.
[7]Transcript page 1-48, lines 8 – 26.
[8]Transcript page 1-48, lines 28 – 30.
[9]Transcript page 1-48, lines 30 – 39.
I consider the learned Justices were in error in their treatment of the auctioneer’s costs. Clause 11.4 of Form 22a allows Ray White to subcontract the auction and requires Ms Coak to pay the amount specified in Item F(4) of the Schedule. Item F(4) in the Schedule states ‘see attached’. The Marketing Plan had an amount of $590. Ray White provided a copy of the auctioneer’s invoice[10]. It was obviously an expense incurred by Ray White and it was entitled to pass it on to Ms Coak. Ms Coak should pay for the auctioneer. She should also pay GST of $59.00 on that sum.
[10]Tax invoice Certa Cito Pty Ltd to Ray White Wellington Point dated 18 May 2014.
I also consider the learned Justices in error in deducting $10 from the cost of the sign. In passing the invoice on to Ms Coak, Ray White had to charge GST. The GST was, of course, $10.
The principal error of the learned Justices was, however, in how they dealt with the final amount. They ordered Ray White pay Ms Coak when it was clear from the evidence that Ms Coak had deliberately short-paid Ray White to avoid a claim for reimbursement. The appropriate order should have been that Ms Coak pay Ray White the amount the learned Justices considered were legitimate claims for advertising. On my amended figures, Ms Coak should pay Ray White $3,044.86 ($2,385.86 as found by the learned Justices + $10 GST on the sign invoice + auctioneer’s fee of $590 + GST of $59 on the auctioneer’s fee).
Leave to appeal is granted and the appeal allowed. The decision of 25 July 2014 is set aside. Roslyn Dulcie Coak shall pay I & E Holdings Pty Ltd t/as Ray White Wellington Point $3,044.86 within 28 days of order. If I & E Holdings Pty Ltd t/as Ray White Wellington Point has complied with the decision of 25 July 2014, Roslyn Coak shall also pay I & E Holdings Pty Ltd t/as Ray White Wellington Point $993.45 within 14 days of the date of order.
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