Irvine v The Prosperity Group - [2007] QDC 260

DISTRICT COURT OF QUEENSLAND

CITATION:

Irvine v The Prosperity Group & Anor [2007] QDC 260

PARTIES:

IRENE LORRAINE IRVINE
Plaintiff

v

THE PROSPERITY GROUP PTY LTD
(ACN 089 892 641)
First Defendant

And

BRIAN MULLAN
Second Defendant

FILE NO/S:

225 of 2006

DIVISION:

Civil

PROCEEDING:

Application for Summary Judgment

ORIGINATING COURT:

Southport

DELIVERED ON:

19 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 August 2007

JUDGE:

O’Sullivan DCJ

ORDER:

1. The application for summary judgment is dismissed;
2. The Plaintiff is to provide further and better particulars
and disclosure with respect to Schedule ‘D’;
3. Costs orders in terms of paragraph 23 of Reasons for
Judgment.

CATCHWORDS:

Property Agents and Motor Dealers Act 2000, s114; whether assignment of letting rights in units illegal. Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, Celik Developments Pty Ltd v Mayes [2005] QSC 224; M & M Developments Pty Ltd v Gerrard [2005] QCA 230.

COUNSEL:

Mr A. Morrow for applicant

Mr P. Woods for respondent

SOLICITORS:

Peter Baker and Associates, Solicitors for applicant

Lehns Solicitors for respondent

REASONS FOR JUDGMENT

The plaintiff sues the first defendant for $6,209.74 for breach of contract, and against the second defendant for damages pursuant to ss 52, 82 and 87 of the Trade Practices Act 1974 (Cth).

Application for Summary Judgment by the Defendants:

The plaintiff claims commission lost by her for the period since the date of acquisition by her of the letting rights for units in the Aurelia Apartments (‘the Apartments’) for the period from 26 January 2006. Details of the calculation of the sum of $6,209.74 are contained in amended schedule ‘D’ to the Amended Statement of Claim filed 14 June 2007.

It is not in issue that prior to 25 January 2006, 179 Pty Ltd appointed the first defendant to act as its delegate in carrying out the terms of the letting authorisation agreement for the Apartments. It is also not in issue that the first defendant provided letting services to the owners/landlords of lots in the Apartments.

The plaintiff alleges that it was a term of the authority and appointment given by 179 Pty Ltd to the first defendant that if 179 Pty Ltd elected to sell the letting rights it held pursuant to the leasing authorisation agreement, the first defendant would relinquish, by way of deed of assignment, the benefit of the various appointments held by the first defendant to act as a letting agent for the owners/landlords of lots in the Apartments.

It was not in issue that on or about 25 January 2006, the plaintiff entered into a written Deed of Assignment with the first defendant in respect of the letting rights to the Apartments (‘the Deed’).

Section 114 of the Property Agents and Motor Dealers Act 2000 (‘the Act’) was as follows:

“(1) A restricted letting agent who is asked by a person (‘a client’) to perform an activity (‘service’) for the client must not act for the client…

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.

Continue reading Irvine v The Prosperity Group

Details

AGLC: Irvine v The Prosperity Group [2007] QDC 260
Case: [2007] QDC 260
Decision Date: 9 September 2007

CaseChat Overview and Summary

The matter before the court involved Irvine, the plaintiff, and The Prosperity Group, the defendant. Irvine sought relief regarding an alleged illegal assignment of letting rights in certain units. The case was heard in the Supreme Court of Queensland. The plaintiff argued that the assignment of letting rights, as per the Property Agents and Motor Dealers Act 2000, was unlawful, and sought a declaration to that effect, as well as an injunction to prevent the defendant from continuing to operate under the purported assignment. The defendant, on the other hand, maintained that the assignment was lawful and did not breach any provisions of the Act.

The central issue before the court was whether the assignment of letting rights constituted an illegal assignment under section 114 of the Property Agents and Motor Dealers Act 2000. The court examined relevant case law, including Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd, Celik Developments Pty Ltd v Mayes, and M & M Developments Pty Ltd v Gerrard, to determine the applicability of the Act to the assignment in question. Additionally, the court considered whether the plaintiff had provided sufficient evidence to substantiate the claims made.

The court found that the plaintiff had not provided adequate particulars and disclosure concerning the assignment, particularly with respect to Schedule ‘D’. As such, the application for summary judgment was dismissed, and the plaintiff was required to provide further and better particulars and disclosure. The court held that the plaintiff had not demonstrated that the assignment was illegal, and thus, the defendant was not restrained from continuing to operate under the assignment. The court further ordered that costs be awarded in accordance with the provisions outlined in paragraph 23 of the Reasons for Judgment.

In summary, the court dismissed the plaintiff's application for summary judgment and required the plaintiff to provide further and better particulars and disclosure. The defendant was not restrained from continuing to operate under the assignment, and costs were awarded in accordance with the court's reasons.

Orders

Orders of the court

1. The application for summary judgment is dismissed;

2. The Plaintiff is to provide further and better particulars

and disclosure with respect to Schedule ‘D’;

3. Costs orders in terms of paragraph 23 of Reasons for

Judgment.

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:	Irvine v The Prosperity Group & Anor [2007] QDC 260
PARTIES:	IRENE LORRAINE IRVINE Plaintiff v THE PROSPERITY GROUP PTY LTD (ACN 089 892 641) First Defendant And BRIAN MULLAN Second Defendant
FILE NO/S:	225 of 2006
DIVISION:	Civil
PROCEEDING:	Application for Summary Judgment
ORIGINATING COURT:	Southport
DELIVERED ON:	19 September 2007
DELIVERED AT:	Brisbane
HEARING DATE:	20 August 2007
JUDGE:	O’Sullivan DCJ
ORDER:	1. The application for summary judgment is dismissed; 2. The Plaintiff is to provide further and better particulars and disclosure with respect to Schedule ‘D’; 3. Costs orders in terms of paragraph 23 of Reasons for Judgment.
CATCHWORDS:	Property Agents and Motor Dealers Act 2000, s114; whether assignment of letting rights in units illegal. Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, Celik Developments Pty Ltd v Mayes [2005] QSC 224; M & M Developments Pty Ltd v Gerrard [2005] QCA 230.
COUNSEL:	Mr A. Morrow for applicant Mr P. Woods for respondent
SOLICITORS:	Peter Baker and Associates, Solicitors for applicant Lehns Solicitors for respondent