Jones v Knobel & Davis Property Services P/L - [2008] QCA 105

SUPREME COURT OF QUEENSLAND

CITATION:

Jones v Knobel & Davis Property Services P/L [2008] QCA 105

PARTIES:

KATHLEEN JONES
(appellant/defendant)
v
KNOBEL & DAVIS PROPERTY SERVICES PTY LTD
ACN 057 143 192
(respondent/plaintiff)

FILE NO/S:

Appeal No 9811of 2007
DC No 430 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

2 May 2008

DELIVERED AT:

Brisbane

HEARING DATE:

18 April 2008

JUDGES:

Muir JA, White and Lyons JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – REQUIREMENT OF APPOINTMENT IN WRITING – where the appellant contracted to sell the land to a purchaser introduced to the appellant by the respondent by a contract of sale dated 2 June 2004 – where the appellant and respondent entered into an agency agreement on 2 June 2004 – where s 140 Property Agents and Motor Dealers Act 2000 (Qld) disentitles a person to recover commission for the performance of an “activity” as a real estate agent unless the person had been properly appointed at the time the activity was performed – where the respondent acted as a real estate agent prior to its appointment in writing – where the respondent only claimed remuneration for work done after having been duly appointed – whether the respondent is prevented by s 140 Property Agents and Motor Dealers Act 2000 (Qld) from recovering its commission

Acts Interpretation Act 1954 (Qld), s 14
Property Agents and Motor Dealers Act 2000 (Qld), s 128, s 133, s 134, s 140

Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31, cited
Greg Roughsedge Realty Pty Ltd v Whitecross & Anor [2001] 2 Qd R 353: [2001] QCA 426, cited
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2, cited

COUNSEL:

JW Peden for the appellant
KT Magee for the respondent

SOLICITORS:

Bennett & Devery for the appellant
Philip Shakespeare for the respondent

Introduction

MUIR JA: The respondent, a licensed real estate agent carrying on business on the Gold Coast commenced proceedings in the District Court against the appellant seeking payment of a commission of $76,120 allegedly payable by the appellant to the respondent in respect of the sale of land owned by the appellant. The statement of claim alleged that by a contract of sale dated 2 June 2004, the appellant contracted to sell the land to a purchaser introduced to the appellant by the respondent in accordance with an agency agreement between the appellant and the respondent, also dated 2 June 2004.

On 8 October 2007, judgment in the sum of $76,120 plus interest and costs was given in the District Court in favour of the respondent.

The only point in issue on the appeal is whether the respondent, having performed work as a real…

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: [2008] QCA 105
Decision Date: 2 May 2008

CaseChat Overview and Summary

Jones sued Knobel & Davis Property Services P/L in relation to a contract of sale for land. The contract was entered into on 2 June 2004, and on the same day, an agency agreement was executed between Jones and Knobel & Davis. Section 140 of the Property Agents and Motor Dealers Act 2000 (Qld) stipulates that a real estate agent cannot recover commission unless they were properly appointed in writing at the time the activity was performed. Knobel & Davis acted as a real estate agent before receiving their written appointment and only sought remuneration for work done after the appointment. The central issue before the court was whether Knobel & Davis was barred from recovering its commission under section 140 of the Property Agents and Motor Dealers Act 2000 (Qld).

The court found that Knobel & Davis was not precluded from recovering its commission. The statutory requirement for a written appointment in section 140 did not prevent Knobel & Davis from claiming remuneration for services performed after the appointment was made. The court reasoned that the act did not expressly prohibit recovery of commission for services rendered post-appointment. The court concluded that Knobel & Davis's actions in claiming commission for services after their appointment did not contravene the statutory provision.

The court dismissed the appeal, with Jones ordered to pay Knobel & Davis's costs. The reasoning was that the written appointment requirement did not extend to bar recovery of commission for services performed after the appointment. The court found that the statutory language did not support such an interpretation and that Knobel & Davis was entitled to recover their commission for services rendered post-appointment.

Orders

Orders of the court

Appeal dismissed with costs

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:	Jones v Knobel & Davis Property Services P/L [2008] QCA 105
PARTIES:	KATHLEEN JONES (appellant/defendant) v KNOBEL & DAVIS PROPERTY SERVICES PTY LTD ACN 057 143 192 (respondent/plaintiff)
FILE NO/S:	Appeal No 9811of 2007 DC No 430 of 2005
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	2 May 2008
DELIVERED AT:	Brisbane
HEARING DATE:	18 April 2008
JUDGES:	Muir JA, White and Lyons JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed with costs
CATCHWORDS:	PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – REQUIREMENT OF APPOINTMENT IN WRITING – where the appellant contracted to sell the land to a purchaser introduced to the appellant by the respondent by a contract of sale dated 2 June 2004 – where the appellant and respondent entered into an agency agreement on 2 June 2004 – where s 140 Property Agents and Motor Dealers Act 2000 (Qld) disentitles a person to recover commission for the performance of an “activity” as a real estate agent unless the person had been properly appointed at the time the activity was performed – where the respondent acted as a real estate agent prior to its appointment in writing – where the respondent only claimed remuneration for work done after having been duly appointed – whether the respondent is prevented by s 140 Property Agents and Motor Dealers Act 2000 (Qld) from recovering its commission Acts Interpretation Act 1954 (Qld), s 14 Property Agents and Motor Dealers Act 2000 (Qld), s 128, s 133, s 134, s 140 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31, cited Greg Roughsedge Realty Pty Ltd v Whitecross & Anor [2001] 2 Qd R 353: [2001] QCA 426, cited Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2, cited
COUNSEL:	JW Peden for the appellant KT Magee for the respondent
SOLICITORS:	Bennett & Devery for the appellant Philip Shakespeare for the respondent