Kedcorp Pty Ltd v Jenkins B78/1999

[2000] HCATrans 714

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B78 of 1999

B e t w e e n -

KEDCORP PTY LTD

Applicant

and

PETER DAVID JENKINS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 24 NOVEMBER 2000, AT 12.31 PM

Copyright in the High Court of Australia

MR A.P.J. COLLINS:   If your Honours please, I appear for the applicant.  (instructed by Robert Bax & Associates)

MR W.A. ISDALE:   If your Honours please, I appear for the respondent.  (instructed by Crown Solicitor for Queensland)

KIRBY J:   Yes, Mr Collins.

MR COLLINS:   Your Honours, the complaint which the applicant has is in respect of paragraphs [13] and [14] of the decision of the Court of Appeal which is at page 45 of the application book.

KIRBY J:   Yes.

MR COLLINS:   The complaint can be summarised as follows.  The applicant was found to act as a real estate agent when it is contended that the activities which he performed were undertaken at a time when he did not hold any agency from any party at all and, secondly, the finding is that the expectation of any fee, gain or reward, which is a necessary element of the definition of “real estate” under the Act, was not, it would seem, a fee, gain or reward from the person for whom he was allegedly acting.

HAYNE J:   This is a case, is it not, then, Mr Collins, which depends upon the application of the Act to the particular facts and circumstances that were proved at first instance?

MR COLLINS:   Yes, your Honour, but it does involve the query as to whether one can be an agent for the purpose of the Act and other legislation in other States or one does not have authority at the time.

HAYNE J:   Yes.

MR COLLINS:   That is the point that we raise, your Honour.

KIRBY J:   Yes, press on.

MR COLLINS:   Yes, your Honour.  The issue itself, your Honours, has been referred to once before by this Court in the Freehold decision.  In our outline of submissions passages were referred to from the decision of Justice Menzies, but in the majority was also Justice Walsh.  The relevant parts of the judgment are at page 441 to 443.  Now, Freehold involved different factual circumstances but the essence of, in my submission, both the majority and the minority was that to act as a real estate agent you must be acting as an agent for somebody when you carry out the activities of which you are accused of doing.

Now, in this instance, all that the applicant did was find or locate prospective purchasers.  None of those purchasers gave him any authority to do anything and none of those purchasers paid any fee to him at all.  None of those purchasers granted him any power to negotiate or convey offers.  That was not his role.  Any funds which it ultimately received, were from the vendor and I do not understand it to be contended that when it was carrying out its activities that it was doing so as agent for the vendor because the agency agreement – or it is called a promotional agreement in the case but if we call it the agency agreement for the purposes of the argument, it was not signed until the time when the vendor themselves or himself or herself actually signed the contract.

The only basis upon which it was alleged, in our submission, that the applicant was acting as an agent was because the applicant was allegedly partaking of a conjoint activity with L. J. Hooker, but the alleged conjoint activity was not part of the Crown case, was not part of the particulars of the charge at all.  Therefore, there is that aspect and the combination is that the Court of Appeal seems to find that because there was an expectation of reward generally, that is, not necessarily from the person who retained you or did not retain you, that that was sufficient to come within the confines of the expectation of any fee, gain or reward within the meaning of the Act.

KIRBY J:   Would not your theory of the Act that you are propounding lead to a camel, horses and elephant riding roughshod through the Act and its purpose, which is to prevent people who are not licensed acting as real estate agents?

MR COLLINS:   With respect, no, your Honour, because we say it is the converse.  It is the use of extremely broad wording in the definition that is being utilised by, one would seem, the Crown or those who are against the activities of the applicant to bring the applicant within the confines of the Act and, therefore, prevents its activities.  If one is not acting as agent for someone else, one cannot be a real estate agent at the time.  It really is as simple as that, your Honour, in our submission.

KIRBY J:   Yes.  It is a relatively simple proposition.  It is a question of which construction of the Act is correct.  It just seems to me that your theory of the Act really undermines what the Act is intending to do:  to prevent strangers or people who are not the subject of the examinations and courses and licensing and character references and all the other things that real estate agents have to go through to get into that position, enjoying the benefits of the Act simply because of the way in which they conduct their “real estate practice”.

MR COLLINS:   Your Honour, in our submission, one, if there is deficiencies with the legislation as drafted, it is a matter for the Parliament to narrow or make it more direct rather than using an extremely broad definition to capture people that do not come within it.  In that respect, I should inform your Honours that it is our understanding that the Queensland legislation is to be repealed and replaced by the Property Agents and Motor Dealers Act next year, but looking at section 128 of the proposed Act, it also uses the wording “as an agent for others for reward”.

KIRBY J:   Is there any material amendment to the Act, because that would be a consideration relevant to withholding special leave, if the Act is going to be repealed?

MR COLLINS:   Your Honour, I do not know other than to say that section 128 of the proposed Act specifies that “a real estate agent’s licence authorises the holder of the licence to perform the following activities as an agent for others for reward” and then has six subcategories and it seems to be framed in the terms of what a real estate agent’s licence actually authorises.  Whilst the definition under the Auctioneers and Agents Act section 2 really says, “This is what a real estate agent is” as opposed to what a licence authorises.

We would say it still has significance because your Honours will see in the outline of submissions, I think it is at page 65, we have referred to other legislation in other States of Australia where terminology, not the same, but the use of “acting for others or as an agent” is also included.  So we say the decision of this Court would have some significance in other jurisdictions in Australia.

KIRBY J:   Yes.  Is there anything else that you wish to say that is not already in your outline, which we have read?

MR COLLINS:   No, your Honour.  The only other aspect is in respect to the duplicity point.  We raise nothing further in respect of the decisions on the point but note that the specific wording of the particulars allege that it must have acted as a real estate agent in respect of each transaction and if the wording is such ‑ ‑ ‑

HAYNE J:   Am I right in understanding that the Court of Appeal was of the view that an amendment could have been made without prejudice to your client producing a single charge which fitted the events and circumstances?

MR COLLINS:   That is so, your Honour, under 19(2)(b), yes.

HAYNE J:   Yes.

MR COLLINS:   I have nothing further, your Honour.

KIRBY J:   Yes, thank you.  Yes, the Court does not need your assistance, Mr Isdale.

This application is dismissed.  Justice Hayne will give the reasons of the Court.

HAYNE J:   The applicant for special leave to appeal seeks to agitate two points, one about the application of a statutory prohibition against acting as an estate agent and the other about duplicity of charges.

The first turns upon the particular facts and circumstances of the case and raises no point of general principle warranting a grant of special leave to appeal.  The second is a point which does not arise given the Court of Appeal’s conclusion that the charge brought against the applicant could properly have been amended in a way which would work no prejudice to it but would constitute a single charge properly reflecting both the evidence and the conduct alleged.  For those reasons special leave should be refused.

KIRBY J:   Do you seek costs, Mr Isdale?

MR ISDALE:   Yes, if your Honour pleases, I ask for an order for costs in relation to this matter.

KIRBY J:   Yes.  Is there any reason why the normal order should not be made, Mr Collins?

MR COLLINS:   No, your Honour.

KIRBY J:   The application is dismissed with costs.

AT 12.42 PM THE MATTER WAS CONCLUDED