Knobel & Davis Property Services Pty v. Jones

DISTRICT COURT OF QUEENSLAND

CITATION:

Knobel & Davis Property Services Pty  v Jones [2007] QDC 241

PARTIES:

Knobel & Davis Property Services Pty Ltd
ACN (057 143 192)
 (Plaintiff)
v
Kathleen Jones
 (Defendant)

FILE NO:

430 of 2005

PROCEEDING:

Civil trial

DELIVERED ON:

8 October 2007

DELIVERED AT:

Southport

HEARING DATES:

1 and 2 October 2007

JUDGE:

C.F. Wall Q.C.

ORDER:

Judgment for the Plaintiff with costs

CATCHWORDS:

PRINCIPAL AND AGENT – right to commission - real estate agent – validity of appointment – whether appointed before sale of property.

Legislation referred to:
Property Agents and Motor Dealers Act 2000 ss 128 (1), 133 (1) and (8), 135 (1), 140, schedule 2 definitions “sell”, “reward”
Acts Interpretation Act 1954, s 38 (4)

Text:
Duncan, Real Estate Agency Law in Queensland (4^th Edition), page 208 dist. 

COUNSEL

Plaintiff – Ms K. T. Magee
Defendant – Mr M. Campbell

SOLICITORS:

Plaintiff – Phillip Shakespeare
Defendant – Bennett and Devery

HIS HONOUR:  The plaintiff sues the defendant for $76,120 for real estate agent's commission plus interest.  The claim is based on the sale by the defendant of her land and buildings at 3028-3030 Gold Coast Highway, Surfers Paradise.

The defendant agreed that the plaintiff, through its agent, Allan McKay, introduced her to Robert Badolotti, whose company purchased the land.  See page 70 of the transcript.

Mr Campbell, of counsel for the defendant, submitted that both Mr McKay and the defendant gave their evidence in an honest and forthright manner, but that I should prefer the evidence of the defendant.  In fact, I prefer the evidence of Mr McKay for reasons which I will refer to shortly. 

Three issues arise according to the defendant. They are (1) whether a copy of the document appointing the plaintiff the defendant's real estate agent (PAMD form 22(a)), exhibit 2, was provided as the defendant submitted it should have been, to the defendant at the time it was signed by the defendant. See section 133(8) of the Property Agents and Motor Dealers Act 2000(the Act). (2) whether Mr McKay discussed with the defendant whether the appointment as agent was to be for a sole agency or an exclusive agency. See section 135(1) of the Act. And (3) whether Exhibit 2 is a valid appointment, given that it was signed by the defendant some time after the plaintiff was concerned in the sale of the land in the sense of acting for the defendant in finding a purchaser who would buy the property. See sections 140, 128(1) and 133(1) of the Act. This issue does not really depend on any question of credit.

Generally, I accept Mr McKay's account of events and relevant dates.  I thought he had a better recollection than the defendant.  His evidence was consistent with diary entries made at the time, Exhibit 5.  I thought the defendant's recollection of events and dates was relatively poor and her evidence was quite disingenuous in a number of respects.

I am satisfied that their first meeting was…