Kulara v Holland

DISTRICT COURT OF QUEENSLAND

CITATION:	Kulara v Holland [2008] QDC 294
PARTIES:	KULARA HOLDINGS PTY LTD (ACN 113 298 347) as Trustee for the KULARA DISCRETIONARY TRUST (Appellant) v RICK HOLLAND (Respondent)
FILE NO/S:	133 of 2008
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	12 December 2008
DELIVERED AT:	Cairns
HEARING DATE:	26 November 2008
JUDGE:	Bradley DCJ
ORDER:	That the appeal be dismissed
CATCHWORDS:
COUNSEL:	Mr J Sheridan for the appellant Mr W Elliott for the respondent
SOLICITORS:	Williams Graham Carman for the appellant Preston Law for the respondent

Introduction

1. On 2 May 2008 judgment was given in the Magistrates Court, Cairns in favour of the respondent against the appellant for real estate agent’s commission in the sum of $26,345.  The appellant argues that the Magistrate erred in concluding that the respondent was entitled to his commission.

Facts

1. There was little dispute about the facts in this case.  The appellant was the owner of Kulara Farm which is an 11.83 hectare avocado orchard at Yungaburra on the Atherton Tablelands.  In 2006 the appellant it was endeavouring to sell Kulara Farm.  The respondent is a licensed real estate agent.

1. The following is a relevant chronology:-

·    13 Jul 2006 -     The appellant appoints the respondent as agent to sell the property.

·    5 Oct 2006 –     The purchaser inspects the property with the respondent.

·    11-18 Oct 2006 – First contract signed for $950,000.

·    6 Nov 2006 –    Purchaser terminates first contract.

·    17 Nov 2006 – The appellant appoints a second real estate agent and a second contract with the purchaser is signed for $940,000.

·    19 Dec 2006 –   Second contract settles.

1. The purchaser named on both contracts of sale is Melissa Jayne Nott, although essentially she and her husband were acting together in inspecting the property negotiating conditions of purchase and deciding to buy it.  Tragically, Mr Nott died prior to the hearing of the claim in the Magistrates Court.

1. The respondent gave evidence on his own behalf at the hearing and Mrs Nott and an auctioneer, Mr Ford, gave evidence for the appellant.  There was no evidence from anyone representing the appellant or from the second real estate agent.

1. It was Mrs Nott’s evidence that she and her husband purchased a number of properties for investment throughout their marriage and that the purchase of the properties would be a joint decision as was the case with respect to Kulara Farm even though it was purchased in Mrs Nott’s name alone.

1. Mrs Nott said that the property first came to their attention when they observed an advertisement for an auction sale of the farm machinery and other items in the Tablelander newspaper whilst holidaying on the Atherton Tablelands.  This led to Mr and Mrs Nott considering that the property was possibly for sale.  At this time Mr and Mrs Nott went with a friend who lived close to the property for a drive around Kulara Farm.  They thought it was “a very beautiful…