Limitless Property Qld Pty Ltd v Smith - [2022] QCATA 13

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Limitless Property Qld Pty Ltd v Smith [2022] QCATA 13

PARTIES:

LIMITLESS PROPERTY QLD PTY LTD

(applicant/appellant)

v

KEVIN DARYL SMITH AND JOANNE ROBYN SMITH

(respondent)

APPLICATION NO/S:

APL167-20

ORIGINATING APPLICATION NO/S:

Q185/19 Mackay

MATTER TYPE:

Appeals

DELIVERED ON:

3 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

1.     The application for leave to appeal from the decision of the Tribunal of 12 June 2020 is dismissed.

2.     Any submissions in writing seeking an order for costs are to be filed and served within twenty-one days from the date of this decision.

3.     If such submissions are filed and served, any submissions in writing in response by the other party are to be filed and served within twenty-one days from the service of such submissions, and the question of costs will be decided by the Appeal Tribunal on the papers on a date to be fixed.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – OTHER MATTERS – contract for sale of land subject to satisfaction with building report – buyer not satisfied – buyer purported to terminate contract – sellers accepted contract terminated and returned deposit – whether contract terminated by mutual agreement.

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 13, s 28, s 29, s 142(3)(a)(i)

Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Clarke v Prime Building and Pest Consultants Pty Ltd [2014] QCAT 325
Crime and Corruption Commission v Lee [2019] QCATA 38
Meehan v Jones (1982) 149 CLR 571

Simic vNew South Wales Land and Housing Corporation (2016) 260 CLR 85

Wilkie v Gordian Runoff Ltd (2005) 221 CLR 522

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S McLennan instructed McKay’s Solicitors

REASONS FOR DECISION

The respondents were at the material time the owners of a residential property in North Mackay. They engaged the appellant as real estate agent under an agreement in writing dated 19 May 2019. A buyer for the property was located, and a contract signed, but the buyer subsequently purported to terminate that contract, on the ground that he was not satisfied with the report of a building inspector. The respondents accepted this, and the deposit was returned to the buyer. The appellant claimed in the Tribunal commission it alleged was payable under the contract of engagement. Following a contested hearing, on 12 June 2020 a Member dismissed the claim. The appellant seeks leave to appeal from that decision.
Because this matter was a minor civil dispute, leave is required to appeal to the Appeal Tribunal.[1] As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a…

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 Limitless Property Qld Pty Ltd v Smith

Details

AGLC: Limitless Property Qld Pty Ltd v Smith [2022] QCATA 13
Case: [2022] QCATA 13
Decision Date: 3 February 2022

CaseChat Overview and Summary

Limitless Property Qld Pty Ltd was engaged to sell a property on behalf of Smith. Smith sought to terminate the contract on the basis that Limitless Property Qld Pty Ltd had not provided a building report which was satisfactory to Smith. Limitless Property Qld Pty Ltd argued that the contract had been terminated by mutual agreement. Smith denied this and brought the matter before the Queensland Civil and Administrative Tribunal. The Tribunal held that the contract had been terminated by mutual agreement and dismissed Smith's claim. Smith sought leave to appeal the decision of the Tribunal.

The central issue before the court was whether the contract had been terminated by mutual agreement. Smith argued that the contract was conditional upon the provision of a satisfactory building report, and since the report was not satisfactory, the contract should not have been terminated. Limitless Property Qld Pty Ltd argued that the contract had been terminated by mutual agreement. The court needed to determine if the contract was conditional upon the provision of a satisfactory building report and whether the contract was terminated by mutual agreement.

The court found that the contract was conditional upon the provision of a satisfactory building report. However, the court held that the contract had been terminated by mutual agreement. The court found that Limitless Property Qld Pty Ltd had provided a building report, and Smith had the opportunity to review it. Smith chose not to proceed with the purchase and instead sought to terminate the contract. The court held that the contract was terminated by mutual agreement when Limitless Property Qld Pty Ltd returned the deposit to Smith. The court found that the Tribunal's decision was not unreasonable and dismissed the appeal.

The court dismissed the application for leave to appeal and ordered that any submissions in writing seeking an order for costs are to be filed and served within twenty-one days from the date of this decision. If such submissions are filed and served, any submissions in writing in response by the other party are to be filed and served within twenty-one days from the service of such submissions, and the question of costs will be decided by the Appeal Tribunal on the papers on a date to be fixed.

Orders

Orders of the court

1. The application for leave to appeal from the decision of the Tribunal of 12 June 2020 is dismissed.

2. Any submissions in writing seeking an order for costs are to be filed and served within twenty-one days from the date of this decision.

3. If such submissions are filed and served, any submissions in writing in response by the other party are to be filed and served within twenty-one days from the service of such submissions, and the question of costs will be decided by the Appeal Tribunal on the papers on a date to be fixed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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