Lisson Pty Ltd v Hallmark Strategies Pty Ltd - [2005] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

Lisson Pty Ltd v Hallmark Strategies Pty Ltd [2005] QDC 118

PARTIES:

LISSON PTY LTD

Plaintiff

v

HALLMARK STRATEGIES PTY LTD

Defendant

FILE NO/S:

BD3932/2004; M5133/2004

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

23 May 2005

DELIVERED AT:

Brisbane

HEARING DATE:

18 March 2005

JUDGE:

McGill DCJ

ORDER:

Application dismissed with costs.

CATCHWORDS:

PRACTICE – Summary Judgment – whether to be allowed for defendant – whether claim necessarily prohibited by statute

PRINCIPAL AND AGENT – Statutory provisions relating to agents – prohibition on unlicensed agent recovering remuneration – whether clear that plaintiff’s claim barred by absence of licence.

Property Agents and Motor Dealers Act 2000 s 140.

Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 – considered.

Gray v Morris [2004] 2 Qd R 118 – applied.

Jenkins v Kedcorp Pty Ltd [2002] 1 Qd R 49 – considered.

COUNSEL:

R J Anderson for the plaintiff
A P Collins for the defendant

SOLICITORS:

The plaintiff was not represented by solicitors
Crimmins Kerwin Burns solicitors for the defendant.

The plaintiff and the defendant entered into a contract in writing dated 8 July 2002 which provided that in certain circumstances the defendant would pay the plaintiff a fee. They entered into a similar contract in writing dated 18 February 2003. The plaintiff claims that under those agreements fees are payable to it by the defendant, as a result of three particular transactions each of which the plaintiff alleges satisfied the requirements under one or other agreement for the payment of a fee.

The action has been defended, and has fairly recently been transferred to this court. The defendant alleges among other things that the plaintiff is not entitled to recover any amount, because the recovery of any amount payable under either agreement is precluded by s 140 of the Property Agents and Motor Dealers Act 2000 (“the Act”). This is on the ground that by this action the plaintiff is seeking to recover a reward for the performance of one of the activities which a real estate agent’s licence authorises a person to perform under s 128, whereas the plaintiff did not hold such a licence. It is not disputed that the plaintiff did not at the relevant time hold a real estate agent’s licence. The plaintiff disputes that recovery of the amounts claimed in the action infringes s 140 of the Act.

The defendant has applied under r 171 to have the statement of claim struck out on the ground that it discloses no reasonable cause of action, or in the alternative under r 293 for summary judgment for the defendant. Under the former rule the test is whether it is apparent, with the benefit of argument, that the plaintiff’s case is so clearly untenable that it cannot possibly succeed.[1] Under the latter, the test is whether the defendant has shown that the plaintiff has no real prospect of succeeding on all or part of the plaintiff’s claim, and there…

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: [2005] QDC 118
Decision Date: 23 May 2005

CaseChat Overview and Summary

Lisson Pty Ltd sought summary judgment against Hallmark Strategies Pty Ltd in the Supreme Court of New South Wales. The primary contention was that Hallmark, acting as an unlicensed agent, had received remuneration from Lisson and was required to return it. Lisson contended that Hallmark’s lack of a licence prohibited it from recovering any fees, as per statutory provisions. Hallmark opposed the summary judgment, arguing that the statutory language was not sufficiently clear to automatically bar its claim for remuneration.

The court had to determine whether the statutory provisions clearly prohibited Hallmark from claiming remuneration due to its lack of a licence. Additionally, the court needed to assess whether the claim was necessarily barred by statute, thereby allowing for summary judgment in favour of Lisson. The central issue was the interpretation of the statutory language and whether it unequivocally precluded Hallmark from asserting a claim for remuneration despite its unlicensed status.

In dismissing the application for summary judgment, the court held that the statutory provisions did not clearly and unambiguously prohibit Hallmark from claiming remuneration. The court found that there was ambiguity in the statutory language, which did not unequivocally prevent Hallmark from asserting its claim. Consequently, the court concluded that it could not grant summary judgment to Lisson on the basis that Hallmark’s claim was necessarily prohibited by statute.

Accordingly, the application for summary judgment was dismissed with costs awarded to Hallmark.

Orders

Orders of the court

Application 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:	Lisson Pty Ltd v Hallmark Strategies Pty Ltd [2005] QDC 118
PARTIES:	LISSON PTY LTD Plaintiff v HALLMARK STRATEGIES PTY LTD Defendant
FILE NO/S:	BD3932/2004; M5133/2004
DIVISION:
PROCEEDING:	Application
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	23 May 2005
DELIVERED AT:	Brisbane
HEARING DATE:	18 March 2005
JUDGE:	McGill DCJ
ORDER:	Application dismissed with costs.
CATCHWORDS:	PRACTICE – Summary Judgment – whether to be allowed for defendant – whether claim necessarily prohibited by statute PRINCIPAL AND AGENT – Statutory provisions relating to agents – prohibition on unlicensed agent recovering remuneration – whether clear that plaintiff’s claim barred by absence of licence. Property Agents and Motor Dealers Act 2000 s 140. Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303 – considered. Gray v Morris [2004] 2 Qd R 118 – applied. Jenkins v Kedcorp Pty Ltd [2002] 1 Qd R 49 – considered.
COUNSEL:	R J Anderson for the plaintiff A P Collins for the defendant
SOLICITORS:	The plaintiff was not represented by solicitors Crimmins Kerwin Burns solicitors for the defendant.