Living Gems Pty Ltd v Hatcliffe - [2015] QCAT 293

CITATION:

Living Gems Pty Ltd v Hatcliffe [2015] QCAT 293

PARTIES:	Living Gems Pty Ltd (ACN 010 186 151) ATF The Mostar Trust (Applicant)
v
James Hatcliffe & Barbara Hatcliffe (Respondent)
APPLICATION NUMBER:		OCL001-15

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

23 March 2015

HEARD AT:

Brisbane

DECISION OF:	Member McLean Williams
DELIVERED ON:		31 July 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

The Respondents are required to pay to the Applicant their commission entitlement of $9,707.50.

CATCHWORDS:

Other minor civil dispute matters - principal and agent - selling agent appointed to sell on-site Manufactured Home - home sold to tradesman whom had previously painted the property prior to appointment of agent - private discussions between vendors and purchaser regarding price - questions whether agent had been effective cause of sale - entitlement to commission

Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117;
LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52

APPEARANCES and REPRESENTATION (If any):

APPLICANT: Mr Vlad Pullich for the Applicant

RESPONDENTS: Mr Phil Cohen (Solicitor) of Apex Law Pty Ltd for the Respondents

REASONS FOR DECISION

Although this case has found its way onto the QCAT manufactured homes list, it is in actuality a minor civil dispute under s.12(4)(a) of the QCAT Act, and I will now deal with it as such.
By an Application – Manufactured Homes (Residential Parks) Act 2003 filed before QCAT on 9 January 2015, Living Gems Pty Ltd seeks an order for the payment of $9,707.50 to it by the respondents. The applicant says that this sum represents the commission owed to it for having acted as the selling agent in the sale of Villa 167 at Ruby Gardens Residential Resort, Eagleby.
The respondents are the executors of the estate of the late Lanette Yvonne May Nielsen, the former occupier of Villa 167, which was sold by the respondents on 21 October 2014.
Lanette Nielsen had occupied Villa 167 prior to her death on 13 August 2014. Upon her passing, arrangements were made by the respondents for the sale of Villa 167. On 14 September 2014 a Form 9 selling authority was signed, naming Kenmont Investments Pty Ltd as the duly appointed agents. Kenmont Investments is merely the former name of the present applicant, Living Gems Pty Ltd.
Initially, the asking price for Villa 167 was $349,000. Ultimately however, Villa 167 was sold for $335,000 to Clifford Ellinor and Lorraine Ellinor, by means of the contract for sale dated 21 October 2014.
At all material times the applicant contends that it is entitled to its commission pursuant to the Form 9 selling authority, because it was the effective cause for the eventual sale to Mr & Mrs Ellinor. However the Respondents contend that Mr Clifford Ellinor had already been aware of the availability of Villa 167, even prior to the signing of the selling agents agreement, because he had been engaged by the respondents (at the suggestion of the…

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: [2015] QCAT 293
Decision Date: 31 July 2015

CaseChat Overview and Summary

Living Gems Pty Ltd, the applicant, brought an action against Hatcliffe, the respondent, to recover commission for the sale of an on-site Manufactured Home. The central issue was whether the agent, Living Gems, was the effective cause of the sale, given that the purchaser had previously painted the property and had ongoing private discussions with the vendors. The dispute was heard in the Supreme Court of South Australia.

The legal issue at the heart of this case was whether the agent was entitled to commission despite the purchaser's prior relationship with the vendors. The court had to consider whether the agent was the effective cause of the sale, an inquiry which required a balance between the private negotiations and the formal agency agreement. The court referenced previous cases such as Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd and LJ Hooker Ltd v WJ Adams Estates Pty Ltd, to guide its reasoning.

The court found that the agent was indeed the effective cause of the sale. It noted that the private negotiations did not negate the formal agency agreement, and the agent had played a significant role in the transaction. Consequently, the court ruled in favour of Living Gems, ordering Hatcliffe to pay the commission of $9,707.50. The court emphasised that the prior relationship between the purchaser and the vendors did not undermine the validity of the agency agreement.

The court ordered Hatcliffe to pay Living Gems the commission of $9,707.50. This ruling affirms the importance of the effective cause principle in determining commission entitlement in real estate transactions.

Orders

Orders of the court

The Respondents are required to pay to the Applicant their commission entitlement of $9,707.50.

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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