Living Gems Pty Ltd v Hatcliffe
[2015] QCAT 293
•31 July 2015
| 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 | ||
| 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; | |
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 selling agent) in order to paint the interior of Villa 167.
In addition, the respondents say that once a decision had been made by Mr & Mrs Ellinor to purchase the property, the question of the ultimate purchase price was a matter left by the agent[1] for Mr & Mrs Ellinor and the Hatcliffes to merely work out between themselves and free of any influence by the agent. The respondents contend that the facts of this case are therefore consanguine to those in Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117, where the agent failed to show that his efforts continued to exert influence on the purchaser at the completion of the transaction.[2]
[1]The respondents refer, in particular, to paragraph 4 in a written statement filed before QCAT given by Ms Tracey Osborne.
[2] [2005] NSWCA 117, per Stein AJA at [39], & [43] – [46].
During the hearing of this matter, oral evidence was received on behalf the applicant from Ms Tracey Osborne, the selling agent, and also from Mr Clifford Ellinor. Although the respondents had foreshadowed no intention to lead any evidence in these proceedings,[3] late in the hearing I gave leave for oral evidence to be led from Mr Trevor Marsh, who is a son-in-law of the late Lynette Nielsen, despite Mr Marsh having by then sat through (and thus having heard) all of the evidence prior to his own testimony.
[3] Transcript, page 2 at lines 35-36.
Tracey Osborne
In her evidence, Ms Tracey Osborne indicates that she works for Living Gems Resorts as an employed agent handling the sale of manufactured homes within the Ruby Gardens residential resort. Shortly after the death of Ms Nielsen the respondents had contacted her with a view to arranging for the sale of Villa 167. Even prior to the Form 9 agent’s authority having been signed, Ms Osborne had recommended that certain changes should be made to Villa 167, in order to enhance the prospects for a quick sale. One of the changes recommended was for the interior to be repainted, into more neutral colours, thought likely to appeal to an “average” buyer. For this task Ms Osborne also recommended the services of a Mr Clifford Ellinor, who is a commercial painter who had previously undertaken a number of similar jobs within the Ruby Gardens residential resort. That advice was accepted by the vendors.
A number of weeks after Villa 167 had been repainted, Ms Osborne said that Clifford Ellinor came back to see her asking about any properties available for sale within Ruby Gardens residential resort that had the dual attributes of a double garage and a reasonably-sized garden. Ms Osborne gave to Mr Ellinor a list of three properties that met that description, being Villas 182, 252, and 167. Ms Osborne said that Mr Ellinor went to examine each of Villa 182 and 252, and reported back to her that neither of these would be suitable. Ms Osborne told the Tribunal that she then suggested that he should take a look at Villa 167, because she felt that it to be exactly what he was looking for.
Ms Osborne said that she then went up to Villa 167 with Mr Ellinor and worked quite hard whilst in the property to persuade him that the garden was exactly what he had been looking for, and that the double garage was large enough to accommodate all of the equipment required as part of his house painting business. Ms Osborne said that she also queried whether Mr Ellinor’s wife Lorraine had ever been inside Villa 167, and Cliff Ellinor told her that, whilst Lorraine had previously delivered painting supplies to him when he was working at Villa 167, she had never previously set foot inside the property. Ultimately, Ms Osborne took both Cliff & Lorraine Ellinor up to inspect Villa 167 on 18 October 2014 and at that point Ms Osborne says that Mrs Ellinor “immediately fell in love with it”. The Ellinors then advised her that they wished to purchase Villa 167, if a suitable price could be agreed with the Vendor.
In relation to the ultimately important question of price, Ms Osborne gave the following evidence:
“When we were walking through, they were talking and they knew it was on for $349,000 and I know I’d told the family it would probably go for less than that, but the solicitor had agreed to put it on there and it was negotiable. And he said to me, Tracey, would [sic] do you actually think they will do? And I said, well, I’ve told everybody all the way along the price was negotiable and I said – and I actually think that it would be negotiable and I said, but how negotiable? I don’t know. I said I will be prepared to put whatever you say forward and see if we can actually get it for that price. I said but I don’t know what it will go for. Cliff, at that stage, made comment that he would have thought – he thought he might ring Tania, who he would then approach, and see whether or not she was able to sell it at a better price so that he would know a little bit more what he was doing. And that’s as far as I know what went on there. So, anyway, I said, okay, I’m – you know, I’m off now, because it was – it was late in the afternoon. I said, you know, I’m finishing 4 o’clock. I said I’ll see you on Tuesday morning.”[4]
[4]T.1-14, lines 40 – T.1-15 line 5. See too the written statement of evidence by Ms Osborne, particularly at paragraph 4.
Clifford Ellinor
Mr Ellinor told the Tribunal that he had painted Villa 167, prior to 14 September 2014, and that it had been Tracey Osborne who had put the owners on to him. Mr Ellinor also informed the Tribunal that when he painted Villa 167 he was definitely not interested in purchasing it, and he only formed a view about possibly buying it three or four weeks later,[5] when he inspected Villa 167 with his wife, and the agent[6]. Mr Ellinor also agreed that the only reason that he even inspected Villa 167 as a prospective purchaser was because of Tracey Osborne’s urging.[7] Under cross-examination, Mr Ellinor could not be moved from his stating that he had never given so much as a moment’s thought to the possibility of purchasing Villa 167 whilst he was painting the property, and he affirmed that it was only after Tracey Osborne had taken him through it with his wife that he made a decision to attempt to purchase it.[8]
[5] T.1-38, line 45
[6] T.1-39, line 27
[7] T.1-40, line 39
[8] T.1-43, line 14, line 36, line 44-45; T.1-44, line 01-10.
Under cross-examination, it was put to Mr Ellinor that he may have had a telephone conversation with Trevor and Tania about the purchase price, yet Mr Ellinor could not recall that.[9] However, when the matter was again put to him, he gave the following evidence:
“[Q: Well, when do you believe you agreed on the eventual price?] - - - Probably in the – in the office. … it wouldn’t have been on the phone.
… / [Q: but the questions I’m asking you now revolve around when you actually agreed on a – on the price and how you agreed upon it?] - - - well, it would’ve been – well, I would say it would have been in the office.
[Q: why do you say that?] - - - well, because I’m sure – I think that Trevor was there and we were talking in the office and I’m sure it would have been in the office. [Q: and was Trevor and Tania present at that time?] - - - Yep. And we put our pen to paper. [Q: I’m not talking about when you signed the piece of paper. You say you went up to the office after you had a cup of coffee at your place with Tania and Trevor and then you signed the contract. … What I was referring to is when you actually agreed on the price?] - - - That would have been in the office. [Q: But you’re not sure?] - - - No. That was – it would have been in the office when I think about it because we signed their papers there in the office.
. . . / [Q: So, how long before you actually signed that contract – which I understand you signed in the office in front of Tracey?] - - - Yeah. Well, that contract would have been signed in front of Tracey. She would have been there. [Q: Yes. She – because - - - ?] - - - Because we wouldn’t have signed the contract otherwise. [Q: That’s right. She witnessed it. I – we don’t have a problem with that one?] - - - Yep. She was the witness. [Q: Now, how long before that moment of signing that contract did you agree on the price?] - - - It would have been there and then before we signed the contract.[10]”
[9] T.1-45, line 3.
[10] T1-44, line 36 – 1-46, line 45.
Trevor Marsh
Very late in the proceedings and after the evidence that had been given by Mr Ellinor that has been excerpted, Mr Cohen, acting on behalf of the respondents, sought leave to lead rebuttal evidence from Mr Trevor Marsh, whom it was claimed had been present during the conversation between Tania and Trevor and Mr Clifford Ellinor in relation to the purchase price. The respondent had not previously filed any statements of evidence and Mr Marsh had sat in the back of the courtroom for all of the evidence led by the applicants. I allowed the evidence of Mr Marsh to be received, notwithstanding the strong objections to that course that were raised by the applicant.
In his evidence, Mr Marsh said that, rather than his being a participant in a conversation between himself his wife Tania and Clifford Ellinor, that he had been at home on a Saturday evening when Mr Ellinor had contacted him by telephone to ask whether the sellers were prepared to enter into a private sale for Villa 167. Mr Marsh said that his wife Tania was not a part of that conversation because she was busy cooking dinner at the time. Mr Marsh said that a purchase price was agreed between himself and Mr Clifford on the telephone.[11] Yet, when asked by Mr Cohen what the agreed price had been, Mr Marsh gave the following evidence:
“I think it must have been around about 330 – something or other. Not sure now. [Q: Would it have been 335?] - - - Yeah.[12]”
[11] T1-53, line 44.
[12] T1-53, lines 01-06.
Assessment of the Evidence
In my view, it seems clear from the evidence of Mr Ellinor that, at the time when he was originally engaged by the respondents to paint Villa 167 (a time prior to the signing of the agency agreement), he and his wife had given absolutely no thought to the possibility of their purchasing Villa 167. Similarly, the best available conclusion is that it was only after Tracey Osborne had taken Mr and Mrs Ellinor to Villa 167 and had persuaded them as to its attributes that a decision was made by them to purchase it. I am satisfied therefore that the applicant’s employee Ms Tracey Osborne was the effective cause for the introduction of the eventual purchasers to Villa 167.
The respondent correctly identifies that it is not however sufficient for an agent to merely introduce a property to a prospective purchaser, and that the agent must continue to be instrumental in bringing about the final agreement, in the sense of the agent exerting an influence on the resolution of the agreed purchase price. Although it was put to Mr Ellinor by Mr Cohen in the passages of evidence that I have excerpted that the price may have been agreed over the telephone in a prior conversation with Trevor and Tania (thus absent any influence by Tracey Osborne), Mr Ellinor was firm in saying that the price was not agreed until the point when the contract was actually signed, in Tracey Osborne’s office, on Tuesday 21 October 2014. I infer from that evidence that Tracey Osborne must have exerted some influence on what became the ultimately agreed price.
As to the contrary evidence given by Trevor Marsh: in the end, I am just not persuaded by it. Although his evidence was that Mr Ellinor had contacted him on a Saturday evening and spoken to him on the telephone whilst his wife was cooking the dinner and the purchase price had then been agreed between them, Trevor Marsh could not recall the agreed sum, at least not until this was offered to him by Mr Cohen. I find that quite surprising – especially given that the price was supposedly the centrepiece of their telephone discussion. Similarly, I observe that, although Mr Cohen had previously put to Mr Clifford Ellinor that the price may have been “discussed” on the telephone, it was not ever squarely put to Clifford Ellinor that he had in fact agreed to a price of $335,000, during a telephone conversation, on a Saturday evening, with Mr Trevor Marsh. That really needed to be put to Mr Ellinor, yet it was not. Finally, it again bears observing that Mr Marsh was present in the courtroom during the giving of all of the other evidence preceding his own testimony, such that a degree of circumspection must apply when evaluating it. I cannot help but now feel that Mr Marsh’s evidence was informed by the immediate circumstances of his giving his testimony, such that I repose no confidence in the accuracy of his version of events.
Ultimately, I conclude by expressing a clear preference for the evidence of Mr Ellinor where, despite his being cross-examined at some length on the point, he was firm in saying that the ultimate question of the agreed purchase price of Villa 167 was not a matter that was agreed until the contract was signed in Tracey Osborne’s office, whereupon the signatures of the parties were also then witnessed by Tracey Osborne.
For completeness, I must return to the evidence given by Tracey Osborne, excerpted by me in these reasons at paragraph [12], above, as well as in her written statement of evidence, where Ms Osborne acknowledges that Clifford Ellinor had advised her of his intention to attempt to speak with the Vendors privately on the question of the price. It seems to me that the best way to understand that evidence and to now reconcile it with the later evidence of Clifford Ellinor is to conclude that although there were some antecedent discussions between the vendors representatives and the purchaser in relation to the question of the price made in the absence of the agent, ultimately the price was not agreed in the absence of the agent. On that basis, this case is one that I regard to be distinguishable from the facts that arose in Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd.
The order of the Tribunal is that the Respondents are required to pay to the Applicant their commission entitlement of $9,707.50.
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