London & Anor v Reynolds - [2006] QDC 380

DISTRICT COURT OF QUEENSLAND

CITATION:

London and Anor v Reynolds QDC [2006] QDC 380

PARTIES:

KEVIN LONDON

First Appellant

AND

H20 SYSTEMS INTERNATIONAL PTY LTD

Second Appellant

AND

PETER WILLIAM REYNOLDS

Respondent

FILE NO/S:

BD 4232/05

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Commercial and Consumer Tribunal, Brisbane

DELIVERED ON:

10 November 2006

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

12 October 2006

JUDGE:

McGill DCJ

ORDER:

Declare the notice of appeal effectual under r 371, give leave to appeal, allow the appeal, set aside the decision of the Tribunal, and in lieu thereof, the claim of the respondent is rejected.

CATCHWORDS:

PRINCIPAL AND AGENT – Statutory provisions relating to agents – real estate salesperson – whether committed breach of prohibition of false or misleading statements – whether reasonable grounds for honest belief.

STATUTES – Interpretation – provision concerning breach of prohibition on false or misleading statements – whether honest and reasonable mistake of fact defence.

APPEAL AND NEW TRIAL – Practice – appeal from Commercial and Consumer Tribunal – commenced by filing notice of appeal subject to leave within time.

FRAUD, MISREPRESENTATION AND UNDUE INFLUENCE – Misrepresentation – whether merely passing on information provided by another – whether reliance – whether loss.

Property Agents and Motor Dealers Act 2000 s 470, s 574.

Commercial and Consumer Tribunal Act 2002 s 100.

Johns v Johns [1988] 1 Qd R 138 – distinguished.
Murphy v Overton Investments Pty Ltd (2004) 78 ALJR 324 – applied.
Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 – considered.
Smith v Chadwick (1884) 9 App Cas 187 – applied.
Tamawood Ltd v Paans [2005] 2 Qd R 101 – applied.
To v Chief Executive, Department of Tourism etc [2006] QDC – applied.
Toteff v Antonas (1952) 87 CLR 647 – applied.
Yorke v Lucas (1985) 158 CLR 661 – considered.

COUNSEL:

A. C. Smith for the appellants

C. Wilson for the respondent

SOLICITORS:

N. R. Barbi for the appellants

John Neive O’Donoghue for the respondent

This is an appeal from a decision of the Commercial and Consumer Tribunal given on 25 October 2005, when an order was made under s 470 of the Property Agents and Motor Dealers Act 2004 (“the Act”) for the payment to the respondent as claimant of a particular sum out of the fund established under that Act, and that the appellants reimburse the fund in respect of that amount. A notice of appeal was filed in this court on 17 November 2005. Apart from resisting the appeal on its merits, the respondent has submitted that there is no competent appeal before this court. In order to understand that point, it is necessary to have regard to the terms of s 100 of the Commercial and Consumer Tribunal Act 2002, and the notice of appeal which was filed.

Preliminary point – validity of appeal

Section 100 of that Act provides, so far as is relevant:

“(1) A party to a proceeding before the Tribunal may appeal to the District Court against…

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: [2006] QDC 380
Decision Date: 10 November 2006

CaseChat Overview and Summary

In the case of London & Anor v Reynolds, the dispute involved allegations of misconduct against a real estate salesperson, London, concerning his conduct in relation to the sale of a property. The matter was brought before the court following an appeal from a decision of the Commercial and Consumer Tribunal. The primary issue the court needed to address was whether London had breached statutory provisions by making false or misleading statements in the course of his duties as a real estate agent. Additionally, the court had to determine whether London had a reasonable basis for an honest belief that his statements were true, which could serve as a defence against the allegations.

The court examined the relevant statutory provisions and considered whether the defence of honest and reasonable mistake of fact could apply. The analysis involved interpreting the legislation to determine the threshold for a breach of the prohibition on false or misleading statements. The court also scrutinised the circumstances under which London communicated the information in question, assessing whether he was merely relaying information provided by another party or if he had independently verified the accuracy of the statements. Furthermore, the court evaluated the elements of reliance and loss to determine if the respondent had suffered harm as a result of the alleged misrepresentations.

Upon reviewing the evidence and legal principles, the court concluded that London had not breached the statutory provisions. The court found that London had acted on reasonable grounds for an honest belief regarding the information he conveyed. Consequently, the court allowed the appeal, set aside the decision of the Tribunal, and rejected the respondent's claim. The court also declared the notice of appeal to be effectual and granted leave to appeal as per the relevant procedural rules.

Orders

Orders of the court

Declare the notice of appeal effectual under r 371, give leave to appeal, allow the appeal, set aside the decision of the Tribunal, and in lieu thereof, the claim of the respondent is rejected.

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:	London and Anor v Reynolds QDC [2006] QDC 380
PARTIES:	KEVIN LONDON First Appellant AND H20 SYSTEMS INTERNATIONAL PTY LTD Second Appellant AND PETER WILLIAM REYNOLDS Respondent
FILE NO/S:	BD 4232/05
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Commercial and Consumer Tribunal, Brisbane
DELIVERED ON:	10 November 2006
DELIVERED AT:	District Court, Brisbane
HEARING DATE:	12 October 2006
JUDGE:	McGill DCJ
ORDER:	Declare the notice of appeal effectual under r 371, give leave to appeal, allow the appeal, set aside the decision of the Tribunal, and in lieu thereof, the claim of the respondent is rejected.
CATCHWORDS:	PRINCIPAL AND AGENT – Statutory provisions relating to agents – real estate salesperson – whether committed breach of prohibition of false or misleading statements – whether reasonable grounds for honest belief. STATUTES – Interpretation – provision concerning breach of prohibition on false or misleading statements – whether honest and reasonable mistake of fact defence. APPEAL AND NEW TRIAL – Practice – appeal from Commercial and Consumer Tribunal – commenced by filing notice of appeal subject to leave within time. FRAUD, MISREPRESENTATION AND UNDUE INFLUENCE – Misrepresentation – whether merely passing on information provided by another – whether reliance – whether loss. Property Agents and Motor Dealers Act 2000 s 470, s 574. Commercial and Consumer Tribunal Act 2002 s 100. Johns v Johns [1988] 1 Qd R 138 – distinguished. Murphy v Overton Investments Pty Ltd (2004) 78 ALJR 324 – applied. Saints Gallery Pty Ltd v Plummer (1988) 80 ALR 525 – considered. Smith v Chadwick (1884) 9 App Cas 187 – applied. Tamawood Ltd v Paans [2005] 2 Qd R 101 – applied. To v Chief Executive, Department of Tourism etc [2006] QDC – applied. Toteff v Antonas (1952) 87 CLR 647 – applied. Yorke v Lucas (1985) 158 CLR 661 – considered.
COUNSEL:	A. C. Smith for the appellants C. Wilson for the respondent
SOLICITORS:	N. R. Barbi for the appellants John Neive O’Donoghue for the respondent