LTB Pty Ltd v Murphy
[2012] QCAT 647
•23 December 2012
| CITATION: | LTB Pty Ltd v Murphy [2012] QCAT 647 |
| PARTIES: | LTB Pty Ltd |
| v | |
| Dennus James Murphy |
| APPLICATION NUMBER: | MCDO63-12 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 17 September 2012 |
| HEARD AT: | Holland Park |
| DECISION OF: | Paul Favell, Member |
| DELIVERED ON: | 23 December 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The respondent pay the applicant $748.00 forthwith. |
| CATCHWORDS: | Minor civil dispute – Application for order for payment of fees as agreed |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | LTB Pty Ltd represented by Ronald Sydney Wrighton-Benson |
| RESPONDENT: | Dennus James Murphy |
REASONS FOR DECISION
The applicant, LTB Pty Ltd trading as Platinum Private, seeks an order that Dennus James Murphy pay $748.
The applicant claims the respondent agreed to pay the applicant $748 marketing fees when on 19 September 2011 the property at 15 Troon Place Carindale owned by the respondent was listed for sale. The respondent paid $300 that day.
The applicant claims that on 20 January 2012 the respondent agreed to pay $300 towards a feature newspaper advertisement.
Exhibit 1 is an Appointment of real estate agent form and agreement. It records the respondent appointing the applicant as agent for the sale of the property. The reserve or listing price was “$1,125,000 NEG”.
The applicant was appointed as an exclusive agency from 19 September 2011 to 17 November 2011. Clause 5.1 of the agreement provided that the appointment would continue as an open listing after the end of the exclusive agency until advised in writing by the vendor.
Part 7 of the agreement provided for agreed maximum commission (and GST) payable for service to be performed by the agent was “5% of the first $18,000 then 2.5% thereafter 10% less 10% Loyalty.”
Part 9 of the agreement authorised the agent to incur advertising/marketing expenses as per tax invoice.
Exhibit 1(a) is a tax invoice from the applicant addressed to the respondent. It records a “marketing package” for $968. Of that amount, $220 was to be for a full metal signboard which was not supplied. It records a cash payment of $300 on 19 September 2011 and approval of the marketing program by “LB”.
Exhibit 2 is a tax invoice from the applicant to the respondent for $300 for “Feature advertising in South East Advertiser”.
Exhibit 3 is an acknowledgment by the respondent dated 13 September 2011 that he was that day invoiced $963 representing marketing fees for 15 Troon Parade Carindale in respect of which he paid $300 cash. Exhibit 4 is a trust account receipt for that payment.
Exhibit 6 is an email from the respondent to the applicant dated 9 February 2011 informing the applicant that the house was listed for sale with another agent.
The property was in fact sold in February 2012 for $915,000 by another agency. The respondent claims in response to the application that they were told the applicant had said to them, “when I sell the property you can pay the advertising.” The applicant contends to the contrary and gave evidence that she said that if the property was not relisted with her, and it was marketed with someone else, the marketing was still payable. On that point, the applicant relies on Exhibit 2. In my view it is strong corroboration of the claim made by the applicant.
It was contended that the respondent was told that the applicant would not charge unless the property was sold. The respondent contends otherwise. It seems to me likely that the terms of the agreement set out in writing speak for the actual situation. The witness for the applicant was cross examined on that point and I found her responses convincing and credible.
Mr Murphy gave evidence that he was told that he would not have to pay advertising until the property was sold. I heard evidence from both Mr and Mrs Murphy. In some respects it conflicted. There was some animosity between the Murphys and those appearing for the applicant. Much of it was not relevant to the claim that is being made.
Assessing the evidence given and the exhibits, I find that the terms of the agreement were as set out in the exhibits I have set out above. I find that the respondent does have an obligation to pay the amount claimed by the applicant and I order that the respondent pay the applicant $748 forthwith.
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