McAllansmith v Ken Guy Real Estate Pty Ltd

[2012] QCATA 34

CITATION: McAllansmith and Anor v Ken Guy Real Estate Pty Ltd [2012] QCATA 34

PARTIES:	Mrs Tracey Lee McAllansmith Mr Gregor McAllansmith (Applicants/Appellants)
v
Ken Guy Real Estate Pty Ltd trading as Ken Guy Real Estate Buderim (Respondent)

APPLICATION NUMBER: APL316-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Hon James Thomas AM QC, Judicial Member

DELIVERED ON: 14 February 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application for leave to appeal and appeal is dismissed.  The Member’s order of 28 September 2011 is confirmed.

CATCHWORDS:

Minor civil dispute – agent’s advertising expenses – authority withdrawn before any sale – whether documents duly signed under ss 133 and 134 of Property Agents and Motor Dealers Act 2000 complied with – whether leave to appeal should be granted

Queensland Civil and Administrative Tribunal Act2009

APPEARANCES and REPRESENTATION (if any):     

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. This is an application for leave to appeal by Mr and Mrs McAllansmith against a judgment of the Queensland Civil and Administrative Tribunal at Maroochydore on 28 September 2011 ordering them to pay the respondent (Ken Guy Real Estate Pty Ltd trading as Ken Guy Real Estate Buderim) the sum of $8,342.39 together with filing fees of $92.00 within one month.

1. The Tribunal was constituted by a Magistrate who was deemed to be an ordinary Member of the Tribunal for the purposes of determining the claim.  He will be referred to as “the Member”.

1. The claim in this matter was brought by Ken Guy Real Estate Pty Ltd for $8,342.39 for advertising and marketing expenses in relation to the attempted sale of the applicants’ property situated at Ballinger Road, Buderim.

1. For purpose of discussion the applicants will be referred to as “the clients” and the respondent as “the Real Estate Agent”.

1. The present “application for leave to appeal or appeal” is by consent to be determined on the papers.  The only ground stated is a request that the ruling be “stood aside on the grounds that it does not comply with Queensland law”.

1. The main issue raised at the hearing, and here, is an allegation that the documents evidencing the appointment of the Real Estate Agent to act were not signed as required by section 133 and 134 of the Property Agents and Motor Dealers Act 2000 (“PAMDA”).

1. The claim was a “minor civil dispute” within the meaning of the Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”), and the present application for appeal can not be brought without this Tribunal’s leave to appeal (see QCAT Act, section 142(3)).

1. The transcript of proceedings and the documents tendered to the tribunal leave no doubt that the clients authorised the Real Estate Agent to make the relevant expenditure on their behalf, and that the agent duly made the necessary outlays and incurred the expenditure as claimed.  It reveals that following their engagement of the Real Estate Agent, they made periodic payments on account towards to the reimbursement of outlays that were being incurred by the Real Estate Agent.  They stopped making such payments only because they formed the belief that the Real Estate Agent was “slandering the property”.  However that question whether that belief was well-founded was not an issue in the present proceedings, and the clients indicated that they might pursue it elsewhere.  They have not raised it as an issue in the present application for leave to appeal.

1. There is nothing in the documents, or evidence, to suggest that the right to recover these outlays was dependent upon a sale being effected.  Indeed the documents are to the contrary.  Leaving aside for the moment the question whether the necessary signatures were placed on the documents, it is clear that the clients agreed to reimburse the agent for such expenditure.

1. The clients however contended before the Member, and wish to contend here, that certain provisions in PAMDA that require proof of the agent’s engagement by signed documents were not complied with, and that accordingly the agent has no entitlement to recover expenses that were incurred.

1. Unfortunately for the clients, the Member found that they did sign the necessary documents.  There was evidence upon which he could reasonably make that finding.

1. The requirement of section 133(7) of PAMDA is that the appointment be signed and dated by the client and by the Real Estate Agent. There is no statutory requirement that has been referred to that requires every page of the appointment to be initialled or signed. The submission that some pages were not initialled is immaterial. The relevant document of appointment was in the approved form, and section 134 of PAMDA was complied with. Both form 22A and form 23 were signed by the clients in the sections of those forms that require signatures.

1. The documents in the record are therefore adequate for the Real Estate Agent’s purposes, provided of course that they were not forgeries.  The Member has found that they were not forgeries and he rejected the clients’ assertions made during the hearing by the clients that they were or must have been forgeries.

1. It is true that the Member formed adverse impressions of the clients and expressed his views as the hearing progressed, doing so sharply and strongly.  This was unfortunate, and it no doubt explains why the clients now complain that they were dealt with in an unprofessional manner, but at no stage does it appear that the Member denied them procedural fairness, or prevented them making any submissions that they wanted to make.

1. Having carefully perused the transcript I am unable to say that the interventions of the Member were such as to call for interference on appeal.

1. There is no reason to think that the Member erred either in fact or law in preferring the evidence of Mr Guy to that of the appellants and rejecting the allegations of forgery.  Indeed, analysis of the record shows that the allegations of Mrs McAllansmith of forgery and her denials of personal signature were not entirely consistent.  Her allegations tended to change ground as the hearing progressed.  There is no basis for thinking that the Member erred in this area.

1. Even if leave were granted, the clients could not succeed unless they could reverse the factual findings of the Member.

1. The proposed appeal has no real chance of success and there are no grounds upon which leave to appeal should be granted.

1. In the respondent’s carefully prepared submissions, a request was made for costs to be awarded against the applicants in the event that the application was dismissed.  The submission described the case as relatively simple and contended that the appeal was brought without any reasonable or valid basis.  However I see no sufficient reason to depart from the usual rule which requires each party to bear their own costs.

1. The application for leave to appeal and appeal is dismissed.