Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield
[2022] QCATA 45
•12 April 2022
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield [2022] QCATA 45
PARTIES: JIQING PENG (applicant)
v
DARLEY PROPERTIES PTY LTD (t/a L J HOOKER CABOOLTURE-MORAYFIELD (respondent)
APPLICATION NO:
APL010-21
MATTER TYPE:
Other minor civil dispute matters
DELIVERED ON:
12 April 2022
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Dr J R Forbes
ORDERS:
The application for leave to appeal is dismissed.
CATCHWORDS:
APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL CLAIM – CONSUMER CLAIM – JURISDICTION – where primary application dismissed for want of jurisdiction – whether real estate agent a trader within the meaning of the QCAT Act – whether a statutory exception applies to real estate agency as a discipline not ordinarily regarded as within the field of trade or commerce – whether licensed real estate agent falls within that description – where exception is deemed applicable – application for leave dismissed
Property Occupations Act 2014 (Qld) s 16, s 18, s 21, s 34, s 35. s 36 ,s 40, s 45, s 169, s 172, s 173
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 4(b), s 12(1), s 32, Schedule 3 cl 1(a), cl 2(a)
Miscellaneous Award 2010 (Cth)
Aguilar v Enalig [2014] QCATA 219
Amos v Walter [2021] QCATA 105
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215
Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1
Carr v Inland Revenue Commissioners [1944] 2 All ER 163
Currie v Commissioners of Inland Revenue [1921] 2 KB 332
Davy v Ryter Planning Pty Ltd [2010] QCATA 96
Early Property Group Pty Ltd (t/a Early Group Valuers v Cavallaro [2010] QCATA 65
Grommen v Hawes [2018] QCATA 49
Hi Dow Australia Pty Ltd v Shivlosh Australia Pty Ltd [2015] QCATA 155
Holman v Deol [1976] 1 NSWLR 640
Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate) APL 313 of 2017
McDonald v Kenmore Podiatry [2012] QCAT 126
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611Morales v Murray Lyons [2010] QCATA 87
Prestia v Aknar (1996) 40 NSWLR 165
Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457
Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36
Safe and Sound Building Society v SRJ Audit Pty Ltd [2015] QCATA 109
Social & Community Welfare Services (State) Award (1984) 8 IR 364Wong v Ong [2015] QCATA 51
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Introduction
This is an application for leave to appeal a decision to dismiss an action brought by the applicant for leave (`Peng’) against the respondent (`Hooker’) for want of jurisdiction.
At all material times Peng was lessor of residential premises at Upper Caboolture (`the premises’). Under a general tenancy agreement dated 18 December 2015 Hooker was appointed Peng’s managing agent for the premises.[1]
[1]General tenancy agreement dated 18 December 2015 Item 3.
Agency performance questioned – action unsuccessful
On 15 October 2019 Peng commenced these proceedings[2] against Hooker claiming $8,299.07 for the latter’s `failure to ... comply with its contractual obligations and provide the services it was required to do’.[3] In substance the allegation was that Hooker negligently or incompetently managed the premises. Hooker denied liability.
[2]Application for minor civil dispute – consumer dispute MCDO1536/19.
[3]Annexure to initiating application clause 33.
The matter was heard and determined by the Tribunal on 23 October 2020, when Peng’s application was dismissed for want of jurisdiction. The adjudicator concluded that –
in performing the services which they did having the qualifications which they did, the respondent was engaged in the professional discipline of providing real estate agents and were not traders within the meaning of the QCAT Act.[4]
[4]Transcript of hearing 23 October 2020 page 19 lines 18-21.
Is Hooker a `trader’?
Peng submits that this finding amounts to an error of law.
Section 12 of the QCAT Act (`the Act’) relevantly provides that that the tribunal may exercise jurisdiction as in a minor civil dispute with respect to a claim “arising out of a contract between a consumer and a trader”.[5]
[5]QCAT Act s 4(1)(b), s 12(1).
For the purposes of the Act the term “trader” includes a person who, in trade or commerce, carries on a business of providing services”.[6]
[6]QCAT Act Schedule 3 (definition of trader) clause 1(a)(i).
Exception clause
However, there is a significant exception, upon which resolution of this case depends. A person is not a `trader’ `if in ... providing the services … [he] acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce’[7] (`the exception clause’). When the exception clause applies the service provider is not a `trader’ within the meaning of the Act, the proceedings are not a minor civil claim for the purposes of the Act, and the Tribunal has no jurisdiction to entertain them.
[7]QCAT Act Schedule 3 (definition of trader) clause 2(a).
The exception clause is not unique to the QCAT Act. For example, a regulation made under the Fair Work Act 2009 (Cth) provides:
The award does not cover those classes of employees who, because of the nature or seniority of their role, have not traditionally been covered by awards including managerial employees and professional employees such as accountants and finance, marketing, legal human resources, public relations and information technology specialists.[8]
[8]Miscellaneous Award 2010 (Cth).
The subject exception clause speaks not of a “profession”, but of a “discipline”. It may be that the draftsman preferred “discipline” to profession” to avoid sterile, status-conscious demarcation disputes.[9] However, the semantic point seems to have no practical significance. It has not been the subject of comment or discussion in any relevant decision on the exception clause that I have been able to find. It is conceivable that there are some “disciplines” that are not professions, but that arcane point need not be pursued. Presumably all professions are disciplines for the purposes of the Act. The Macquarie Dictionary defines `discipline’ as (inter alia) `a branch of learning’.
[9]Cf the comment of French J in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219, referring to T J Johnson Professions and Power (1972) at page 22.
What is a `profession’ or `discipline’?
The concept of a profession – as distinct from trade – refers to an occupation offering skilled services for profit. The concept is not closed or inflexible. On the contrary, it continually expands, as an English judge recognised some 70 years ago: “There are professions today which nobody would have considered to be professions in times past.”[10] Earlier still, a distinguished member of the High Court observed:
[Profession] is an expression which I agree is not capable of exact definition … [depending on] the general understanding of the community. The word `profession’ is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community.[11]
[10]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.
[11]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; cited with approval in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.
It is not a matter of what (if anything) the legislature demanded of estate agents in times gone by, but of what it requires today.
In Prestia v Aknar[12] Santow J listed several indicia of a profession, as distinct from a trade:
I am satisfied that references to `profession’ and `professional activity’ at the least include the traditional categories of medicine, dentistry and the law.[13] However, I consider the words `professional activity’ may well point to a wider range of those who provide services to the public in an analogous way to traditional professionals. They may, depending on how they are organised and conduct themselves, include, for example, taxation consultants, brokers, teachers … [A] working definition of [professional activity] … would embrace intellectual activity … professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.[14]
[12](1996) 40 NSWLR 165.
[13]As recognised in Holman v Deol [1976] 1 NSWLR 640; Morales v Murray Lyons [2010] QCATA 87; Wong v Ong [2015] QCATA 51 at [11]
[14](1996) 40 NSWLR 165 at 186.
In Holman v Deol[15], discussing a wide-ranging list of suggested `professions’, Lee J observed:
[T]he field of trade and commerce can merge with the professional field so as to include at least some of the disciplines which in this day and age could properly be regarded as professions.[16]
[15][1979] 1 NSWLR 640.
[16][1979] 1 NSWLR 640 at 651. Lee J referred inter alia to dental technicians, tax consultants, real estate valuers, teachers of music, and staff of business colleges.
Modern indicia of a profession
As predicted by du Parcq LJ[17] the common understanding of “profession” has not stood still. That status has been awarded to accountants,[18] valuers[19], town planners[20], podiatrists,[21] costs assessors[22] and migration agents.[23]
[17]See paragraph [14], above.
[18]Safe and Sound Building Society v SRJ Audit Pty Ltd [2015] QCATA 109 at [8]; Hi Dow Australia Pty Ltd v Shivlosh Australia Pty Ltd [2015] QCATA 155.
[19]Early Property Group Pty Ltd (t/a Early Group Valuers) v Cavallaro [2010] QCATA 65 at [20] per Deputy President: “[I]t can readily be accepted that valuers are professionals”. .
[20]Davy v Ryter Planning Pty Ltd [2010] QCATA 96 (Wilson J, President).
[21]McDonald v Kenmore Podiatry [2012] QCAT 126.
[22]Amos v Walter [2021] QCATA 105.
[23]Aguilar v Enalig [2014] QCATA 219 at [7] (Senior Member Stilgoe).
In the light of authorities to which I have referred, I see nothing unreasonable in according property agents the benefit of the exception clause. In principle, if not always in practice, estate agency and management involves “intellectual activity … professional standards of competence, training and ethics … reinforced by some form of official accreditation accompanied by evidence of qualification”[24] indicative of a modern profession. It is useful to examine the position of estate agents in specific detail.
[24]Prestia v Aknar (1996) 40 NSWLR 165 at 166 per Santow J.
At the present time estate agents are licensed by the State.[25] They must satisfy the registration authority that they are “suitable persons”,[26] with approved post-secondary qualifications.[27] They must maintain trust accounts[28], and they are subject to a statutory code of conduct and discipline.[29] This appeal tribunal emphasised the latter requirements in Aquilar v Egnalig.[30] Certain ethical requirements are imposed upon them, or fortified, by law.[31]
[25]Property Occupations Act 2014 s 16; cf Prestia, above at 186 (“accreditation”).
[26]Ibid s 34. As to character checks see Property Occupations Act 2014 (Qld) ss 34-36, 40.
[27]Ibid s 45. There are four approved courses in Queensland, commencing with the Registration Certificate Course, and progressing to the Full Agent Licence/Principal Licensee accreditation. The latter course prescribed 19 “units”, including legal and ethical requirements of property sales, interpretation of legislation concerning agency, and management of trust accounts.
[28]Ibid s 169. As noted by the Member in this case: Transcript p 48 line 17.
[29]Ibid ss 172, 173. As noted in Prestia, above at 186, in Early Property Group Pty Ltd (t/a Early Group Valuers v Cavallaro [2010] QCATA 65 at [20], and in the present case: Transcript p 48 lines 3-4.
[30][2014] QCATA 419 at [7] and [6]: “standards of competence, training and ethics, typically reinforced by some form of official accreditation”..
[31]Property Occupations Regulation 2014 (Qld) s 18 (conflicts of interest); s 21 (duty towards agents already appointed).
QCAT’s view of the exclusion clause
In my respectful view the adjudicator’s conclusion that the tribunal lacks jurisdiction is correct.
So far as I am aware, the Tribunal’s earliest case concerning estate agency is my unreported decision in Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate),[32]where it was held that the agent was not a `trader’; consequently the application failed for want of jurisdiction.
[32]APL 313 of 2017.
Similar cases[33] on the exemption clause have met a similar fate, for the same reasons as those given in Kommouna, above. In Grommen v Hawes[34] Member Hughes, citing Rowley v Abacus Associates Pty Ltd,[35] observed:
Mr Grommen’sclaim … does not arise out of a contract between two or more ‘traders’ because he and Ms Hawes were engaged in a professional discipline of providing real estate services. They engaged in an intellectual activity for reward involving training, accreditation and adherence to professional standards.
[33]Early Property Group Pty Ltd (t/a Early Group Valuers) v Cavallaro [2010] QCATA 65; Amos v Walter [2021] QCATA 105; Grommen v Hawes [2018] QCATA 49; Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36.^
[34][2018] QCATA 49 at [10].
[35][2017] QCAT 36.
Ultimately the identification of a profession or discipline for purposes of the subject exception clause depends on a judgment of fact and degree[36], guided of course by the relevant authorities, and an assessment of “the general understanding of the community”[37] or of the “ordinary reasonable man”.[38]
Where reasonable minds may differ, a decision cannot properly be described as unreasonable, simply because one conclusion has been preferred to another possible result.[39]
[36]Currie v Commissioners of Inland Revenue [1921] 2 KB 332 at 340; Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457 at 461 per Starke J; Re Social & Community Welfare Services (State) Award (1984) 8 IR 364; BondCorporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.
[37]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219 per French J.
[38]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.
[39]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 per Gleeson CJ and McHugh J; Minister for Immigration and Citizenship v SZMDS & Another (2010) 240 CLR 611; at [131].
Resolution
In the light of authority and comparable decisions I can see no reasonable prospect that an appeal in this case would succeed. The adjudicator’s decision is clearly correct, and the application for leave to appeal must be dismissed.
ORDER
The application for leave to appeal is dismissed.
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