Pullen v Lambert Willcox Estate Agents Pty Ltd

Case [2019] QDC 104

DISTRICT COURT OF QUEENSLAND

CITATION: 

Pullen & Anor v Lambert Willcox Estate Agents Pty Ltd [2019] QDC 104

PARTIES:

MARK VINCENT PULLEN

(first appellant)

and

TIANA ADAIR PULLEN

(second appellant)

v

LAMBERT WILLCOX ESTATE AGENTS PTY LTD A.C.N 608 390 834

(respondent)

FILE NO/S:

D100/18

DIVISION:

Appellate

PROCEEDING:

Appeal – s 45 Magistrates Court Act 1921 (Qld)

ORIGINATING COURT:

Southport Magistrates Court

DELIVERED ON:

27 June 2019

DELIVERED AT:

Southport

HEARING DATE:

11 February 2019

JUDGE:

Muir DCJ

ORDER:

1.   Appeal is allowed;

2.   Judgment of the Magistrates Court dated 22 March    2018 is set aside;

3.   Respondent’s claim is dismissed

4.   I will hear the parties as to costs. To that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be exchanged and emailed to my Associate by 4.00pm Friday 26 July 2019.

CATCHWORDS:

APPEAL – CIVIL APPEAL – OPEN AGENCY AGREEMENT – ENTITLEMENT TO COMMISSION – whether the first agent is entitled to its commission for the sale of property when the second agent has an exclusive agency agreement – whether the first agent was the effective cause of sale – onus of proof – break in necessary causal relationship – question of fact

District Court of Queensland Act 1967 (Qld), s 113
Magistrates Court Act 1921 (Qld), ss 45, 47
Property Occupations Act 2014 (Qld), ss 20, 23
Uniform Civil Procedure Rules 1999 (Qld), rr 765(1), 783, 785

Allesch v Maunz(2000) 203 CLR 172
Chambers v Jobling (1986) 7 NSWLR 1
Dat & Anor v Gregory [2016] QCATA 36
Dearman v Dearman (1908) 7 CLR 549
Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117
Farmcrest Pty Ltd (trading as Ray White Ascot) v Jager [2013] QDC 290
Fox v Percy (2003) 214 CLR 118
JJ Richard & Sons Pty Ltd v Precast Concrete Pty Ltd[2010] QDC 272
LJ Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52
Mbuzi v Torcetti [2008] QCA 231
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351
Prestige  Residential Marketing Pty Limited v Depune Pty Limited [2008] NSWCA 179
Rasmussen and Russo Pty Ltd v Gaviglio [1982] Qd R 571
Robinson Helicopter Company Incorporated v McDermott (2016) 90 ALJR 679
Ryan v Horton (1911) 12 CLR 197
Teelow v Commissioner of Police[2009] QCA 84
Warren v Coombes(1979) 142 CLR 531

COUNSEL:

J. Faulkner for the appellants

S. Taylor for the respondent

SOLICITORS:

Barren & Allen Lawyers for the appellants

Lillas & Loel Lawyers for the respondent

Introduction

  1. The appellants Mark and Tiana Pullen, appeal under s 45 of the Magistrates Court Act 1921 (Qld) (“the MCA”), against the decision of a Magistrate on 22 March 2018, ordering them to pay $38,500.00 to the respondent Lambert Willcox Estate Agents Pty Ltd for real estate commission on the sale of the appellant’s Property at 19 Cheval Court Benowa.[1]  

    [1]Lambert Willcox Estate Agents Pty…

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Details
AGLC
Pullen v Lambert Willcox Estate Agents Pty Ltd [2019] QDC 104
Case
[2019] QDC 104
Decision Date

CaseChat Overview and Summary

Pullen appealed against a decision of the Magistrates Court which found Lambert Willcox Estate Agents Pty Ltd was not entitled to a commission for its role in the sale of a property. The appellant, Pullen, argued that it was entitled to commission because it was the effective cause of the sale of the property. The respondent, Lambert Willcox, submitted that it had an exclusive agency agreement with the property owner and, therefore, was the only agent entitled to commission. The appeal was heard in the County Court of Victoria.

The central issue in the appeal was whether the appellant was entitled to commission for the sale of the property when the respondent had an exclusive agency agreement. The court had to consider whether the appellant was the effective cause of the sale and, if so, whether the break in the necessary causal relationship was sufficient to exclude the appellant's entitlement to commission. The court also had to determine the onus of proof in this matter.

The court found that the appellant had established that it was the effective cause of the sale. The court held that the onus of proof was on the respondent to show that there was a break in the necessary causal relationship. The court found that the respondent had not discharged this onus. The court also found that the appellant had made out a case for entitlement to commission. The court set aside the judgment of the Magistrates Court and dismissed the respondent's claim. The appeal was allowed. The parties were directed to exchange submissions on costs.

Orders

Orders of the court

1. Appeal is allowed;

2. Judgment of the Magistrates Court dated 22 March 2018 is set aside;

3. Respondent’s claim is dismissed

4. I will hear the parties as to costs. To that end I direct that any submissions in respect of costs, or alternatively a proposed draft order if the parties are agreed, be exchanged and emailed to my Associate by 4.00pm Friday 26 July 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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