Ray White Port Douglas v Balnavoran Pty Ltd
[2010] QCATA 123
•7 December 2010
| CITATION: | Ray White Port Douglas v Balnavoran Pty Ltd [2010] QCATA 123 |
| PARTIES: | Ray White Port Douglas (Applicant/Appellant) |
| v | |
| Balnavoran Pty Ltd (Respondent) |
APPLICATION NUMBER: APL086-10
| MATTER TYPE: |
HEARING DATE: On the papers
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President |
DELIVERED ON: 7 December 2010
DELIVERED AT: Brisbane
ORDERS MADE: Leave to appeal is refused
| CATCHWORDS : | MINOR CIVIL DISPUTE – RENTAL PROPERTY – where respondent engaged appellant to act as its agent – where agreement terminated and appellant retained booking fees – where Member found by reference to previous practices between the parties that respondent should be refunded booking fees – where appellant alleges that it incorrectly referred to the wrong section of the contract between the parties and that the outcome would have been different had it referred to the correct one – whether Member was mislead – whether appellant’s reference to incorrect section of contract material to outcome Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal the application for leave to appeal (and appeal, if leave is granted) were directed to be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
This dispute, originally in QCAT’s Minor Civil Disputes jurisdiction, arose following the termination of an agreement between Balnavoran Pty Ltd, the owner of two rental properties at Port Douglas, and Ray White Port Douglas which had been retained by Balnavoran Pty Ltd to act as its agent and manager for holiday lettings.
Balnavoran Pty Ltd claimed that $1,530.00 had, on the termination of the agreement, being wrongly retained by Ray White.
The matter came on for hearing before Dr Bridget Cullen Mandikos, a lawyer and QCAT Member acting as an adjudicator in the MCD jurisdiction on 7 May 2010. Regrettably, the recording of the proceedings before her has been lost but she gave oral reasons which have been found and transcribed.
Those reasons, which are lengthy, careful and comprehensive record that the parties both accepted that the agreement between them had been validly terminated and the only dispute involved an interpretation of their contract about what would happen with booking fees which had been retained by the agent. Mr Crossman gave evidence for Ray White, and Mr Petch for Balnavoran Pty Ltd, about their previous arrangements and practice about payments.
The learned Member concluded that on the basis of the parties’ previous conduct referrable to the contract, and by reference to the terms of the contract itself, Balnavoran Pty Ltd was entitled to the refund it sought.
Mr Crossman, for Ray White, seeks leave to appeal that decision on very simple grounds. He says that in his evidence and submissions to the learned adjudicator he incorrectly referred to the wrong section of the contract between the parties. In his appeal submissions he wrote:
At the hearing I referred to item 4 of this agreement when in fact I should have been referring to item 5 that is headed ‘commission’. In particular I should have referred the Tribunal to item 5.2 which states – in effect – that commission is payable to the agent on the disbursement of funds to the landlord. As the funds had been disbursed to the landlord I, as the agent, was entitled to commission.
The contract to which the submissions refer was exhibit 1 before the learned Member. Clause 4 is headed ‘Appointment of Agent’ and plainly bears little direct relation to the issues here. Clause 5, immediately following, is headed ‘Commission’.
The learned Member’s reasons show that she decided the case with reference to the oral testimony of Mr Petch and Mr Crossman, and her own perusal of the contract. Of the contract, she said:
In this regard, the contract itself does not contain a clause which spells out what is to happen with booking fees that have been retained following a booking which was made by the respondent prior to the termination of the agreement. It is true that clause 5.2 says that commission is payable ‘…on disbursement of funds to landlord’ but, as the reasons plainly show, that is not a complete answer to the question arising here – ie, what is to happen to funds which are held by the agent, at the time the contract is terminated.
The learned Member went to great care to explain how she reached her conclusion, in the face of the contractual terms:
It is clear that the bookings were made prior to termination of the contract, however, as the contract does not include any clause which would allow me to interpret what should happen upon termination, I have to have regard to the previous practice that existed the parties…
Later, she makes specific reference to the ‘Commission’ provisions of the contract:
I should also note that I have had some regard to the fact that the contact itself refers to the payment of commission and contains a separate definition for what is regarded as a booking fee. Thus, I consider these to be two separate matters and there’s nothing in the contract that indicates that there is an entitlement to be paid a booking fee specifically, at least not in the material that is before me.
It is impossible, on reading these passages, to reach any conclusion but that the learned Member not only considered the contract in all its relevant clauses but, in particular, specially referred herself (or was referred by one of the parties) to clause 5.
In the result, even if Mr Crossman made the error he asserts in his application for leave to appeal, it had no material effect upon the outcome because the learned adjudicator was not misled and, in fact, properly directed herself to the relevant clauses including that to which Mr Crossman now alleges she should have paid particular attention.
Because this proceeding is in QCAT’s Minor Civil Disputes jurisdiction, leave to appeal is necessary. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect of the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
The applicant has no complaint, I understand, about any aspect of the proceeding save the error he says he, himself, made. Nothing in Mr Crossman’s material or the transcript suggests, however, any error on the part of the learned Member. To the contrary, the transcript shows that, even if he did mistakenly refer her to one particular part of the contract when he intended to mention another, she plainly took the relevant part into account and specifically addressed it in her reasons.
The application for leave to appeal must be refused.
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