Rowe v Showcase Property Pty Ltd t/as Mint Property Sorrento
[2014] QCATA 158
•1 July 2014
| CITATION: | Rowe v Showcase Property Pty Ltd t/as Mint Property Sorrento [2014] QCATA 158 |
| PARTIES: | Chad Everett Rowe (Applicant/Appellant) |
| v | |
| Showcase Property Pty Ltd t/as Mint Property Sorrento (Respondent) |
| APPLICATION NUMBER: | APL442-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 1 July 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 3 October 2013 is set aside and the claim is remitted to the tribunal for hearing. 4. Chad Everett Rowe shall file and serve on Alison Schultz a copy of the amended application for minor debt filed 14 August 2013 and these reasons for decision by 30 July 2014. 5. Chad Everett Rowe shall file in the tribunal an affidavit of service by 8 August 2014. 6. The application shall be listed for hearing in Southport not before 11 August 2014. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where appointment of real estate agent – where parts of appointment not completed – where vendor alleged no completed appointment – where vendor alleged agent failed to explain different types of appointment – where vendor alleged agent failed to provide signed copy of appointment – whether appointment effective – whether grounds for leave to appeal Property Agents and Motor Dealers Act 2000 (Qld) ss 133, 134, 134A, 137 Pickering v McArthur [2005] QCA 294 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Mr Rowe and his former wife sold their home through Showcase Property Pty Ltd t/as Mint Property Sorrento in November 2011. By an application filed in July 2012, Mr Rowe sought a refund of $196.98 for money in trust that Mint did not refund to him. In August 2013, Mr Rowe amended his claim to recover all of the commission retained by Mint. Mr Rowe claimed that Mint’s appointment was invalid. The tribunal dismissed his claim.
Mr Rowe wants to appeal that decision. He says the learned Member erred in finding that the appointment was valid.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur[1]:
There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
[1][2005] QCA 294 at [3].
Mr Rowe submits to the appeal tribunal that there was no finalised agreement, only a counter offer by him that Mint did not sign. He says that the Form 32a did not meet the requirements of s 133(2) of the Property Agents and Motor Dealers Act 2000 (Qld) because it did not note the appointment type or “address section”. He says that, contrary to s 133(8), Mint did not provide him with a copy of the appointment. He says the appointment was not in the approved form. He says that Mint did not comply with s 134A of the Act.
In the tribunal’s minor civil disputes jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The appeal tribunal, in considering an application for leave to appeal, must consider those decisions within the circumstances in which they are delivered, given the pressure of the tribunal’s caseload.
The learned Member found[2] that, although there were anomalies in the agreement, those anomalies were not sufficient to render the appointment void. However, Mr Rowe submitted that particular sections of the Property Agents and Motor Dealers Act rendered the appointment invalid. The learned Member should have considered those sections in some detail.
[2]Transcript page 1-15, lines 22-24.
I agree with the learned Member’s observation[3] that the decision of the appeal tribunal in Finnis v Real Estate Now Pty Ltd[4], because of its peculiar facts, is not helpful in deciding this dispute. In Finnis, the parties operated on a handshake, with no signed agreement. Here Mr Rowe signed a Form 22a but, he says, it was deficient.
[3]Transcript page 1-15, lines 12-17.
[4][2013] QCATA 150.
The counter offer to which Mr Rowe referred the learned Member was the deletion of the advertising costs clause. Mr Wardale, principle of Mint, told the learned Member that, on receipt of the counter offer, he signed it, accepting the amendment[5]. There was evidence before the learned Member of a concluded and signed agreement.
[5]Transcript page 1-10, lines 1-5.
Mr Rowe rightly points out that section 4.3 of the agreement did not note, contrary to s 133(2), whether the appointment was for a single appointment or a continuing appointment. Section 133(2) is not mandatory in its terms. It says the appointment may be for either a particular service or a number of services over a period. Section 133(3) is the mandatory section. It requires that the appointment must state the service to be performed, how it is to be performed, and detail the fees and charges.
Reading the appointment as a whole, I am satisfied that it does meet these requirements: Section 3.1 notes the property details. Section 4.1 notes that the appointment is for the sale of a residence. Section 4.2 notes the list price. Section 7.1 details the commission payable in the event of a sale. The inescapable conclusion is that Mint was appointed for a particular service – the sale of the residence.
Mr Rowe submits that the appointment was not in the approved form, contrary to s 134. That is not correct. Section 134(3) does not, by its terms, refer the reader back to s 133. It refers the reader back to s 134(1) which requires an appointment to be in the approved form. Mr Rowe signed a PAMD Form 22a. That is the approved form.
Mr Rowe submitted at the hearing[6] that he did not receive a copy of the signed appointment, contrary to s 133(8). Mr Wardale did not give evidence on this point, and the learned member did not consider the issue in her reasons for decision.
[6]Transcript page 1-9, line 31.
I am not persuaded that a breach of s 133(8) makes the appointment ineffective. The Property Agents and Motor Dealers Act clearly states that a breach of s 134(1) renders the appointment ineffective. Section 137 sets out three circumstances in which an appointment will be ineffective, and a breach of s 133(8) is not one of the circumstances. It is easy to see why an appointment that is not in writing, or not signed, does not detail the services to be offered, or does not set out the proposed charges would be ineffective. The answer to that question is simply the application of the basic elements of contract law. But a breach s 133(8) does not attack the validity of the appointment itself, rather it addresses the transparency of the agreement. Perhaps that is why, unlike ss 133(3), (4), (5) and (7), there is a penalty for breach.
Mr Rowe also submitted at the hearing[7] that Mint did not comply with s 134A because Mr and Mrs Rowe did not receive advice about the effect of an open listing, exclusive agency, or sole agency. Once again, Mr Wardale did not give evidence on this point, and the learned member did not consider the issue in her reasons for decision.
[7]Transcript page 1-13, lines 26-34.
Unfortunately, the learned Member had to decide this important issue. Section 137(3) states that an appointment is ineffective if the agent has breached s 134A. If Mr Rowe was correct in stating that Mint did not comply with s 134A, he is also correct that the appointment was ineffective and Mint was not entitled to its commission.
Leave to appeal should be granted and the appeal allowed. The decision of 3 October 2013 is set aside and the matter is remitted to the tribunal to hear and determine whether Mint breached s 134A.
Both Mr Rowe and his former wife signed the appointment. Therefore, Ms Schultz (formerly Mrs Rowe) may have an interest in the proceedings. She should have the opportunity to be a party to the proceeding. I direct that Mr Rowe serve a copy of the amended claim and this decision on Ms Schultz by 30 July 2014 and that he file and serve an affidavit of service by 8 August 2014. I further direct that the claim be listed for hearing not before 11 August 2014.
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