Royle v Property Direct P/L

DISTRICT COURT OF QUEENSLAND

CITATION:

Royle v Property Direct P/L [2010] QDC 265

PARTIES:

SHANE ROYLE
(Plaintiff)

v

PROPERTY DIRECT PTY LTD
(Defendant)

FILE NO/S:

BD2672 of 2006

DIVISION:

Civil jurisdiction

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 June 2010

DELIVERED AT:

Brisbane

HEARING DATES:

18, 19 and 20 August and 30 September 2009

JUDGE:

Devereaux SC, DCJ

ORDER:

1. The defendant pay the plaintiff the sum of $62,961, being the judgment amount of $47,879 plus interest at 9% over 3½ years, $15,082
2. The defendant pay the plaintiff’s costs excluding any amount paid to expert witnesses.

CATCHWORDS:

CONTRACT – TERMS AND PARTIES – CONSTRUCTION RULES – Evidence of context – where plaintiff claims final instalment of commissions as real estate agent and sales manager in off-the-plan sales – whether plaintiff available to perform settlement duties

Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451

COUNSEL:

KC Kelso for plaintiff
PA Looney for defendant

SOLICITORS:

Michael Drummond Lawyer for plaintiff
Shand Taylor Lawyers for defendant

1. Mr Royle, the plaintiff, claims for unpaid commissions that he says are owed under an employment agreement.  The defendant, Property Direct Pty Ltd (Property Direct), says it was entitled to adjust outstanding commissions, as provided for by the agreement, because the plaintiff was not available to carry out certain duties under the agreement as sales manager and as an agent.

1. The issue is whether Mr Royle was available at settlement and fully available to attend to settlement matters, as those terms are used in the parties’ remuneration agreements.  He says he was so available but that Property Direct prevented him from carrying out his tasks.

The parties and their agreements

1. Property Direct is a real estate agency which specialises in selling off the plan projects.  Relevantly, it was contracted to sell and market the Aurora residential development situated at 420 Queen Street, Brisbane (Aurora).

1. Mr Royle entered into a written contract of employment with Property Direct on 30 September 2001.  By that contract, relevantly:

(a)            The employer was required to pay each employee commission as                    notified in writing from time to time for each project and the   employer retained the right to vary the commission rate payable   from time to time (clause 4);

(b)            The employee was required to carry out duties of a real estate    salesperson in the employer’s business in accordance with   directions given by the employer (clause 5.1);

(c)            The employee undertook not to be placed in the position where a   conflict of interest may arise (clause 5.2);

(d)            The employee acknowledged that information regarding clients and   the business interests, operations and affairs of the employer   were confidential and belonged to the employer (clause 10).

1. Aurora was to be the largest such development in Brisbane.  It was twice as big as any such project Property Direct had been involved in marketing. 

1. Typically, some years would pass between the execution of a contract to buy and sell an apartment in a project and the settlement of the contract.  In respect of each…