| CITATION: | RS QLD Pty Ltd v Mottrom [2016] QCAT 527 |
| PARTIES: | RS QLD Pty Ltd t/as Hinterland Gold Properties – Sales & Management ACN 125 295 052 (Applicant) |
| v | |
| Barry Alan Mottrom (Respondent) |
| APPLICATION NUMBER: | MCDO726-15 |
| MATTER TYPE: | Other minor civil dispute matters |
| HEARING DATE: | 30 May 2016 |
| HEARD AT: | Southport |
| DECISION OF: | Adjudicator Mewing |
| DELIVERED ON: | 29 July 2016 |
| DELIVERED AT: | Southport |
| ORDERS MADE: | 1. The application is dismissed. |
APPEARANCES and REPRESENTATION:
| APPLICANT: | Sue-Ellen Flockhart (Director, Hinterland Gold) |
| RESPONDENT: | Barry Alan Mottrom |
REASONS FOR DECISION
The Application
RS QLD Pty Ltd trading as Hinterland Gold Properties (‘Hinterland Gold’) seeks payment of $24,145.00 (plus costs) from Barry Mottrom as commission payable to it in connection with the sale of Mr Mottrom’s property.
Mr Mottrom denies he is liable to pay the amount sought by Hinterland Gold because his property was sold by another real estate agent.
Hinterland Gold acknowledges that it did not complete the transaction between Mr Mottrom and the buyer, but submits that it is nevertheless entitled to commission because it was the effective cause of the sale between those parties. Hinterland Gold seeks orders of the Tribunal accordingly.
Background
Agreed facts
Mr Mottrom appointed Hinterland Gold to sell his home in January 2014. He granted exclusive agency for the period between 27 January and 28 March 2014, after which the appointment was to continue as an open listing until the property was sold or withdrawn. Mr Mottrom was seeking offers over $1.1 million.
On three occasions between 15 April and 19 September 2014 Qipeng (Jonathan) Mao and/or Jie (Chris) Liu inspected Mr Mottrom’s house. The inspections were coordinated by Sue-Ellen Flockhart, real estate agent and director of Hinterland Gold, and she accompanied them on at least…
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Details
- AGLC
- RS Qld Pty Ltd v Mottrom [2016] QCAT 527
- Case
- [2016] QCAT 527
- Decision Date
CaseChat Overview and Summary
RS Qld Pty Ltd, trading as Hinterland Gold, brought an action against Barry Alan Mottrom for an entitlement to commission from the sale of real property. The dispute arose from a contract between Hinterland Gold and Mr Mottrom, which was terminated by Hinterland Gold before the sale of the property. Mr Mottrom subsequently sold the property through another real estate agent. Hinterland Gold claimed it was the effective cause of the sale, despite not being the agent of record, and sought a proportion of the commission payable to the selling agent. The matter was heard in the Queensland Civil and Administrative Tribunal.
The court had to determine whether Hinterland Gold was entitled to commission from the sale of the property, given that it was not the agent of record at the time of sale. Specifically, the court had to decide if Hinterland Gold was the effective cause of the sale, and if so, whether it was entitled to commission despite not being the agent of record. The court had to consider whether Hinterland Gold had introduced the buyer to Mr Mottrom's property and if that introduction was effective in leading to the sale.
The court found that Hinterland Gold had introduced the buyer to Mr Mottrom's property through Ms Flockhart, and that this introduction was effective in leading to the sale. The court relied on previous cases, including West Property Solutions t/as Century 21 West Property Group v Lewis & Anor and Rankine & Ors v Rankine & Ors, to determine that the introduction of the buyer to the property was sufficient to establish Hinterland Gold as the effective cause of the sale. The court also noted that the purchase by Malway, a company in which Mao had an interest at the date of purchase, did not disconnect Hinterland Gold's introduction or negotiation efforts from the ultimate sale. The court held that Hinterland Gold was entitled to commission from the sale of the property, despite not being the agent of record at the time of sale.
The court dismissed the application, finding that Hinterland Gold was entitled to commission from the sale of the property.
The court had to determine whether Hinterland Gold was entitled to commission from the sale of the property, given that it was not the agent of record at the time of sale. Specifically, the court had to decide if Hinterland Gold was the effective cause of the sale, and if so, whether it was entitled to commission despite not being the agent of record. The court had to consider whether Hinterland Gold had introduced the buyer to Mr Mottrom's property and if that introduction was effective in leading to the sale.
The court found that Hinterland Gold had introduced the buyer to Mr Mottrom's property through Ms Flockhart, and that this introduction was effective in leading to the sale. The court relied on previous cases, including West Property Solutions t/as Century 21 West Property Group v Lewis & Anor and Rankine & Ors v Rankine & Ors, to determine that the introduction of the buyer to the property was sufficient to establish Hinterland Gold as the effective cause of the sale. The court also noted that the purchase by Malway, a company in which Mao had an interest at the date of purchase, did not disconnect Hinterland Gold's introduction or negotiation efforts from the ultimate sale. The court held that Hinterland Gold was entitled to commission from the sale of the property, despite not being the agent of record at the time of sale.
The court dismissed the application, finding that Hinterland Gold was entitled to commission from the sale of the property.
Orders
Orders of the court
1. The application is dismissed.
Background
Background to the litigation
Hinterland Gold later made a demand for payment of commission from Mr Mottrom based on their agency appointment agreement. Mr Mottrom denied he was liable and refused to pay. Disputed facts Several of Hinterland Gold’s recollections of facts and dates leading to the sale of the property are disputed by Mr Mottrom. Not all will affect the outcome of this application so I address only those that, in my view, might. (a)Did Hinterland Gold introduce the buyer to Mr Mottrom? Determination of this issue is an important first step in Hinterland Gold’s quest to prove it was the effective cause of the sale. Ms Flockhart says she introduced Mao and Liu to the property on 15 April 2014. Mr Mottrom says Ms Flockhart did not introduce Mao and Liu to his property because one or both of them were his neighbours, and knew that the property was on the market because they saw a “for sale” sign in front of the property for several months prior to 15 April.[4] [4]Paragraph 9, written submissions of Barry Alan Mottrom dated 21 March 2016. In West Property Solutions t/as Century 21 West Property Group v Lewis & Anor,[5] it was held that by advertising, holding open homes and negotiating the terms of a contract, the agent had “introduced” a buyer to the seller. The finding in that case relied in part on a decision of the Queensland Supreme Court[6] in which it was held that, by conducting an open tender and negotiations, an agent had “introduced” a buyer in a sale of partnership assets even though the buyer was a former partner of the partnership so knew of the sale.[7][5][2015] QCATA 66.[6]Rankine & Ors v Rankine & Ors [1996] QSC 281.[7]At p 312. No evidence was led as to whether any “for sale” sign in front of Mr Mottrom’s property prior to 15 April bore Hinterland Gold’s name, but it does not matter. Mao and Liu’s first inspection of Mr Mottrom’s property was facilitated by Ms Flockhart. This is clearly an introduction to the property by Hinterland Gold. Mr Mottrom also says that Mao and/or Liu approached Professionals Vertullo directly between 7 October and 8 November seeking an information pack for auction of the property.[8] Mr Mottrom doesn’t expressly say so, but I assume his submission on this point is intended to suggest that Mr Mao and/or Mr Liu made their own acquaintance with Professionals Vertullo, thereby breaking any connection between Hinterland Gold and Mr Mottrom.[8]Paragraph 24e, written submissions of Mr Barry Alan Mottrom dated 21 March 2016. It is irrelevant whether or not Mao and Liu approached Professionals Vertullo of their own volition after Hinterland Gold’s appointment had been terminated: the introduction had already occurred during the prior agency. As alluded to in the written submissions of Hinterland Gold,[9] it is important to note that the purchase by Malway — a company in which Mao had an interest at the date of purchase — does not, of itself, disconnect Ms Flockhart’s introduction or negotiation efforts from the ultimate sale. The High Court has said that if an agent’s efforts with A result in a sale to B the agent has earned its commission,[10] and that this applies equally with respect to the purchase by a company with which the person introduced by the agent was associated.[11] [9]Paragraphs 14, and 20-22, written submissions of Sue-Ellen Flockhart dated 6 November 2015.[10]LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52, per Gibbs J at p 69.[11]McBrayne v Imperial Loan Co (1913) 13 DLR 448, cited with approval by Gibbs J in LJ Hooker, ibid.
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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