Russtar Pty Ltd v Hamilton - [2010] QDC 419

DISTRICT COURT OF QUEENSLAND

CITATION:	Russtar Pty Ltd v Hamilton & Anor [2010] QDC 419
PARTIES:	RUSSTAR PTY LTD (ACN 115 377) ATF THE RUSSELL FAMILY TRUST (Appellant) AND TERRENCE MICHAEL HAMILTON AND MICHELLE ELAINE HUBY (Respondents)
FILE NOS:	342/2009
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application for Appeal
ORIGINATING COURT:	Maroochydore Magistrates Court
DELIVERED ON:	Delivered ex tempore
DELIVERED AT:	Maroochydore
HEARING DATE:	28 October 2010
JUDGE:	Judge J.M. Robertson
ORDER:	The appeal is dismissed with costs
CATCHWORDS:	APPEAL- appeal pursuant to s 45 of the Magistrates Court Act 1921 (Qld) against order that the plaintiff appellant’s claim for real estate commission on sale of a business be dismissed. CONTRACT- whether oral agreement reached between respondent and third party purchaser which was final and complete in the Masters v Cameron [1954] 91 CLR 353 sense (Classes (a) and (b))- whether oral agreement enforceable pursuant to Property Law Act 1974 (Qld). CONTRACT- whether Form 21a pursuant to the Property Agents and Motor Dealers Act 2000 (Qld) ( the PAMDA) contained an implied term requiring vendor to execute contract where appellant agent introduced a purchaser ready, willing and able to proceed within the term of the agency agreement. CONTRACT- Sale of Business, where vendor respondent appointed appellant plaintiff as exclusive agent to sell business within period specified in appointment; STATUTORY INTERPRETATION- where Form 21a not signed by agent, whether failure to strictly comply with mandatory provisions of the PAMDA made agency agreement unenforceable; whether purposive approach to interpretation of PAMDA provisions means that partial non compliance would vitiate agreement. Legislation: Magistrates Court Act 1921 (Qld) Property Agent and Motor Dealers Act 2000 (Qld) Property Law Act 1974 (Qld) Uniform Civil Procedure Rules 1991 (Qld) Cases Cited: Luxor ( Eastbourne ) Limited v Cooper [1941] AC 108 Masters v Cameron [1954] 91 CLR 353 Quyd Proprietary Limited v Marvas Proprietary Limited [2008] QCA 257 Riches v Hogben [1986] 1 QDR 315 Theodore v Misford Pty Ltd & Anor [2003] QCA 580
COUNSEL:	Mr P. Hackett for the appellant Mr J. Lee for the respondents
SOLICITORS:	Shultz Toomey O’Brien for the appellant Adrian Hawkes Lawyers for the respondents

The appellant, Russtar, operates a licensed real estate agency known as Savvy Business. It sued the defendants for unpaid commission related to the sale of a business known as "The Fruit Shed". On the 12th of November 2009, after a three-day hearing spread over three days in 2009, his Honour Magistrate Killeen found against the appellant and gave judgment for the respondents with costs.

From that decision the appellant now appeals to this Court pursuant to section 45 of the Magistrates Court Act 1921 (Qld). Jurisdiction is conferred on this Court pursuant to section 47 of the Magistrates Court Act 1921 (Qld), and following rules 782 of the Uniform Civil Procedure Rules 1991 (Qld) apply to procedure. Although not clearly stated, it's clearly an appeal on the record before his Honour.

His Honour's reserved decision was given in writing and sets out his findings of fact and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Russtar Pty Ltd v Hamilton

Details

AGLC: Russtar Pty Ltd v Hamilton [2010] QDC 419
Case: [2010] QDC 419
Decision Date: 28 October 2010

CaseChat Overview and Summary

Russtar Pty Ltd, the appellant and plaintiff, sought to appeal against a decision of the Magistrates Court of Queensland that dismissed their claim for real estate commission on the sale of a business. The respondent, Hamilton, had appointed Russtar as their exclusive agent to sell their business. The dispute centred on the enforceability of an oral agreement between Hamilton and the third-party purchaser, and the effect of non-compliance with the statutory requirements under the Property Agents and Motor Dealers Act 2000. Additionally, the case examined whether the agency agreement was vitiated by the failure to adhere to mandatory provisions of the PAMDA.

The central legal issues before the court were whether the oral agreement between the respondent and the third-party purchaser was final and complete within the meaning of Masters v Cameron, and whether this agreement was enforceable under the Property Law Act 1974. Furthermore, the court had to determine if the Form 21a under the PAMDA contained an implied term that required the vendor to execute a contract if the agent introduced a purchaser ready, willing, and able to proceed within the term of the agency agreement. The court also needed to interpret the PAMDA provisions to ascertain if the failure to strictly comply with the mandatory requirements rendered the agency agreement unenforceable, and whether a purposive approach to statutory interpretation would nullify the agreement due to partial non-compliance.

The court examined the statutory requirements under the PAMDA and concluded that the failure to strictly comply with the mandatory provisions did not necessarily render the agency agreement unenforceable. It found that the oral agreement between the respondent and the third-party purchaser was not final and complete in the sense required by Masters v Cameron. The court held that the PAMDA did not imply a term that required the vendor to execute a contract if the agent introduced a purchaser. The court also concluded that partial non-compliance with the PAMDA did not vitiate the agency agreement under a purposive interpretation of the statutory provisions. Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

The appeal is dismissed with costs

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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