S & G (Aust) P/L v Mackay Business Brokers

[2001] QCA 478

[2001] QCA 478

COURT OF APPEAL

McMURDO P
McPHERSON JA
AMBROSE J

Appeal No 8757 of 2001

S & G (AUST) PTY LTD  Applicant

v.

MACKAY BUSINESS BROKERS  Respondent

BRISBANE

..DATE 02/11/2001

JUDGMENT

McPHERSON JA: This is an application under s.118(3) of the District Court Act for leave to appeal to this Court against a decision of his Honour Judge Britton in the District Court in Mackay.  By that decision his Honour allowed an appeal against a decision in the Magistrates Court at Mackay and gave judgment against the defendant, who is the present applicant, in favour of the plaintiffs, who are the respondents to this application, for $17,741.50 with interest and costs.

The proceedings arose out of a dispute between estate agents over the plaintiffs' claim to a share in the commission that was paid to the defendant on the sale of a motel by the vendor.  The parties had agreed in a letter dated 23 November 1999, which was Exhibit 4 at the trial, written by the defendant or its officer, to "conjunctional arrangements" by which the defendant undertook to pay to the plaintiff half of the commission amounting to 2.59 per cent of the total contract price to which the vendor had agreed.

The original contract of sale fell through because of the lack of finance, but shortly afterwards a second contract was entered into and duly completed by the same parties on the same or not materially different terms.

The defendant contended that the conjunctional arrangements established by the November letter did not extend to the sale resulting from the second contract.  The magistrate accepted this contention.  He did so on the impression he formed of that letter and the other documents as being inter-related, with the consequence, or so he held, that the defendant's authority or appointment to act had expired before the second contract was entered into.

The learned District Court Judge adopted a different view of the letter and other documents forming the arrangement, which led to judgment being given for the plaintiffs.  His Honour's view was one that was clearly open on the material before him.  It perhaps does less than full justice to his careful reasons for judgment to say that his decision was not plainly wrong, but that is all that we need to, or perhaps should, say on an application like this.

The case is not one that raises any important point of law, nor any question of public importance that is likely to arise again either frequently or at all, nor is the result one that involves any manifest injustice.  The amount in issue is comparatively small.  The decision turns on particular words used in a letter passing between parties that fall to be interpreted in the factual and documentary matrix that prevailed on a specific occasion in this particular case between these two parties.

There is, in my opinion, nothing in this that would or should induce the Court to exercise its discretion to grant leave to appeal against the decision in the District Court.  I would therefore refuse the application with costs.

THE PRESIDENT:  I agree.

AMBROSE J:  I agree and would simply add that in my view the letter written by one party could not, on any basis, be treated as a written contract.  At the very most it would be evidence of a pre-existing oral agreement and I agree with what Justice McPherson said that one would have to determine the effect of the agreement having regard to evidence as to the terms of the oral agreement of which this might, on its face, simply be evidence of part of it.  I also would refuse the application.

THE PRESIDENT:  The order is, the application is refused with costs.

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