Seaview Property Investments Pty Ltd v Spannys Whitsunday Real Estate
[2014] QCATA 244
•26 August 2014
| CITATION: | Seaview Property Investments Pty Ltd v Spannys Whitsunday Real Estate [2014] QCATA 244 |
| PARTIES: | Seaview Property Investments Pty Ltd (Applicant/Appellant) |
| v | |
| Spannys Whitsunday Real Estate (Respondent) |
| APPLICATION NUMBER: | APL282 -14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Thomas, President |
| DELIVERED ON: | 26 August 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 21 February 2014 is set aside. 4. The application filed 13 December 2013 is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – PROPERTY AGENTS – where claim for commission – where tribunal found agent effective cause of sale – whether grounds for leave to appeal PROPERTY AGENTS – where appointment as agent expired – where reappointment signed after appointment expired – whether reappointment valid – where claim for commission – whether agent entitled to commission PROCEDURE – where statutory declaration from witness – where witness not at hearing – where witness available to give evidence by telephone – where tribunal considered cross examination of witness necessary – where tribunal did not call witness – whether tribunal complied with statutory obligations Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(3)(b), s 32(1), s 98(1)(c), s 142(3)(a)(i) 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
In April 2012, Seaview Property Investments Pty Ltd appointed Spannys Whitsunday Real Estate as agent to sell a property. The appointment was an exclusive agency from 4 April 2012 to 4 June 2012. Seaview signed a reappointment on 28 June 2012 for the period 28 June 2012 to 27 August 2012, a second reappointment on 27 August 2012 for the period 27 August 2012 to 26 October 2012 and a third reappointment on 3 November 2012 for the period 1 November 2012 to 31 December 2012.
Over Christmas 2012, a prospective purchaser, Mr Towler, contacted Spannys about Seaview’s property. Mr and Mrs Towler inspected the property and made a verbal offer to buy, which was not accepted.
On 27 February 2013, Spannys submitted a contract to Mr Towler. The price was acceptable to all parties but the terms were not suitable to the Towlers. On 28 February 2013, Seaview terminated its instructions to Spannys and gave notice that it was withdrawing the property from the market. On 13 March 2013, Seaview signed a contract with Mr and Mrs Towler. The price was the same as the earlier contract but contained a number of special conditions because Seaview was offering vendor finance.
Spannys filed a claim for commission on the sale. A Magistrate, sitting as a member of the tribunal ordered Seaview pay Spannys’ commission.
Seaview wants to appeal that decision. It submits the learned Magistrate erred in finding that Spannys was the effective cause of the sale. It submits the learned Magistrate placed too much weight on the short time between Seaview’s instructions withdrawing the property from the market and the execution of the contract that resulted in the sale of the property. It submits that the learned Magistrate did not have sufficient regard to the evidence of Mr Towler. It submits the learned Magistrate failed to make a finding about whether Spannys was the effective cause of sale, instead relying on the fact that Spannys introduced the Towlers to Seaview.
Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] 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.[2]
[1]QCAT Act s 142(3)(a)(i).
[2]Pickering v McArthur [2005] QCA 294 at [3].
For the reasons that follow, it is immaterial whether Spannys was the effective cause of the sale from Seaview to Mr and Mrs Towler.
Mr Towler provided a statutory declaration to the tribunal. The learned Magistrate was critical of the fact that Mr Towler was not available for cross-examination. But Mr Klein, on behalf of Seaview, told the learned Magistrate Mr Towler was available to give evidence by telephone.[3] The learned Magistrate did not take up that offer and he did not explain why.
[3]Transcript page 1-3, lines 36 – 44.
The tribunal is not bound by the rules of evidence or any practices or procedures applying to courts of record.[4] It has an obligation to deal with matters in a way that is economical.[5] It can, if appropriate, conduct part of a proceeding by remote conferencing.[6] It may cross examine a witness to the extent that it considers appropriate to obtain information relevant to performing its functions in the proceeding.[7]
[4]QCAT Act s 28(3)(b).
[5]QCAT Act s 3(b).
[6]QCAT Act s 32(1).
[7]QCAT Act s 98(1)(c).
If the learned Magistrate considered Mr Towler required cross examination, he had the power to make sure that Mr Towler was cross examined, as was offered by Seaview. Lack of cross examination is not a valid basis of criticism.
Section 140 of the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”) states that a real estate agent is not entitled to sue for commission for the performance of an activity unless at the time the activity was performed, the agent had been properly appointed.
Section 136 of PAMDA sets out the requirements for a valid reappointment of an agent. Section 136A of PAMDA states that a reappointment that does not comply with the approved form is ineffective from the time that it is made.
The appointment signed on 7 April 2012 was silent about whether, at the end of the term, the appointment would continue as an open listing. Because Seaview did not make an election, the necessary inference is that the appointment did not continue.
The approved form (PAMD Form 23 – Reappointment) makes it clear that the reappointment must be signed before the expiry of the original appointment. If the appointment has expired, then a fresh appointment is necessary (PAMD form 22A). Because the original appointment had expired, the reappointment signed on 28 June 2012 was not in the approved form and, therefore, was ineffective pursuant to s 136A.
Because the first reappointment was ineffective, it follows that all subsequent reappointments were ineffective. Because the reappointments were ineffective, Spannys was not properly appointed as required by s 140 of PAMDA and, therefore, could not sue for its commission.
The learned Magistrate was in error in finding Spannys was entitled to commission. Leave to appeal is granted and the appeal allowed. The decision of 21 February 2014 is set aside. The application filed 13 December 2013 is dismissed.
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