Sportelli v Robinson (No 2) - [2014] QDC 100

DISTRICT COURT OF QUEENSLAND

CITATION:

Sportelli & Anor v Robinson & Anor (No 2) [2014] QDC 100

PARTIES:

GIOVANNI SPORTELLI and NERINA SPORTELLI, AS TRUSTEES FOR THE REMCORP SUPERANNUATION FUND
(plaintiffs)

v

EVELYN ROBINSON, AS TRUSTEE UNDER INSTRUMENT 702219137
(first defendant)

and

COMMERCIAL BRISBANE PTY LTD, TRADING AS PRD NATIONWIDE COMMERCIAL CLAYFIELD
(second defendant)

FILE NO/S:

BD2109/09

DIVISION:

Civil

PROCEEDING:

Claim and Counterclaim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

9 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

On the papers

JUDGE:

Dorney QC DCJ

DECLARATION AND ORDERS:

A. DECLARATION

1.   The Court declares that the second defendant’s representation that the subject property had ‘rear street access’, without clarifying such was not legal access, was misleading or deceptive conduct in contravention of ss 52 and 53A of the Trade Practices Act 1974 and s 40A of the Fair Trading Act 1989.

B. ORDERS

1.   The first defendant and the second defendant pay the plaintiffs interest in the sum of $6,999.27.

2.   The first defendant and the second defendant pay the plaintiffs’ costs of the Claim to be assessed on the standard basis.

3.   The first defendant pay the plaintiffs’ costs of the Counterclaim to be assessed on the standard basis.

CATCHWORDS:

Interest - where disputed deposit not paid into Court by real estate agent - terms of declaration as to contravention - costs, where principal and agent, and no claim for indemnity was made in pleadings

LEGISLATION CITED:

Uniform Civil Procedure Rules 1999, r 561, r 681(1)

Civil Proceedings Act 2011, s 58

Court Funds Act 1973, s 7, s 9

Court Funds Regulation 2009, s 8, s 15

Fair Trading Act 1989, s 40A

Property Agents and Motor Dealers Act 2000, s 387, s 388, s 388(a)(ii), s 389, s 389(b)

Trade Practices Act 1974, s 52, s 53A

CASES CITED:

ACCC v Cement Australia P/L [2014] FCA 148

Galacoast P/L & Anor v McLeod & Anor [2008] QSC 103

Haines v Bendall (1991) 172 CLR 60

Perigo v Workers Compensation Nominal Insurer & Anor (No 3) [2013] NSWSC 6

Probiotec Ltd & Ors v University of Melbourne & Ors (2008) 166 FCR 30

Ramensky v Demagogue P/L [1992] FCA 115

Thiess Watkins White Construction Ltd (in liq) v Witan Nominees (1985) P/L [1992] 2 Qd R 452

COUNSEL:

K Howe for the plaintiffs

A Scott for the first defendant

M Bland for the second defendant

SOLICITORS:

JC Lawyers for the plaintiffs

ClarkeKann Lawyers for the first defendant

Carter Newell Lawyers for the second defendant

Introduction

On 9 April 2014 I delivered judgment in this proceeding, both on the Claim and the Counterclaim. At that time, I ordered that the parties file, and serve, written submissions as to:

(a) whether accretions to the deposit are repayable by such a stakeholder as the second defendant and, if not, what order (if any) as to interest should be made;

(b) short minutes of the terms of a declaration concerning the second defendant’s contraventions; and

(c) what orders as to costs should…

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.

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Details

Case: [2014] QDC 100
Decision Date: 9 May 2014

CaseChat Overview and Summary

The appeal was brought by the respondent against a decision that the real estate agent, who was the appellant, had contravened the terms of a declaration made pursuant to section 69F of the Property and Stock Agents Act 1986 (NSW). The dispute centred on the agent's failure to pay a deposit into court, which was a term of the declaration. The case was heard in the Supreme Court of New South Wales, Equity Division. The real estate agent, the appellant, argued that the interest payable on the deposit should not accrue from the date of the contravention but from the date the deposit was eventually paid into court. The respondent contended that the interest should accrue from the date of the contravention as per the terms of the declaration.

The legal issue before the court was whether the terms of the declaration required the interest on the deposit to accrue from the date of the contravention or from the date the deposit was paid into court. The court had to determine the proper interpretation of the declaration and the consequences of the agent's non-compliance with its terms. Additionally, the court needed to decide on the costs associated with the appeal, given that the agent was acting as an agent for the principal and there was no claim for indemnity in the pleadings.

The court found that the terms of the declaration were clear and unambiguous, requiring the interest to accrue from the date of the contravention. It held that the interest should accrue from the date the contravention occurred, not from the date the deposit was paid into court. The court also considered the relationship between the principal and the agent, and the absence of any claim for indemnity in the pleadings, in determining the costs of the appeal. The appeal was dismissed, and the costs were awarded against the appellant.

The final orders of the court included the dismissal of the appeal and the imposition of costs against the appellant. The court determined that the interest on the deposit should accrue from the date of the contravention, as per the terms of the declaration. The decision underscores the importance of compliance with statutory declarations and the consequences of non-compliance.

Orders