Trappando Pty Ltd v Sunshine Group Pty Ltd - [2023] QSC 87

SUPREME COURT OF QUEENSLAND

CITATION:

Trappando Pty Ltd v Sunshine Group Pty Ltd [2023] QSC 87

PARTIES:

TRAPPANDO PTY LTD ACN 112 828 958

(Plaintiff)

v

SUNSHINE GROUP AUSTRALIA PTY LTD ACN 168 390 083

(Defendant)

FILE NO/S:

CS 154 of 2022

DIVISION:

Trial Division

PROCEEDING:

Trial

DELIVERED ON:

4 May 2023

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2023, Cairns

JUDGE:

Bowskill CJ

ORDERS:

There will be judgment for the plaintiff on its claim; and the counterclaim is dismissed. The parties are to provide an appropriate draft order, including the amount for interest. I will hear the parties as to costs.

CATCHWORDS:

CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – AGENT’S COMMISSION – where the plaintiff was appointed as the defendant’s real estate agent to sell the defendant’s property by way of a Form 6 appointment – where a contract of sale was entered into, but later terminated for the buyer’s breach, and the deposit forfeited – where the plaintiff seeks to recover the agent’s commission, on the basis that it was the effective cause of the sale and is entitled to its commission despite the termination of the contract – whether the plaintiff was properly appointed as the defendant’s real estate agent – whether the plaintiff was the effective cause of sale – whether the plaintiff was the effective cause of sale within the term of the appointment

Property Occupations Act 2014 (Qld), s 20, s 88, s 89, s 104, s 105, s 109(1)

Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567; [1996] QCA 241
Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52

COUNSEL:
C J Ryall, for the plaintiff

M Jonsson KC, for the defendant

SOLICITORS:
O’Reilly Stevens Lawyers, for the plaintiff

Preston Law, for the defendant

The plaintiff (Trappando) carries on the business of a real estate agency under the name “Andersons Real Estate” at Mission Beach in North Queensland. Trappando holds a real estate agent’s licence under the Property Occupations Act 2014 (Qld). Mr Grahame Anderson is the Sales Manager for Andersons Real Estate. His wife, Mrs Lyn Anderson, is the sole director of Trappando. Mr Anderson is not a director. No issue was taken in this proceeding about Mr Anderson’s ability to bind the company Trappando, when signing documents on its behalf.[1]
[1]Cf s 126 of the Corporations Act 2001 (Cth).
The defendant (Sunshine Group) was, at the material times, the owner of a substantial property, of some 500 acres, located in Jackey Jackey Street, South Mission Beach. Mr David Sun is the director of Sunshine Group.
In circumstances to be…

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: [2023] QSC 87
Decision Date: 4 May 2023

CaseChat Overview and Summary

Trappando Pty Ltd sought to recover its real estate agent's commission from Sunshine Group Pty Ltd, following the termination of a contract of sale and forfeiture of the deposit. The dispute centred on whether Trappando was properly appointed as the defendant's agent, whether it was the effective cause of the sale, and if it was the effective cause within the term of its appointment. The case was heard in the Supreme Court of Victoria. The court needed to determine whether Trappando was correctly appointed as Sunshine Group's real estate agent, whether it was the effective cause of the sale, and if it was the effective cause within the term of its appointment as outlined in the May 2019 appointment. The court considered the evidence presented and concluded that Trappando was properly appointed, was the effective cause of the sale, and was the effective cause within the term of the appointment. The court found that a contract of sale was entered into with a buyer during the term of the open listing, and Trappando introduced the buyer to the property on 17 August 2019.

The court rejected Sunshine Group's arguments that Trappando was not the effective cause of the sale and that the proceeding was defective due to the absence of a joint-obligee. The court held that the precondition to Trappando claiming commission under the May 2019 appointment, as set out in clause 5.1, was satisfied. The court dismissed Sunshine Group's counterclaim relating to the balance of the forfeited deposit and the additional claim to recover the remaining $3,000 paid to Mr Soh. The court ordered that there will be judgment for Trappando on its claim and that Sunshine Group's counterclaim is dismissed. The parties were to provide an appropriate draft order, including the amount for interest, and the court would hear the parties as to costs.

Orders

Orders of the court

There will be judgment for the plaintiff on its claim; and the counterclaim is dismissed. The parties are to provide an appropriate draft order, including the amount for interest. I will hear the parties as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The final point relied on by the defendant – that the proceeding suffers a fatal defect because Mr Soh, a joint-obligee, was not joined as a party – depended upon the acceptance of the point just dealt with. It is unnecessary to say anything more about that. Conclusion In the result, the plaintiff’s claim succeeds because the precondition to it claiming commission under the May 2019 appointment, set out in clause 5.1, was satisfied – a contract of sale of the property with a buyer was entered into, during the term of the open listing, and the plaintiff was the effective cause of sale within that term – having introduced the buyer to property on 17 August 2019. There will be judgment for the plaintiff on its claim. In so far as the defendant’s counterclaim relates to balance of the forfeited deposit, it is dismissed. In relation to the additional claim to recover the remaining $3,000 of the money paid to Mr Soh, that is also dismissed. It is apparent from the variation made to the Deed of Agreement, referred to in paragraph [29] above, that the obligation to repay the $3,000 is upon Mr Soh, not Mr Anderson; and certainly not the plaintiff (which is not a party to the Deed of Agreement). I will hear the parties as to the appropriate form of order (including as to the interest component and as to costs).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Trappando Pty Ltd v Sunshine Group Pty Ltd [2023] QSC 87
PARTIES:	TRAPPANDO PTY LTD ACN 112 828 958 (Plaintiff) v SUNSHINE GROUP AUSTRALIA PTY LTD ACN 168 390 083 (Defendant)
FILE NO/S:	CS 154 of 2022
DIVISION:	Trial Division
PROCEEDING:	Trial
DELIVERED ON:	4 May 2023
DELIVERED AT:	Brisbane
HEARING DATE:	7 March 2023, Cairns
JUDGE:	Bowskill CJ
ORDERS:	There will be judgment for the plaintiff on its claim; and the counterclaim is dismissed. The parties are to provide an appropriate draft order, including the amount for interest. I will hear the parties as to costs.
CATCHWORDS:	CONVEYANCING – THE CONTRACT AND CONDITIONS OF SALE – AGENT’S COMMISSION – where the plaintiff was appointed as the defendant’s real estate agent to sell the defendant’s property by way of a Form 6 appointment – where a contract of sale was entered into, but later terminated for the buyer’s breach, and the deposit forfeited – where the plaintiff seeks to recover the agent’s commission, on the basis that it was the effective cause of the sale and is entitled to its commission despite the termination of the contract – whether the plaintiff was properly appointed as the defendant’s real estate agent – whether the plaintiff was the effective cause of sale – whether the plaintiff was the effective cause of sale within the term of the appointment Property Occupations Act 2014 (Qld), s 20, s 88, s 89, s 104, s 105, s 109(1) Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567; [1996] QCA 241 Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52
COUNSEL:	C J Ryall, for the plaintiff M Jonsson KC, for the defendant
SOLICITORS:	O’Reilly Stevens Lawyers, for the plaintiff Preston Law, for the defendant