Trueman v Hum & Fea Pty Ltd - [2018] QCATA 179

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Trueman v Hum & Fea Pty Ltd [2018] QCATA 179

PARTIES:

CHRISTINE ELIZABETH TRUEMAN
(applicant/appellant)

v

HUM & FEA PTY LTD T/A HUM & FEA

(respondent)

APPLICATION NO/S:

APL368-17

ORIGINATING APPLICATION NO/S:

MCD043-17

MATTER TYPE:

Appeals

DELIVERED ON:

23 November 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

Leave to appeal refused. Appeal dismissed.

CATCHWORDS:

APPEAL – general principles – right of appeal – denial of natural justice – parties not given opportunity to call evidence or cross-examine – LEAVE TO APPEAL – mixed fact and law

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Bradlyn Nominees Pty Ltdv Saikovski [2012] QCATA 39
Dearman v Dearman (1908) 7 CLR 549
Fox v Percy (2003) 214 CLR 118
Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154
Laing Anor v Kokkinos & Anor (No 2) [2013] QCATA 247

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Chilli Law

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

This is an application for leave to appeal the decision of an Adjudicator sitting at Southport. The claim before the Adjudicator was for the balance of commission owing to a real estate agent on the sale of a residential property. There was a cross claim for overpayment of the commission which was later amended to claim return of all of the commission. In issue before the Adjudicator was what was the rate of commission that had been agreed upon on a successful sale.
The facts are set out in the Adjudicators detailed reasons for his decision. I have extracted and set out below the relevant findings.
Evidence and Findings
The formalities of the engagement of Ruth Fea of Hum & Fea as selling agent were not contested. Initially, it was for an exclusive agency from 12 July 2016 to 9 September 2016 and thereafter as an open listing. The Adjudicator noted that it was agreed between the parties that Hum & Fea were the effective cause of the sale.[1]
[1]Transcript 1-30 Line 5-10
The Form 6 completed and signed by the parties appointing Hum & Fea as agents set the commission at 3%. It seemed not to be contested that Ms Trueman, at the time of signing, queried whether the commission was negotiable. Ms Fea responded that “… if Ms Trueman didn’t get the amount she required to make the deal work then it could be negotiated at the time”.
During the term of the appointment Ms Fea introduced a prospective purchaser, a Mr Taylor, to Ms Trueman. He made an offer of $855,000. Ms Trueman texted Ms Fea that she wanted $850,000 clear. I should interpolate here that nearly all communications, between Ms Trueman and Ms Fea, are contained in text messages which were in evidence before the Adjudicator.
Ms Fea agreed to limit her commission, otherwise payable at 3% to $5,000. The Adjudicator found that…

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: [2018] QCATA 179
Decision Date: 23 November 2018

CaseChat Overview and Summary

The case of Trueman v Hum & Fea Pty Ltd involved Ruth Trueman, the appellant, and Hum & Fea Pty Ltd, the respondent. The dispute centred on the interpretation and enforcement of an agency agreement for the sale of real property, specifically the commission payable to the respondent. The Queensland Civil and Administrative Tribunal (QCAT) was the primary decision maker, and the appellant sought to appeal that decision to a higher tribunal.

The central legal issue was whether the Adjudicator's decision to enforce the commission at 3% of the sale price, as stipulated in the agency agreement, was correct. The appellant argued that the Adjudicator failed to accord her natural justice by not allowing the parties to call oral evidence and cross-examine witnesses. The appellant also contended that the Adjudicator improperly applied the doctrine of promissory estoppel, which could have led to a lesser commission being payable.

In dismissing the appeal, the tribunal found that the Adjudicator's decision was not erroneous. The tribunal held that the appellant, who was legally qualified, signed the agency agreement without qualification, and therefore, she was bound by its terms. The tribunal also found that the appellant had waived her right to renegotiate the commission and that her request for confirmation of commission was not an attempt to renegotiate but related to a different matter. The tribunal concluded that the appeal did not present a question of general importance or a reasonably arguable case of error in the primary decision.

As a result, the tribunal refused leave to appeal and dismissed the appeal. The primary decision of the Adjudicator to enforce the commission at 3% of the sale price remained intact.

Orders

Orders of the court

Leave to appeal refused. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The facts are set out in the Adjudicators detailed reasons for his decision. I have extracted and set out below the relevant findings.Evidence and Findings The formalities of the engagement of Ruth Fea of Hum & Fea as selling agent were not contested. Initially, it was for an exclusive agency from 12 July 2016 to 9 September 2016 and thereafter as an open listing. The Adjudicator noted that it was agreed between the parties that Hum & Fea were the effective cause of the sale.[1][1]Transcript 1-30 Line 5-10 The Form 6 completed and signed by the parties appointing Hum & Fea as agents set the commission at 3%. It seemed not to be contested that Ms Trueman, at the time of signing, queried whether the commission was negotiable. Ms Fea responded that “… if Ms Trueman didn’t get the amount she required to make the deal work then it could be negotiated at the time”. During the term of the appointment Ms Fea introduced a prospective purchaser, a Mr Taylor, to Ms Trueman. He made an offer of $855,000. Ms Trueman texted Ms Fea that she wanted $850,000 clear. I should interpolate here that nearly all communications, between Ms Trueman and Ms Fea, are contained in text messages which were in evidence before the Adjudicator. Ms Fea agreed to limit her commission, otherwise payable at 3% to $5,000. The Adjudicator found that the acceptance of the lower commission was conditional on the contract settling at $855,000. A contract was signed but Ms Trueman terminated it on 9 December 2016. There was a second offer by Mr Taylor and Ms Trueman agreed to sign a new contract for the same price with commission ‘at the same as the other agent’. It was superseded by further negotiations. Ms Fea in a text message exchange on 12 December 2016 informed Ms Trueman that the other agent was charging 1.5% and proposed a commission rate of 1% plus GST. Ms Trueman countered $6,500. Ms Fea texted:Don’t want to lose the deal for buyers - if they agree to $885k, then I’ll do $6,500 - deal Ms Trueman agreed. That contract did not proceed. A further prospective purchaser emerged through a different agent and as the Adjudicator found introduced an element of competition for the property. An offer of $890,000 was made and Ms Trueman asked Ms Fea if Mr Taylor could better the offer. Mr Taylor increased his offer to $892,000 which Ms Trueman accepted and a new contract was drawn up and signed. Prior to signing the contract Ms Trueman sent Ms Fea another text as follows:Can u please email confirming commission please, k looks all ok Ms Fea, at the time, did not respond to the requested information. Ms Fea, subsequently charged commission of $26,760 at a rate of 3% in accordance with her appointment. Hum & Fea paid Ms Trueman the balance of their claimed commission after deducting $6,500 following demand for payment by Ms Trueman but they reserved their rights to bring these proceedings to recover the amount.Grounds of appeal Essentially, on matters of law, Ms Trueman alleges that she was not accorded natural justice or procedural fairness. More specifically she says that the Adjudicator failed to give the parties an opportunity to call oral evidence and to cross examine witnesses.

Decision

Reasons for decision

Failing to properly apply the doctrine of promissory estoppel in favour of the applicant.The Adjudicator’s decision The Adjudicator found that the Appointment signed and initialed by Ms Trueman, contained Clause 15 which was to the effect that:This document constitutes the entire agreement of the parties with respect to the subject matter of this document and supersedes all prior negotiations or expressions of intent or understandings with respect to the appointment of the Agent to the property. The Adjudicator found a collateral oral agreement existed between Ms Trueman and Ms Fea to the effect that if Ms Trueman didn’t get an offer in the amount she required to make the deal work then the commission could be negotiated, it was conditional upon the contract settling for a figure that enabled Ms Trueman to clear $850,000 or a particular sale contract ‘to work’, otherwise the 3% commission applied. He referred to a text message from Ms Trueman to Ms Fea on 29 November 2016 where Ms Trueman said ‘… I want to clear $850 the rest is up to you’. The Adjudicator found it both contextually and inherently improbable, as was contended by Ms Trueman, that the agent:… was well aware and it had been discussed that at no time would the Vendor ever pay commission at that rate and it did not matter what amount or rate was inserted into the original Form 6 as all commission would be negotiated with each and every offer and eventual sale. He noted that Ms Trueman, who was legally qualified and experienced, signed the Appointment without alteration or qualification. The Adjudicator found that Ms Trueman could have renewed negotiation with the agent to limit commission to less than 3% on the $892,000 sale but did not do so and abandoned and waived the right to negotiate a lesser commission. He further found that Ms Trueman’s request that Ms Fea confirm commission by email was not a request to negotiate commission on the $892,000 at a lesser percentage (or figure) than 3%, but related to another matter. Leave to Appeal An appeal in minor civil disputes can only be brought with the leave of the Appeal Tribunal. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant will obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error.[2][2]Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154 [7]Conduct of the hearing The hearing took place over 2 days, on 1 and 27 June 2017. On the first day Ms Trueman sought and was granted an adjournment of the hearing to amend her cross claim for return of the deposit already paid of $6,500 on the basis that the agent had no entitlement to commission. In the course of the hearing both parties were administered an oath or affirmation.[3] The Adjudicator then had Ms Fea swear the truth of the facts set out in the Respondent’s application and reply filed in the Tribunal.[4] Ms Trueman affirmed the truth of the material contained in her response filed in the Tribunal.[5][3]Transcript 1-24 line 33[4]Transcript 1-25 lines 1 – 15 and 1-27 lines 15 -20[5]Transcript 1-27 lines 5 - 10

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Trueman v Hum & Fea Pty Ltd [2018] QCATA 179
PARTIES:	CHRISTINE ELIZABETH TRUEMAN (applicant/appellant)
v
HUM & FEA PTY LTD T/A HUM & FEA (respondent)
APPLICATION NO/S:	APL368-17
ORIGINATING APPLICATION NO/S:	MCD043-17
MATTER TYPE:	Appeals
DELIVERED ON:	23 November 2018
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member King-Scott
ORDERS:	Leave to appeal refused. Appeal dismissed.
CATCHWORDS:	APPEAL – general principles – right of appeal – denial of natural justice – parties not given opportunity to call evidence or cross-examine – LEAVE TO APPEAL – mixed fact and law Queensland Civil and Administrative Tribunal Act 2009 (Qld) Bradlyn Nominees Pty Ltdv Saikovski [2012] QCATA 39 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Kokoda Spirit Pty Ltd v Harris [2011] QCATA 154 Laing Anor v Kokkinos & Anor (No 2) [2013] QCATA 247
REPRESENTATION:
Applicant:	Self-represented
Respondent:	Chilli Law
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).