Trueman v Hum & Fea Pty Ltd
[2018] QCATA 179
•23 November 2018
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 247REPRESENTATION:
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 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.
On matters of fact/law Ms Trueman alleges the Adjudicator failed to take account of the conduct of the parties in determining whether the commission of 3% was waived and limited to $6,500.
It is further alleged that he failed to properly construct the content of the text exchanges between Ms Trueman and Ms Fea of 15 December 2016 as confirming the commission payable was limited to $6,500.
Failing to take into account the relationship between Ms Trueman and Ms Fea to reasonably infer that Ms Fea’s response in the text message ‘good’ confirmed the commission payable was $6,500.
Failing to conclude that having regard to her conduct that Ms Fea was estopped from relying on the commission noted in form 6 of 3%
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
The following exchange then took place between the Adjudicator and the parties.
ADJUDICATOR WALSH: All right. Thank you. Now, can I ask the parties this; the rest of this case is about submissions, isn’t it? You’ve sworn to the truth of your respective statements of fact and, where relevant, the cross-referenced documents.
MS TRUEMAN: All the evidence is in the, yes, documentation you already have or are yet to receive it. The rest of it will be on, as you say, questions of law, contract law, and submissions in relation to what happened on what date
ADJUDICATOR WALSH: … You may, on the next occasion, be swearing to the truth of some of what’s in your document that’s yet to reach the file; is that what you’re saying?
MS TRUEMAN: No other evidence.
ADJUDICATOR WALSH: No other evidence?
MS TRUEMAN: No.
ADJUDICATOR WALSH: Okay.
MS TRUEMAN: I’ve got everything together in those …
ADJUDICATOR WALSH: It’s just documents and submissions from your side?
MS TRUEMAN: Yes.
ADJUDICATOR WALSH: And from yours as well, Ms Fea?
MS FEA: Everything’s contained in the text messages and telephone records.[6]
[6]Transcript 1-29 lines 3 - 41
It is tolerably clear from other statements made by Ms Trueman in the course of the hearing that she considered all the evidence was before the Adjudicator.[7]
MS TRUEMAN: So today [27 June 2017] my submission is that this is not going to take long at all today. And I want to just clarify. My submissions are only 20 pages. I know there are hundreds of volumes of evidence, albeit rolling from the fact that there were text messages and emails and contracts into contracts in a form 6 and documents that I’ve submitted in relation to market analysis on my property and all of that which probably just building a picture; but they are there to paint the picture what happened and what was in the past. The issues are narrow. You’ve hit the nail on the head. We’re here today in relation to submissions about the evidence that’s already in. We’ve concluded that.
ADJUDICATOR WALSH: Correct.
MS TRUEMAN: And I was not expecting there’d be any further evidence submitted attached to submissions, and hence my objection. But certainly we are here to provide - my understanding was that - you know, within an hour and a-half or something today, this matter would be finalised and the decision would be reserved. And you indicated on the last occasion you would reserve decision, because of the number pages both parties have filed in relation to the case.[8]
[7]Transcript 1-40 lines 22 – 47 also 1-10 1 -5 (27 June 2017)
[8]Transcript 1-10 Lines 11- 30 (27 June 2017)
The remainder of the hearing on 27 June 2017 related to a timetable for the filing of further submissions.
Disposal of the Appeal
In her outline of submissions, Ms Trueman infers that she was, in some way misled by the Adjudicator in believing that the parties would be entitled to call oral evidence and to cross-examine witnesses. In respect to the former assertion she is on record as being satisfied that all of the evidence was before the Tribunal. On no occasion, on either day of the hearing did Ms Trueman mention that she wished to cross-examine Ms Fea or any other witness nor did she make any formal request to do so.
Ms Trueman submits that she believed that 3 hours was allowed for the hearing on 27 June 2017 because it would include oral evidence. That submission is inconsistent with Ms Trueman’s belief expressed in the passage set out above to the effect that she believed ‘… all of the evidence was in …’.
Objections from Ms Trueman that she was denied natural justice and procedural fairness are not borne out by the transcript. She was quite content to have the Adjudicator determine the matter on the documentary evidence that had been filed by both parties.
I have already referred to the Adjudicator’s comments that Ms Trueman was an experienced and qualified lawyer. In my opinion she was quite capable of asserting her rights before the Adjudicator if she thought necessary, and on occasions she did so. However, not only was Ms Trueman an experienced and qualified lawyer she was also a former adjudicator at Southport and former colleague of the Adjudicator.[9] I can infer from her experience as an Adjudicator that she was familiar with the procedures of the Tribunal and would not have been overwhelmed or intimidated by the manner in which the hearing was conducted. The parties agreed that the issues were of short compass[10] and dealt with conversations contained in texts and emails which were already in evidence.
[9]I should state here that the Adjudicator had at the outset of the hearing, made the appropriate declarations and enquired of the parties whether they had objection to him hearing the matter. They stated that they did not. Transcript 1-10 lines 20 -30
[10]Transcript 1-30 line 10 and 1-10 line 19 (27 June 2017)
In considering a claim of denial of natural justice it is apposite to bear in mind the matters referred to by Justice Alan Wilson, President in Laing Anor v Kokkinos & Anor (No 2)[11]
Under s 3(b) of the QCAT Act the Tribunal must deal with matters in a way that is ‘accessible, fair, just, economical, informal and quick.’ It must ensure proceedings are ‘conducted in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice’.[12] It is not bound by the rules of evidence or the practices and procedures of courts, and must act with as little formality and technicality and with as much speed as it can;[13] and, it can do ‘whatever is necessary for the speedy and fair conduct of the proceeding’.[14]
[11][2013] QCATA 247
[12]Queensland Civil and Administrative Tribunal Act 2009 s 4(c)
[13]Ibid s 28(3)(d)
[14]Ibid s 62(1)
For these reasons, I consider there is no substance in her claims that she had been denied natural justice and procedural fairness.
Other than her claims of denial of natural justice and procedural fairness the only other question of law related to the alleged failure of the Adjudicator to apply the doctrine of issue estoppel. However, the Adjudicator considered the issue and determined that on the evidence as he found it there was no basis for application of the doctrine as there was no representation or promise made in relation to the $892,000 contract. Particularly, he found that the response by Ms Fea of ‘all good’ was not a response to Ms Trueman’s query about the commission but related to another matter entirely.[15]
[15]Reasons paragraph [62] (g)
Findings of fact by a Tribunal will not usually be disturbed on appeal if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[16] As was stated by the Tribunal in Bradlyn Nominees Pty Ltdv Saikovski[17] the appeal process is not an opportunity for a party to again present their case. It is the means for correcting error made by the Tribunal which decided the proceeding.
[16]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[17][2012] QCATA 39
The remaining grounds of appeal relate to questions of fact and the Adjudicator’s findings, in my opinion were open on the evidence and should not be disturbed. Leave to appeal is refused.
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