Urban Property Agents Pty Ltd v Vann - [2020] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:

Urban Property Agents Pty Ltd v Vann & Anor [2020] QDC 226

PARTIES:

URBAN PROPERTY AGENTS PTY LTD
(ACN 140 649 225)

(appellant)

v

PHILLIPPA MARY VANN
(first respondent)

AND

NATHANIEL JOHN VANN

(second respondent)

FILE NO/S:

3073/19

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

11 September 2020

DELIVERED AT:

District Court at Brisbane

HEARING DATE:

6 April 2020

JUDGE:

Sheridan DCJ

ORDER:

1.     Appeal dismissed.

2.     The appellant to pay the first and second respondents’ indemnity costs in relation to the preparation of the costs appeal, fixed in an amount of $4,490.20.

3.     Otherwise, unless the parties make written submissions as to costs within 14 days of the date of this judgment, the appellant pay the costs of the first and second respondents of the appeal on the standard basis.

CATCHWORDS:

PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – EFFECTIVE CAUSE OF SALE – where agent for appellant introduced prospective purchasers to property owned by respondents – where agent for the appellant prepared and delivered draft contract of sale to purchasers – where respondents refused to accept contract on terms proposed by agent for appellant – where second agent sold purchasers’ property and prepared contract for sale of respondents’ property – where contract prepared by second agent subsequently executed and settled by respondents and purchasers – where appellant sought payment of commission for sale of property – where trial magistrate found that agent for appellant was not effective cause of sale – whether agent for appellant entitled to commission – whether agent for appellant was effective cause of sale

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where solicitors for respondents served appellant with offer to settle – where offer to settle sent shortly after claim filed and before defence had been filed – where appellant rejected offer – where trial magistrate found it was unreasonable for appellant to reject offer – where trial magistrate ordered appellant to pay respondents’ costs on indemnity basis – where appellant’s notice of appeal did not raise cost decision – where at hearing of appeal appellant sought leave to read and file amended notice of appeal out of time – where amended notice of appeal contained additional ground of appeal relating to trial magistrate’s cost decision – whether rejection of offer was unreasonable

District Court of Queensland Act 1967 (Qld), s 113

Uniform Civil Procedure Rules 1999 (Qld), r 766, r 785(1)

Allesch v Maunz (2000) 203 CLR 172, cited
Burchell v Gowrie [1910] AC 614, cited

Dwyer v Calco Timbers (2008) 234 CLR 124, cited

Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117, cited
Fox v Percy (2003) 214 CLR 118, cited
Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13…

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: [2020] QDC 226
Decision Date: 11 September 2020

CaseChat Overview and Summary

Urban Property Agents Pty Ltd initiated legal proceedings against the Vann family, seeking commission for their role in facilitating the sale of a property. The Vanns had engaged Urban Property Agents to sell their property, but later sold it through another agent, refusing to accept Urban Property Agents' contract terms. Urban Property Agents argued that they were the effective cause of the sale and thus entitled to commission. The dispute reached the Court of Appeal, which had to determine whether Urban Property Agents were indeed the effective cause of the sale, entitling them to commission, and whether the trial magistrate's decision on costs was correct.

The court examined the criteria for determining the effective cause of a sale, considering whether Urban Property Agents' efforts were the proximate cause of the transaction. The court also addressed the procedural issue of the reasonableness of the appellant's rejection of a settlement offer made by the respondents' solicitors. The trial magistrate had found that the rejection was unreasonable and ordered the appellant to pay indemnity costs. The appellant's appeal did not initially challenge this cost decision, but later sought to amend its notice of appeal to include this ground. The court had to decide whether this amendment was permissible and if the rejection of the settlement offer was indeed unreasonable.

The Court of Appeal dismissed the appeal, finding that Urban Property Agents were not the effective cause of the sale. Consequently, they were not entitled to commission. The court held that the appellant's rejection of the settlement offer was unreasonable, affirming the trial magistrate's decision on costs. The appellant was ordered to pay the respondents' indemnity costs for the preparation of the costs appeal, and further costs of the appeal on the standard basis unless the parties submitted written submissions within 14 days of the judgment.

Orders

Orders of the court

1. Appeal dismissed.

2. The appellant to pay the first and second respondents’ indemnity costs in relation to the preparation of the costs appeal, fixed in an amount of $4,490.20.

3. Otherwise, unless the parties make written submissions as to costs within 14 days of the date of this judgment, the appellant pay the costs of the first and second respondents of the appeal on the standard basis.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Urban Property Agents Pty Ltd v Vann & Anor [2020] QDC 226
PARTIES:	URBAN PROPERTY AGENTS PTY LTD (ACN 140 649 225) (appellant) v PHILLIPPA MARY VANN (first respondent) AND NATHANIEL JOHN VANN (second respondent)
FILE NO/S:	3073/19
DIVISION:	Civil
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court at Brisbane
DELIVERED ON:	11 September 2020
DELIVERED AT:	District Court at Brisbane
HEARING DATE:	6 April 2020
JUDGE:	Sheridan DCJ
ORDER:	1. Appeal dismissed. 2. The appellant to pay the first and second respondents’ indemnity costs in relation to the preparation of the costs appeal, fixed in an amount of $4,490.20. 3. Otherwise, unless the parties make written submissions as to costs within 14 days of the date of this judgment, the appellant pay the costs of the first and second respondents of the appeal on the standard basis.
CATCHWORDS:	PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – EFFECTIVE CAUSE OF SALE – where agent for appellant introduced prospective purchasers to property owned by respondents – where agent for the appellant prepared and delivered draft contract of sale to purchasers – where respondents refused to accept contract on terms proposed by agent for appellant – where second agent sold purchasers’ property and prepared contract for sale of respondents’ property – where contract prepared by second agent subsequently executed and settled by respondents and purchasers – where appellant sought payment of commission for sale of property – where trial magistrate found that agent for appellant was not effective cause of sale – whether agent for appellant entitled to commission – whether agent for appellant was effective cause of sale PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – OFFERS OF COMPROMISE, PAYMENTS INTO COURT AND SETTLEMENTS – INFORMAL OFFERS AND CALDERBANK LETTERS – UNREASONABLE REFUSAL OF OFFER – where solicitors for respondents served appellant with offer to settle – where offer to settle sent shortly after claim filed and before defence had been filed – where appellant rejected offer – where trial magistrate found it was unreasonable for appellant to reject offer – where trial magistrate ordered appellant to pay respondents’ costs on indemnity basis – where appellant’s notice of appeal did not raise cost decision – where at hearing of appeal appellant sought leave to read and file amended notice of appeal out of time – where amended notice of appeal contained additional ground of appeal relating to trial magistrate’s cost decision – whether rejection of offer was unreasonable District Court of Queensland Act 1967 (Qld), s 113 Uniform Civil Procedure Rules 1999 (Qld), r 766, r 785(1) Allesch v Maunz (2000) 203 CLR 172, cited Burchell v Gowrie [1910] AC 614, cited Dwyer v Calco Timbers (2008) 234 CLR 124, cited Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117, cited Fox v Percy (2003) 214 CLR 118, cited Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13…