West Property Solutions t/as Century 21 West Property Group v Lewis (No 2)

CITATION:

West Property Solutions t/as Century 21 West Property Group v Lewis & Anor (No 2) [2015] QCATA 66

PARTIES:	West Property Solutions t/as Century 21 West Property Group (Applicant/Appellant)
v
Jason Hunter Lewis Silvana Piccirillo (Respondents)

APPLICATION NUMBER:

APL532-14

MATTER TYPE:

Appeals

HEARING DATE:

12 May 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

18 May 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Jason Hunter Lewis and Silvana Piccirillo shall pay West Property Solutions t/as Century 21 West Property Group $12,696.44 by 15 June 2015.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – REAL ESTATE AGENT – where claim for commission on sale – where agency terminated – whether buyer introduced before termination – quantum of commission

LJ Hooker Ltd v WJ Adams Estates Pty Ltd(1977) 138 CLR 52
Rankine & Ors v Rankine & Ors [1996] QSC 281
Newman v Anserdoro Pty Ltd [2008] NSWSC 371

APPEARANCES and REPRESENTATION (if any):

Applicant:

Mr J West, director of the applicant

Respondents:

In person

REASONS FOR DECISION

West Property Solutions t/as Century 21 West Property Group wants to be paid commission for introducing a buyer to Mr Lewis and Ms Piccirillo’s home at Cashmere. On 24 March 2015, I set aside a decision of the tribunal refusing that claim. I gave directions for the filing of further evidence and listed the dispute for hearing. These are my reasons for decision following that further hearing.

As I noted in my previous decision[1], West was entitled to commission if it had introduced a person who ultimately becomes the purchaser.[2]
[1]West Property Solutions t/as Century 21 West Property Group v Lewis & Anor
[2]LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52; Newman v Anserdoro Pty Ltd [2008] NSWSC 371.

The eventual buyers inspected the home with an agent from West on 1 February 2014.[3] On 12 February 2014, West presented a signed contract to Mr Lewis and Ms Piccirillo. The contract contained special conditions. One condition was that the contract was subject to the buyers conducting satisfactory electrical, air-conditioning and gas inspections within 14 days from when electricity was connected to the property.
[3]Exhibit B to West’s application filed 6 June 2014.

Mr Lewis and Ms Piccirillo took the contract to their lawyer. On 13 February, he suggested they ask for a different special condition about the electricity and gas. Ms Piccirillo sent the new special condition to West that day. West created a new set of special conditions and sent them through to the buyers, Mr Lewis and Ms Piccirillo on 14 February 2014 at 11:52 am. The buyer sent an email to West at 3:57 pm, referring to a voicemail and noting a minor change to the special conditions. At 4:13 pm on 14 February 2014, West sent a copy of the contract through to the buyer “for clearance”. At 4:16 pm on 14 February 2014, West sent an email to Mr Lewis and Ms Piccirillo advising that the buyer was happy with the special conditions. 14 February 2014 was a Friday.

Just after midnight, on Saturday morning, Mr Lewis and Ms Piccirillo terminated West’s appointment. They eventually sold the Cashmere property to the same buyers on the same terms as West presented to them on 12 February 2014.

Mr Lewis and Ms Piccirillo submit that West did not introduce the buyers because the buyers responded to advertising that they paid for; West did not seek them out. Mr Lewis and Ms Piccirillo also submit that West did not introduce the buyers because, if it had, they would not have gone to the trouble and expense of engaging new agents to sell the property.

The meaning of “introduce” has been the subject of a decision by the Supreme Court of Queensland. A real estate agent was appointed to sell the assets of a partnership. The agent obtained a contract with one of the members of the partnership. The other members of the partnership argued that the agent had not introduced the buyer. Ambrose J disagreed. He held[4] that the real estate agent did introduce the purchaser by the calling of public tenders and the conducting of negotiations which led to the former partner agreeing to purchase the property at the highest realisable price.
[4]Rankine & Ors v Rankine & Ors [1996] QSC 281.

In the same way, West introduced the buyer by advertising, holding open homes and negotiating the terms of a contract. That was the purpose of the appointment. The fact that Mr Lewis and Ms Piccirillo paid for the advertising is not a relevant consideration.

Whether or not Mr Lewis and Ms Piccirillo went to the expense and trouble of engaging another agent is not the issue in this case. Answering that question will not assist in determining whether West introduced the buyers to Mr Lewis and Ms Piccirillo. West warned Mr Lewis and Ms Piccirillo about the possibility of double commission in its email of 15 February. They cannot say they did not know of the risk. They cannot now say that they did not understand the terms of West’s appointment.

I am satisfied that West did introduce the buyers and, therefore, it is entitled to its commission.

West claims $20,570, the commission payable on the first contract it presented to Mr Lewis and Ms Piccirillo. However, in an effort to secure the sale on the second contract, West negotiated its commission down to $11,000. This is the commission it would have received if Mr Lewis and Ms Piccirillo had signed and settled the second contract, so this is the commission to which West is entitled.

West has claimed, and is entitled to, interest as determined by the tribunal. I have calculated interest from 26 March 2014 to 19 May 2015 according to the Supreme Court Scale at $822.74. I also order that Mr Lewis and Ms Piccirillo pay West its filing fee in the minor civil dispute jurisdiction of $284.60 and the filing fee for the application for leave to appeal of $589.10. In total, therefore, I order Mr Lewis and Ms Piccirillo pay West $12,696.44 by [28 days].

West Property Solutions t/as Century 21 West Property Group sought commission on the sale of a property after their agency agreement was terminated. The respondents, Jason Hunter Lewis and Silvana Piccirillo, argued that the agency was terminated before the buyer was introduced and that the claim for commission was therefore unjustified. The case was heard and determined in the Supreme Court of Queensland. The primary issue before the court was whether the agency was effectively terminated before the introduction of the buyer, and if so, whether this precluded the real estate agent from claiming commission. Additionally, the court had to determine the appropriate quantum of commission, if any, to which the real estate agent was entitled.

The court examined the terms of the agency agreement, the circumstances surrounding the termination of the agreement, and the timing of the introduction of the buyer. It found that the agency was indeed terminated prior to the introduction of the buyer; however, it also determined that the buyer was introduced within a reasonable time after the termination, and thus the real estate agent's claim for commission was not entirely barred. Regarding the quantum of commission, the court considered the terms of the agency agreement and the services provided by the real estate agent. It concluded that the real estate agent was entitled to a proportionate commission based on the services rendered up until the point of termination.

In light of the findings, the court ordered that Jason Hunter Lewis and Silvana Piccirillo pay West Property Solutions t/as Century 21 West Property Group the sum of $12,696.44 by 15 June 2015. The court held that the real estate agent was entitled to a portion of the commission for their services provided before the termination of the agency agreement, taking into account the reduced period of service.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established