Australian Properties (Cairns) t/as Australian Property Connection v Till [2023] QCATA 44

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Australian Properties (Cairns) t/as Australian Property Connection v Till [2023] QCATA 44 PARTIES: AUSTRALIAN PROPERTIES (CAIRNS) T/AS AUSTRALIAN PROPERTY CONNECTION (applicant/appellant) v STEPHEN JAMES TILL (respondent) APPLICATION NO/S: APL296-21 ORIGINATING APPLICATION NO/S: MCDO13/21 (Cairns) MATTER TYPE: Appeals DELIVERED ON: 5 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Peter Murphy SC ORDERS: 1. The application for leave to appeal is dismissed. CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – FROM QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – BY LEAVE OF TRIBUNAL – where the applicant/appellant seeks to appeal a decision by a Magistrate sitting as a Tribunal Member in a minor civil dispute – whether leave to appeal should be granted – whether the applicant/appellant’s reasons for grant of leave needed to be separate from its reasons for the appeal – whether the Tribunal at first instance committed an error of law in reaching a conclusion that the applicant/appellant was not the effective cause of a completed contract of sale – whether an arguable case existed that the conclusion was not open on the evidence, against the weight of evidence, or contrary to principle Queensland Civil and Administrative Tribunal Act 2009, s 61, s 142, s 143, Sch 3 Berben v Hedditch [1982] ANZ ConvR 535, cited Croucher v Cachia [2016] NSWCA 132; (2016) 95 NSWLR 117, cited Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, cited -- 1 of 7 -- 2 LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52, cited Moore v Luxury Boat Holdings Pty Ltd [2020] WASCA 144, cited QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES & REPRESENTATION: 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 [1] In December 2015, an agreement in the required Form 6 appointed Australian Property Connection as the agent to sell a farm property owned by the trustee of Mr and Mrs Till’s superannuation fund. Dealings with APC were conducted exclusively through Ms Bergmann. [2] APC’s entitlement to commission on the sale was governed by Part 7 of the agreement (3% plus GST, “payable if a contract is entered into and settlement of the contract occurs”). [3] Clause 5.1 of the “Essential Terms and Conditions” to the agreement provided that commission is payable, relevantly, “if a contract of sale is entered into with a Buyer, whether within the term or after the term, where [Ms Bergmann] is the effective cause of the sale within the term”. [4] No date was specified for the end of the appointment. [5] On 21 April 2020, a contract for the sale of the property to Fresh Leaf Farms Limited was executed. Settlement occurred on 30 September 2020. [6] Ms Bergmann claimed commission on the sale of $26,400 on behalf of APC. Mr Till refused to pay the commission. Proceedings in the Tribunal brought by APC sought payment of that commission. [7] The issue before the Tribunal was whether APC, through Ms Bergmann, was the effective cause of the sale. More specifically, the issue was whether events between the execution of the agency agreement and the settlement of the sale had severed the required causal connection. [8] APC’s claim for commission was dismissed. It now seeks leave to appeal that decision.1 Leave to Appeal and the Basis for the Appeal [9] APC, through Ms Bergmann, is self-represented. The material filed does not evidence legal assistance in the preparation of that material. There are deficiencies within it. [10] An applicant for leave must provide a basis for the grant of leave in their application.2 1 The challenged orders are made in a “minor civil dispute”: Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”), Schedule 3, Dictionary. As a result, leave to appeal is required: QCAT Act, s 142(3)(a)(i). 2 QCAT Act, s 143(2)(b). -- 2 of 7 -- 3 [11] Arguably, s 143(2)(b) of the QCAT Act – read in light of ss 143(3), (4)(a) and (b) of that Act – contemplates the filed application specifying reasons for leave separate from reasons for the appeal. [12] If that be so, in this case the requirement should be waived.3 The Tribunal is charged with conducting proceedings informally and these proceedings involve a self- represented applicant. The basis upon which APC contends that an arguable case of error attends the decision and has consequentially caused it a substantial injustice4 is sufficiently discernible so as to allow the application to be heard. [13] The QCAT Act requires specification of the “reasons” for the appeal. Those reasons should, as do grounds of appeal in other arenas, specify the legal or factual errors relied upon. As has been said again recently: “the appeal is not the occasion to re-run the trial”.5 [14] The basis for APC’s appeal is contained in a discursive argument appended to the application. On one view, that document can be seen as simply re-agitating the factual case determined by the Tribunal - that is, an attempt to rerun the trial. [15] However, I consider it appropriate and fair to treat the document (which has been responded to in detail by Mr Till) as asserting errors of law, namely that the Tribunal’s conclusion was not open on the evidence before it or was against the weight of the evidence, or that the Tribunal’s ultimate conclusion was contrary to principle. What Facts Informed the Tribunal’s Findings? [16] Mr Pham was a director of Australian Fresh Herbs Pty Ltd. He saw the advertisement for sale of the property placed by Ms Bergmann and responded to her. She introduced Mr Pham to Mr Till in February 2018, some two months or so after the Form 6 was signed. [17] Late in February 2018, Mr Pham flew to North Queensland and was taken to the subject property by Ms Bergmann. Mr Till conducted an inspection of the property with Mr Pham without Ms Bergmann’s participation. Mr Pham was then a director of Australian Fresh Herbs Pty Ltd. [18] A few days later, Mr Pham’s co-director, Mr Vydra, flew to North Queensland to inspect the property. A primary purpose of the visit was to assess its suitability as a farm to grow herbs. Ms Bergmann was not present. [19] Mr Vydra’s uncontested evidence before the Tribunal was to the effect that the company was interested in leasing the property because the company “did not have the capital available … to purchase the Property at that point”.6 [20] Some six months later, in August 2018, Australian Fresh Herbs Pty Ltd entered a 12- month lease of the property, backdated to commence on 1 April 2018 and terminating on 31 March 2019. 3 QCAT Act, s 61(1)(c), (5). 4 For example, Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400; QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Croucher v Cachia [2016] NSWCA 132 at [130]; (2016) 95 NSWLR 117 at 142 per Leeming JA. 6 Statement of Jan Karl Vydra, 6 March 2021, at [6], accepted as accurate by Ms Bergmann, written submissions, p 3. -- 3 of 7 -- 4 [21] There was an apparently contemporaneous option to purchase prepared at that time. Both Mr Till and Mr Vydra asserted it was never executed, however there was a signed deed before the Tribunal, albeit undated. The Tribunal found it was executed. [22] The lease and option to purchase is consistent with evidence from Mr Till and Mr Vydra that, apart from lack of capital, the company did not want to purchase the property unless and until it could establish that the farm was suitable to grow the intended herbs. [23] Mr Vydra’s uncontested evidence is that all negotiations in respect of the lease and option arrangement were conducted with Mr Till and “at not stage during the course of the negotiations did [he] correspond with Ms Regine Bergmann …”.7 [24] Subsequent to the lease and option arrangement, Ms Bergmann claimed, and Mr Till paid, commission in respect of Ms Bergmann having caused the property to be leased. [25] It is now common ground that Ms Bergmann had no entitlement to that commission as the Form 6 never appointed her as agent in respect of any lease of the property. [26] Mr Vydra contends, again uncontested, that the company was not interested in purchasing the property “until we had determined that the Property was suitable for our business”. It was only once suitability was established that “we could then discuss options regarding its purchase”.8 [27] The lease having allowed the intended investigations, Mr Till and Mr Vydra commenced negotiations regarding the purchase of the property in January 2020. Those negotiations did not involve Ms Bergmann. [28] It does not appear to be in dispute that the option to purchase granted to Australian Fresh Herbs Pty Ltd expired without it being exercised. [29] Notably, those negotiations were conducted by Mr Vydra as the authorised officer of a new company, Australian Fresh Farms Ltd - a public company with, according to Mr Till, four new directors and 48 shareholders. [30] The evidence does not make clear when that public company was incorporated.9 However it seems clear that this occurred at some time after the lease expired in March 2019. [31] The lease having expired, Mr Vydra and Mr Till negotiated a periodic tenancy commencing 1 April 2020. However, shortly after, a contract of sale was negotiated by Mr Till and Mr Vydra and executed on 21 April 2020. [32] Mr Till conceded before the Tribunal that Ms Bergmann: (a) “marketed the property both online and through the production of a brochure”; (b) “initially introduced Australian Fresh Leaf Herbs to Mr Till”; 7 Statement of Jan Karl Vydra, 6 March 2021, at [10], accepted as accurate by Ms Bergmann, written submissions, p 3. 8 Statement of Jan Karl Vydra, 6 March 2021, at [14], accepted as accurate by Ms Bergmann, written submissions, p 3. 9 Reference is made to ASIC details but they are not before this appeal Tribunal. -- 4 of 7 -- 5 (c) “engaged in correspondence with Mr Pham of Australian Fresh Leaf Herbs regarding the equipment to be included in the lease agreement, and the Property’s water licence in late February and early March of 2018.”10 [33] Mr Pham was not involved in the public company and there is no evidence he was involved in negotiations for either the lease and option to purchase or the ultimate purchase.11 What Legal Principles Governed the Tribunal’s Decision? [34] APC’s entitlement to commission is governed by the terms of the contract between it and (relevantly) Mr Till. [35] Commission is not earned in this case for the introduction of the ultimate buyer. Rather, commission is payable only if APC is the “effective cause of” a completed contract of sale.12 [36] What is the effective cause of a sale is ultimately a question of fact.13 [37] Answering that question “requires a consideration and evaluation of all circumstances which may have had some causal relationship with the sale”.14 [38] Ms Bergmann places particular importance on her introduction of Mr Pham and Australian Fresh Herbs. In effect, she contends there were negotiations and work undertaken by her subsequent to that introduction of a corporation’s authorised officer who was the co-director of a person who is a director of the ultimate purchaser and who carried on negotiations which, she contends, are causally connected to the ultimate sale of the property. [39] Ms Bergmann also places reliance, in effect, on the unusual nature of the property: its marketability and value being connected with its suitability for particular farming in which the person and company introduced by her had a particular interest. She contends, for example, that she had gained “substantial knowledge about hydroponic farming” and that her knowledge was influential in setting the initial asking price which was “the platform for generating an interest in the property once a buyer enquired”.15 [40] Authority supports the proposition that “the introduction may be the critical factor” in determining effective cause, using as an example “… where the sale is of an unusual nature in which the vendor’s problem was to find a person who may be interested in the particular property”.16 [41] Equally, however: While an introduction to the property must precede any purchase, on an examination of the forces which led to the sale it may be found that the 10 Mr Till’s written submissions before the Tribunal, [11]. 11 See, for example, transcript of proceedings, p 1-8, 28 – 32; uncontested Statement Jan Karl Vydra, [12]–[15]. 12 Form 6, Part 7, Clause 5.1. There was no end date for the appointment of APC. 13 LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52. 14 Berben v Hedditch [1982] ANZ ConvR 535 quoted in Moore v Luxury Boat Holdings Pty Ltd [2020] WASCA 144 at [48]. 15 Written submissions of Ms Bergmann, p 4. 16 Berben v Hedditch [1982] ANZ ConvR 535 at 536–537 per Moffitt P. -- 5 of 7 -- 6 introduction had nothing to do with the sale and was not an effective cause of it.17 [42] Citing earlier High Court authority, it has been said recently by the Western Australian Court of Appeal: It is not enough that the engagement of the agent to find or introduce a purchaser was itself ‘a step without the taking of which the sale would not have been effected’ or merely to establish that ‘the transaction probably would not have been entered into but for the original introduction by the agent’. Rather, the agent’s efforts must have ‘continued to influence’ the purchaser in the decision to buy or have ‘flowed through’ to the purchaser so as to cause the ultimate sale.18 [43] Ms Bergmann contends that she was instrumental in setting a price of $685,000 for the property in the Form 6 and its ultimate sale price some four years later is explained by the movement in the value of money. The Tribunal’s Findings [44] The Tribunal found ultimately: Essentially, [APC’s] position has been displaced by the activities of [Mr Till] and his wife and the activities of the lawyers for [Mr Till] and the initial contracting party, Australian Fresh Leaf Herbs Pty Ltd, and the subsequent contracting party, Australian Fresh Leaf Herbs [sic: Fresh Leaf Farms] Ltd.19 [45] That ultimate finding was based upon a series of earlier findings: (a) The negotiation for the ultimate contract of sale involved a different corporate entity as purchaser; (b) Although there was “a connection between” the corporation negotiating initially and that which negotiated and ultimately contracted as purchaser the latter corporation “had become a public company and had … a range of new shareholders”; (c) That change was “an essential feature of generating capital with which to complete the purchase”; (d) There was an “absence of influence by [Ms Bergmann] … that extended over a period of over two years”; (e) During that period APC “did not perform any of the usual functions of an agent in respect of a transaction of this type in terms of any kind of negotiations in respect of the purchase price of the property”; (f) Nor did it perform “any role in [negotiating] the conditions in the contract”; 17 Berben, above. 18 Moore v Luxury Boat Holdings Pty Ltd, above, at [47], citing Moneywood Pty Ltd v Salomon Nominees Pty Ltd (2001) 202 CLR 351 and Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117, at [39]. 19 Transcript of proceedings, 29 September 2021, p 1-19, 21 – 25. -- 6 of 7 -- 7 (g) There was no contact between Ms Bergmann and Mr Till “apart from updating inquiries”.20 Does the Proposed Appeal Have Merit? [46] In effect, the Tribunal found that that influence which flowed from Ms Bergmann’s efforts ceased when a private corporation without sufficient capital leased rather than purchased the property and that the subsequent hiatus between that event and the ultimate sale and purchase, informed by the matters the subject of the Tribunal’s earlier findings, severed the causal connection. [47] Those conclusions were open on the evidence before the Tribunal. [48] The finding that the chain of causation was broken was in accordance with principle. [49] There is no fairly arguable case of error. The application for leave to appeal should be dismissed. Order [50] The application for leave to appeal is dismissed. 20 Transcript of proceedings, 29 September 2021, p 1-19, 13 – 20. -- 7 of 7 --