Bonnett v WJR Investments Pty Ltd t/as Ray White Ipswich [2014] QCATA 164

CITATION: Bonnett v WJR Investments Pty Ltd t/as Ray White Ipswich [2014] QCATA 164 PARTIES: Paul Bonnett (Applicant/Appellant) v WJR Investments Pty Ltd t/as Ray White Ipswich (Respondent) APPLICATION NUMBER: APL123-14 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Stilgoe, OAM DELIVERED ON: 2 July 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave to appeal granted. 2. Appeal allowed. 3. The decision of 17 December 2013 is set aside. 4. The application filed 17 October 2013 is dismissed. CATCHWORDS: APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where exclusive agency – where sale outside exclusive agency period – where sale to person known to vendor – where tribunal found agent was effective cause of sale – whether grounds for leave to appeal Property Agents and Motor Dealers Act 2000 (Qld) s 19 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] On 27 February 2013, Mr Bonnett appointed WJR Investments Pty Ltd t/as Ray White Ipswich as agent for the sale of his property at Marburg. The appointment was a sole agency for 60 days. [2] Ray White took the property to auction on 22 March 2013 but it did not sell. Ray White continued to market the property. On 11 April 2013, it presented a contract for $540,000, with a 14 day settlement and finance pre-approved. It later presented a contract for $547,500, subject to finance. Mr Bonnett rejected both of those offers. [3] On 17 May 2013, Mr Bonnett entered into a contract of sale directly with Mr Manteufel for $535,000. Mr Manteufel was a registered bidder at the auction in March. Ray White claimed commission from Mr Bonnett on the grounds that it was the effective cause of the sale to Mr Manteufel. The tribunal agreed and ordered Mr Bonnett pay Ray White $15,642. [4] Mr Bonnett wants to appeal that decision on the basis that the learned Adjudicator erred in finding Ray White was the effective cause of the sale. Mr Bonnett also asserts that the appointment to act, Form 22a, is invalid because Ray White exercised undue influence by providing Mr Bonnett with alcohol on the day he signed the appointment. Further Mr Bonnett asserts that he was denied natural justice because the learned Adjudicator was threatening in his demeanour towards Mr Bonnett and Mr Manteufel but not in his demeanour towards Ray White’s representative, Mr Ramsay. [5] Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary. The principles the appeals tribunal applies when considering an application for leave to appeal are as summarised by Keane JA (as His Honour then was) in Pickering v McArthur1: There are numerous authorities, in varying language but with unvarying emphasis, that leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error. [6] The learned Adjudicator referred to s 16(1)(b) of the Property Agents and Motor Dealers Act 2000 (Qld) (“PAMDA”). I accept Mr Bonnett’s submission that there is no s 16(1)(b). It may be that the learned Adjudicator intended to refer to s 16(2)(b). [7] But s 16 is only relevant if the appointment was an open listing. Ray White was appointed an exclusive agent. Therefore, s 19 of PAMDA applies. Section 19(2) states that under an exclusive agency, the agent is entitled to commission on the sale of a particular property and in accordance with the terms of an agreement with the seller of the property, whether or not the selling agent is the effective cause of sale. I interpret 1 [2005] QCA 294 at [3]. -- 2 of 4 -- 3 that section that the agent will receive commission, whether or not he is the effective cause of sale, unless that right is modified by the agreement. [8] Ray White’s right to commission was the subject of agreement. A close reading of clause 2 of the appointment to act reveals that Mr Bonnett had an obligation to pay commission if a Relevant Person was an effective cause of the sale within the Term. “Relevant Person” is defined in clause 2.2 to include, in the case of an exclusive agency, the Client; that is, Mr Bonnett himself. “Term” is defined as the term of the appointment. [9] The question for the learned Adjudicator was not whether Ray White was the effective cause of the sale. The question posed by clause 2.1 of the appointment is whether either Ray White or Mr Bonnett was the effective cause of the sale during the period of the agency. Because the learned Adjudicator did not consider that question, leave to appeal should be granted. [10] Mr Bonnett told the learned Adjudicator that Mr Manteufel worked on the property after the appointment was signed but before the auction but he did not know Mr Manteufel was interested in buying the property.2 Mr Bonnett admits he saw Mr Manteufel after the auction3 but he denies any conversation about the sale of the property until ‘a good month or so’4 after the auction. [11] Mr Manteufel’s evidence is similar. He agreed he attended the auction but he did not bid5. He told the learned Adjudicator he found out in May that that property did not sell6. He told the tribunal that, in May, his work had picked up and he was able to make an offer to Mr Bonnett7. [12] Mr Ramsey argued that Mr Bonnett and Mr Manteufel made a deal during the period of the appointment. He gave evidence that he had conversations with both Mr Bonnett and Mr Manteufel that supported that view, but those conversations were denied. The only evidence to support Mr Ramsey’s contention is circumstantial; that Mr Bonnett refused to accept offers that were presented to him within the exclusive agency period. However suspicious the learned Adjudicator might have been, the evidence does not support a finding that Mr Bonnett was the effective cause of the sale during the exclusive agency period. Mr Bonnett and Mr Manteufel both say that they did not start negotiating until after the exclusive agency period. Mr Ramsay bore the onus of proof. The evidence before the learned Adjudicator could not satisfy that onus. [13] The appeal should be allowed. For the sake of completeness, I will make some comment about Mr Bonnett’s other grounds for leave to appeal. 2 Transcript page 1-15, line 40. 3 Transcript page 1-16, line 5. 4 Transcript page 1-16, line 8. 5 Transcript page 1-26, lines 1 – 2. 6 Transcript page 1-26, lines 34 – 35. 7 Transcript page 1-27, lines 12 – 15. -- 3 of 4 -- 4 [14] The evidence of alleged undue influence is limited to Mr Ramsey’s admission that he took a six pack of Gold8 to Mr Bonnett’s house when the appointment to act was signed. The learned Adjudicator did not agree that the conduct was unprofessional. He simply recorded Mr Stoller’s submission to the effect9. The learned Adjudicator stated, ‘...there has been no suggestion that Mr Bonnett was without possession of his faculties at the time he entered into that contract’10 and decided not to say any more about that issue11. The evidence does not support a finding that Mr Ramsey exerted any undue influence over Mr Bonnett and the learned Adjudicator was right to discount it as a relevant issue. [15] Mr Bonnett does not particularise his allegation that the learned Adjudicator was threatening in his demeanour. The learned Adjudicator did warn Mr Bonnett’s lawyer, Mr Stoller, that there were substantial penalties for giving incorrect information to the tribunal12. The learned Adjudicator also stated that he thought Mr Bonnett had evaded an obligation to pay commission and Mr Stoller would have to convince him otherwise13. That might result in procedural unfairness but for three important factors. Firstly, Mr Bonnett was legally represented. Mr Stoller was in a position to, and did, remove any sting from the learned Adjudicator’s words. Secondly, the learned Adjudicator issued a similar warning to Mr Ramsey, although in less strident terms14. The third reason is that Mr Stoller conducted a rigorous cross examination of Mr Ramsay, to which neither Mr Bonnett nor Mr Manteufel was subjected. There is no basis for Mr Bonnett’s claim that he was not given procedural fairness. [16] The decision of 17 December 2013 is set aside. The application filed 17 October 2013 is dismissed. 8 Transcript page 1-38, lines 1 – 3. 9 Transcript page 1-47, lines 18 – 19. 10 Transcript page 1-47, lines 17 – 18. 11 Transcript page 1-47, lines 21 – 22. 12 Transcript page 1-12, lines 33 – 38. 13 Transcript page 1-13, lines 3 – 8. 14 Transcript page 1-35, lines 29 – 30. -- 4 of 4 --