CBP Centre Pty Ltd v Smith [2011] QCATA 27

CITATION: CBP Centre Pty Ltd v Smith [2011] QCATA 27 PARTIES: CBP Centre Pty Ltd (Applicant/appellant) v Colin Graham Smith (Respondent) APPLICATION NUMBER: APL140-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President DELIVERED ON: 8 February 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal dismissed. CATCHWORDS : PROCEDURE- APPEALS – APPEAL IN MINOR CIVIL DISPUTE – Queensland Civil and Administrative Tribunal Act 2009 – section 142(3)(a)(i) – where application for leave to appeal on the basis of error of law – where legal provisions relied upon are not applicable Queensland Civil and Administrative Tribunal Act 2009, ss 32, 142(3)(a) Property Agents and Motor Dealers Act 2000, ss 133, 138, 140 Cachia v Grech [2009] NSWCA 232, cited Fox v Percy (2003) 197 ALR 201, cited Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, applied McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, cited QUYD Pty Ltd Marvass Pty Ltd [2009] 1 Qd R 41, cited APPEARANCES and REPRESENTATION (if any): This proceeding was heard on the papers, pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 4 -- 2 REASONS FOR DECISION [1] A learned Magistrate made an order that CBP Centre Pty Ltd (the applicant) pay the respondent the sum of $13,277.26 together with filing fees of $250. The amount ordered was for commission for sales, essentially for houses built on land that Mr Smith (the respondent) had sold while he was engaged by the applicant. The applicant seeks leave to appeal the decision. [2] A single ground of the appeal is advanced by the applicant. Effectively, it is argued that the decision is wrong in law as the actions of the respondent in claiming the commission are contrary to sections 138 and 140 of the Property Agents and Motor Dealers Act 2000 (PAMDA) and constitute an offence. [3] The Appeal Tribunal directed that both parties file and serve written submissions and that the application for leave to appeal, and, if leave is granted, the appeal, then be determined on the papers. Both parties have now provided their written submissions. [4] Leave is required to appeal the decision under section 142(3)(a)(i) of the QCAT Act because the original decision involves a minor civil dispute. [5] Leave to appeal will ordinarily be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage; 1 there is a reasonably arguable case that the primary decision-maker made an error 2 and there are reasonable prospects that the applicant would be granted orders in its favour; 3 or to correct a substantial injustice to the applicant caused by error. 4 The Magistrate’s Decision [6] The learned Magistrate gave brief oral reasons for the decision. He accepted that there was an oral agreement between the parties entitling the respondent to the payment of commission for the sales for the three houses built. [7] The evidence reveals that the applicant was at the relevant time a licensed real estate agent and also had arrangements with a builder to construct houses in circumstances when vacant land was sold and introductions were made to the builder for construction of houses on the vacant land. The respondent was engaged under the oral agreement by the applicant as a salesperson/contractor at the relevant time and made sales of vacant land as well as introductions to the builder for construction of the houses on the vacant land. 1 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232, [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. -- 2 of 4 -- 3 Submissions of the Parties [8] The applicant makes various submissions which do not relate to his sole ground for appeal. In reply, the respondent has also made submissions which do not relate to the ground on which the appeal was filed. The submissions which do not relate to the ground of appeal are irrelevant and are therefore not considered. [9] The applicant relies upon section 140 of PAMDA. Section 140(1) provides that a person is not entitled to sue for, or recover a reward for performing duties as a real estate agent unless, at the time the activity was performed, the person had, among other things, been properly appointed under division 2 of PAMDA by the person to be charged with the reward or expense. Section 140(2) provides that a person who sues for, or recovers or retains, a reward or expense for the performance of an activity as a real estate agent other than in compliance with subsection (1) commits an offence. [10] Further, the applicant submits that the duty of disclosure of a real estate agent to any prospective buyer is relevant. Section 138 of PAMDA provides that a real estate agent for the sale of residential property must disclose to any prospective buyer of the property any relationship, and the nature of the relationship (whether personal or commercial), the agent has with anyone to whom the agent refers the buyer for professional services associated with the sale; whether the agent derives a benefit from the person to whom he has referred the buyer and the amount of the benefit; and the amount of any benefit any person is expected to receive in connection with the sale. Again, it is an offence not to comply. [11] The respondent submits that the provisions relied upon by the applicant are for consumer protection and do not apply to his claim for the commission sought. His claim is for remuneration under an agreement between himself and the applicant. [12] In relation to section 140 of PAMDA, he submits that it must be read with section 133 of PAMDA relating to appointments of real estate agents by clients to perform services for them. However, he submits that the applicant was not his client at any time within the meaning of the section. Essentially, he argues that the applicant engaged him for selling land and making introductions to the builder for the construction of houses on its behalf. [13] Further, he submits that the disclosures to be made under section 138 are not relevant to the claim made against the applicant, but were in any event provided by the respondent to the buyers. Discussion and Decision [14] The submissions of the applicant do not directly advance arguments in support of the application for leave to appeal. However, the ground of appeal alleges an error of law. If established, such an error could support the granting of leave. -- 3 of 4 -- 4 [15] The applicant’s sole ground for appeal is that the decision is wrong in law as the actions of the respondent are an offence under PAMDA. These grounds are based upon an alleged non-compliance with sections 140 and 138 of PAMDA. [16] As the respondent submits, a primary object of PAMDA is consumer protection. 5 Section 138 provides for disclosures to be made to clients by real estate agents. Section 140 relates to recovery of commission as between real estate agents and their clients. Chapter 5 of PAMDA, which contains sections 138 and 140, makes provision among other things for the authorisation and responsibilities of real estate agents; the carrying on of business of real estate agents; appointment of real estate agents by clients; disclosures by real estate agents to clients; and recovery of rewards and expenses by real estate agents from clients who engaged them. [17] The provisions relied upon by the applicant do not regulate the payment of commission or remuneration by a company, which is in the business of introducing clients to a building company for reward, to persons the company has engaged as salespersons to effect introductions. [18] Therefore, sections 138 and 140 are not relevant to the dispute between the parties. Accordingly, in my view, the applicant’s arguments are misconceived. In the circumstances, I do not consider that there is a reasonably arguable case that the learned Magistrate made an error as alleged in the grounds of appeal. [19] Accordingly, the applicant does not have reasonable prospects of orders being made in its favour. In the circumstances, I similarly do not consider that a substantial injustice has been caused to the applicant which must be corrected. [20] Finally, this is a matter involving a dispute between two private parties regarding the remuneration payable in specific circumstances and for limited purposes. There is no question of general importance arising for consideration upon which further argument and a decision would be to the public advantage. [21] The application for leave to appeal should be dismissed. 5 PAMDA s 10. -- 4 of 4 --