Blenheim Lakes Pty Ltd v Reppals Pty Ltd [2001] QSC 316

0• · t z5 31 .. 01 ·3 I(, /'7' B (~ Queensland Governm.ent State Rep Orting Urea U ~ Departmentoffustlceano Att~y~ral Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MOYNIHAN J No 6743 of 2001 BLENHEIM LAKES PTY LTD ACN 089 022 748 and REPPALS PTY LTD ACN 085 515 028 BRISBANE .. DATE 20/08/2001 JUDGMENT :1oor, The Law Courts, George Stroot, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Date / / Applicant , Respondent Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 20082001 Tl/JAP22 M/T 1/2001 {Moynihan J) HIS HONOUR: This is an application pursuant to section 459G of the corporations law to set aside a statutory demand of 3 July 2001. The statutory demand is a claim for agent's commission in respect of the sale of real property. The applicant is the developer of a property which has been referred to as Lakeside Manors Development. This is an estate comprising house and land packages available for sale. The sale which is the subject of the claim for commission was by Jessie O'Brien and Alice Proud as vendors. There is in evidence a form of appointment pursuant to the Auctioneers and Agents Act 1971 dated 14 December 1999. That is, prior to the sale giving rise to the claim. That authority by the applicant purports to give the respondent sole authority to sell from the development and deals with commission entitlements. It, however, on its face is not applicable to the sale in issue here because the vendor was not the applicant but the two individuals whose names I mentioned earlier. There is also a later document, described as a selling and marketing agreement, entered into between the applicant and the respondent. The recitals to that document describe the applicant as the owner of property described in item 2 of a schedule. The unit sold by O'Brien and Proud I mentioned 2 JUDGMENT 'l 10 2 30 40 . 50 60 -- 2 of 5 -- 20082001 Tl/JAP22 M/T 1/2001 (Moynihan J) earlier is one of the properties referred to in the schedule. 1 Recital C is to the effect that the applicant has developed 10 or is in the course of carrying out the development the various parts of which it intends to sell. The terms of the appointment are contained in clause 1 of the agreement. By it the applicant appoints the respondent as the sole selling agent and marketing consultant for the project. The terms of the appointment go on to provide that it is for the purpose of selling those parts of the project developed or to be developed. It seems to me that it is at least fairly arguable that the selling and marketing agreement is referring to property which is being sold by the applicant as distinct from being sold by somebody else. It remains to say that the terms of the contract of sale by O'Brien and Proud contains a clause appointing the respondent as the vendor's agent. The considerations being those to which I have adverted there seems to me a genuine basis for arguing that the arrangements relied on by the respondent as giving rise to the entitlement for commission do not achieve that outcome. 3 JUDGMENT 20 30 40 . 50 60 -- 3 of 5 -- 20082001 Tl/JAP22 M/T 1/2001 (Moynihan J) There is also raised an issue as to the authority of the signatory to the selling and marketing agreement to bind the applicant. On the view I take of the matter that does not arise for consideration for the reasons I have already canvassed. Were it the sole issue I would have difficulty persuading myself that there is, on the material, a genuine dispute in respect of that matter. There is also a dispute potentially arising as to the rate of commission applicable in the event that the terms and conditions of the agreement have not been complied with. Again, on the view that I take of the matter, that is not a consideration which directly arises. In part its resolution depends on whether the property in question comes within the terms of the relevant regulation made under the Property Act and as to that it is clear that the property is zoned residential and it is arguable that there is, in effect, a single unit. But, in the end, it seems to me that the matter is disposed of on the basis that O'Brien and Proud and not the applicant owned and sold the property and the former appointed the respondent as their agents for the sale. It therefore seems to me that there is a genuine basis for dispute that the liability for the debt which the notice 4 JUDGMENT 1 10 2 30 40 - 50 60 -- 4 of 5 -- 20082001 Tl/JAP22 M/T 1/2001 (Moynihan J) seeks to enforce is not a liability on the part of the applicant and the notice of statutory demand dated 3 July 2001 ought to be set aside. HIS HONOUR: I order the respondent pay the applicant's costs of and incidental to the application to set aside to be assessed on the standard basis. 5 JUDGMENT 1 10 20 30 40 - 50 60 -- 5 of 5 --