FAI General Insurance Co Ltd v FPD Qld Pty Ltd [1999] QSC 418

• • 3'1 "1 "+- C( '( . V. /1 y. 4~ JUSTICE State Reporting Bureal1 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 de JERSEY CJ No S9271/99 FAI GENERAL INSURANCE COMPANY LIMITED (ACN 000 327 855) and FPD (QUEENSLAND) PTY LTD (ACN 050 417 608) BRISBANE .. DATE 01/11/99 JUDGMENT 1 :','!is:'::~'E5;~~~'~~=~ ;':"SUE:D 1\ E;t3.ts F{ep:,):~lnQ t)UJ82U .'2'~'~~.'-!_,~~~L.1.. f I Applicant Respondent ,Itla FIoII!', The L:lw C/)t1rt.~. George Sind. Brish:IIlC, Q. 40()O Telcpholle: (07) J2.t7 .tJ(iO F:lx: (07) J.?.t7 55.l.? -- 1 of 4 -- '''--- / 011199 T5/MLM22 M/T 6426/99 (de Jersey CJ) HIS HONOUR: The statutory demand seeks $25,000 as a debt. The debt is not the subject of a judgment. There is an issue about the characterisation of any sum due. One might be excused for thinking that the most reliable evidence of that would be the invoice dated 7 May 1999 which describes 10 the amount of $25,000 claimed as "agreed commission for above sale." The sale referred to above relating to the Rolling Surf Resort. Yet the applicant contends that the respondent agent did not 20 bring about that sale and the respondent, for its part, rather capitalises on that, pointing to evidence of an agreement that it should be paid that amount as compensation for "over two years work in trying to secure FAIs exit from this joint venture," see the letter of 27 November 1998, 30 part of Exhibit AR1.6, to the affidavit of R V Rubenstein filed 14 October 1999. While at the same time avoiding the application of section 76 of the Auctioneers and Agents Act and regulation 55 of 40 the Auctioneers and Agents Regulation upon which the applicant relies. 50 HIS HONOUR: A dispute has arisen in the course of these reasons. I need not, in fact, go into that, because of another ruling I would make in the case and that is that 60 2 JUDGMENT -- 2 of 4 -- 011199 T5/MLM22 M/T 6426/99 (de Jersey CJ) regulation 55 of the Auctioneers and Agents Regulation applies. And the true characterisation of the claim is for what is ordinarily termed commission. As to that characterisation I '0 10 have referred already to the invoice. I would mention again the letter of 30 April 1999, notwithstanding Mr Bowden's quarrel about that. I would mention the letter of 27 November 1998 also, albeit at an earlier stage. 20 That being so the requirement of regulation 55 cuts in and there needed to be, at the time of the engagement or appointment of the agent a written agreement providing the amount to be paid and there plainly was not. That being so I consider there is a substantial and bona fide dispute as 30 to whether this amount of $25,000 claimed by the statutory demand is lawfully due. I will add confirming a ruling I made earlier in the case that the affidavit by the solicitor in support of the demand 40 would not appear to me to meet the requirements of Rule 52, in that it is not sworn by a person having knowledge of the facts. I interpret that requirement to mean personal knowledge, not knowledge again by an outsider from a perusal of the company's records. That would not, however, have 50 any particular significance as to the disposition of this application today. 60 3 JUDGMENT -- 3 of 4 -- 011199 T5/MLM22 M/T 6426/99 (de Jersey CJ) I set aside the statutory demand. Costs will be reserved on I the basis that they can fall for determination in any further proceeding commenced by the respondent. 10 20 30 40 50 60 4 JUDGMENT -- 4 of 4 --