Jenkins v Kedcorp Pty Ltd[1998] QCA 352

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8951 of 1998

Brisbane

[Jenkins v. Kedcorp P/L]

BETWEEN:

PETER DAVID JENKINS

(Respondent) Applicant

AND:

KEDCORP PTY LTD

ACN 010 891 004

(Appellant) Respondent

McMurdo P.

Pincus J.A.

Muir J.

Judgment delivered 6 November 1998

Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL GRANTED.  APPLICATION FOR EXTENSION OF TIME FOR FILING NOTICE OF APPEAL GRANTED UNTIL FOUR (4) DAYS AFTER DELIVERY OF THIS JUDGMENT.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 8951 of 1998

Brisbane

[Jenkins v. Kedcorp P/L]

BETWEEN:

PETER DAVID JENKINS

(Respondent) Applicant

AND:

KEDCORP PTY LTD

ACN 010 891 004

(Appellant) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 6 November 1998

1. This is an application for leave to appeal against a judgment of the District Court.  That Court allowed an appeal from a conviction entered in the Magistrates Court and the applicant argues that the District Court’s decision was legally erroneous.  The case is said to involve a problem relating to the principle that one charge may not allege more than one offence;  however, the more important legal problem which is raised concerns the proper interpretation of provisions of the Auctioneers and Agents Act 1971 ("the Act").  The respondent Kedcorp Pty Ltd was prosecuted in the Magistrates Court and found guilty on a complaint that it acted as a real estate agent when it was not the holder of a licence appropriately endorsed under s. 24(4)(b) of the Act.  Particulars of the charge were given and were in substance that between certain specified dates the respondent as agent for others in expectation of fee, gain or reward, carried on the business of buying and selling houses, land or estates and negotiating for the buying of houses, land or estates;  the particulars identified six properties to which the charge related.

2. At first sight the reference in the particulars to "carrying on business" is puzzling, for neither the wording of the complaint nor that of the provision under which it was brought, s. 19(2)(a) of the Act, mentions carrying on business.

3. The reason for the reference to "carrying on business" in the particulars is as follows.  Section 19(2)(a) provides -

"A corporation shall not -

1. act as or advertise, notify or state that it acts as, or is willing to act as, an auctioneer, a real estate agent, a commercial agent or a motor dealer . . .

unless it is the holder of a licence (a "corporation licence") appropriately endorsed under section 24(4)(b)".

The expression "real estate agent" is defined in s. 2 of the Act, rather elaborately;  We set out only the more relevant parts of the definition:

" ‘real estate agent’ means any person who, as an agent for others, and whether on commission or for or in expectation of any fee, gain, or reward . . .  and either generally or in respect of any 1 transaction, exercises or carries on . . . the business of buying, selling, exchanging, or letting houses, land, or estates, or negotiating for such buying, selling, exchanging, or letting . . .".

It seems evident that the wording of this definition inspired the language used in the particulars supplied by the prosecution.  Its case was that the respondent acted as a real estate agent by carrying on business as a real estate agent;  no doubt the appellant thought the case should be put forward in that way because of the definition, the relevant part of which we have quoted.

4. In the District Court the learned judge held that the complaint was bad for duplicity.  His Honour mentioned that although six properties were listed in the particulars the prosecution elected to proceed in relation to four only of them.  Then reference was made to s. 19(2)(b) of the Act which reads as follows:

"A corporation shall not -

. . .

(b)carry on or advertise, notify or state that it carries on, or is willing to carry on, a relevant business;

unless it is the holder of a licence (a ‘corporation licence’) appropriately endorsed under s. 24(4)(b)".

The learned District Court judge held in effect that whereas an allegation that the respondent carried on business could be made under para. (b) of s. 19(2), only one instance of acting as a real estate agent could be charged under para. (a).

5. Regrettably, it does not appear that his Honour’s attention was drawn to the oddity that the definition of "real estate agent" when read with s. 19(2)(a), on the face of it, in part covers similar ground to that which is dealt with by the other paragraph of the subsection, para. (b).  So that, applying the definition, the particulars were correctly framed;  if the definition of "real estate agent" is applied, it is clear that the particulars were correct insofar as they relied on more than one transaction and also insofar as they allege the carrying on of a business.

6. As a criminal charge is in issue, one would not strain to give the relevant provisions a construction which treats as an offence an action which is not, on the face of the statute, made one.  In our view the issue raised is of sufficient importance to warrant the granting of  leave.  If the definition of "real estate agent" is applied to s. 19(2)(a), it is not an offence for a corporation to act as agent in a real estate transaction unless in doing so it carries on a business.  The same would apply, as it appears to us, to the construction of s. 18(4)(a) of the Act which provides that -

"Subject to this Act, no person (either alone or as a member of a partnership)-

(a)shall act as a real estate agent unless the person is the holder of a real estate agent’s licence . . .".

7. Two further matters require discussion.  It was held in Lewis (C.A. No. 204 of 1998, 28 August 1998) that:

"There is no time limit prescribed in either s. 118 of the District Court Act or r. 334 of the District Court Rules for filing an application for leave to appeal, but were such an application to be made outside the prescribed time for commencement of an appeal, at the end of the day good reason would need to be shown for the Court to exercise its discretion to permit the relevant notice of appeal to be filed out of time".

Here, the situation discussed in the quotation from Lewis exists, for the application for leave was filed a few days after the expiration of the time limited for appeal.  Nevertheless, in our view, the time should be extended;  the mistake which was made on the part of those responsible for instituting the proceedings in this Court does not seem to appear to us to have made any practical difference and there is a genuine question of construction of a rather important statute raised.

8. The second matter is that Mr Collins who appeared for the respondent gave, as a reason for opposing our treating the application for leave to appeal as a hearing of the appeal, that there is another issue, which is partially factual, to be determined;  that appears to be correct.  Accordingly, it is necessary to do no more at this stage than to grant leave to appeal, and to extend the time for filing the notice of appeal until four days after the delivery of this judgment. We so order.