EIT Pty Ltd t/a PRWR v AMR[2016] QCAT 449

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

The Claim

1. [1]
   This is a claim by EIT Pty Ltd trading as PRWR against AMR for $10,880 being the cost of advertising incurred by the applicant in connection with the proposed sale of the respondent’s property at Pittsworth.

2. [2]
   AMR engaged the applicant to sell her rural property by auction on 11 December 2015 and if the auction is unsuccessful, by private treaty.

3. [3]
   The witnesses in this matter were DCM, a Principal of EIT Pty Ltd and the respondent, AMR.

Relevant Documents

4. [4]
   The documents to which I have had regard in this matter are as follows:

Exhibit 1-  Form 6 Appointment of Agent signed by DCM and AMR.  It is dated 3/11/15 by DCM but undated by AMR.

Exhibit 2-  Letter from PRWRto AMR dated 4 November 2015 containing property appraisal;

Exhibit 3- Property Marketing Schedule;

Exhibit 4 - Letter from Clewett Lawyers to PRWR dated 4 March 2016;

Exhibit 5 -  Proposed Contract of Sale between AMR and Y;

Exhibit 6 -  Property description provided by AMR to DCM;

Exhibit 7 -  Form 6 signed by AMR and dated 6 November 2015;

Exhibit 8 -  Application for Minor Civil Dispute dated 14 April 2016;

Exhibit 9 -  Response to Minor Civil Dispute dated 26 July 2016

Exhibit 10- AMR’s submission dated 7 November 2016;

Exhibit 11 - DCM’s submission dated 11 November 2016;

Exhibit 12 - AMR’s tax returns from 2012 to 2015;

Exhibit 13 - Letter from DCM to the Clerk of the Court Toowoomba, dated 3 November 2016 and attachments;

Exhibit 14- Letter of instructions re: Reserved price from AMR to the auctioneer dated 10 December 2015;

Exhibit 15 - Form of Notice of Appointment effective from 1 October 2015;

The Agreement

5. [5]
   At the outset I understood it was agreed between the parties that the quantum of the applicants claim was $10,880. After further discussion during the hearing on 11 November 2016 DCM agreed to reduce the claim to $10,685.

6. [6]
   The Appointment of a Property Agent is but one of the documents comprising the “agreement” or engagement between the applicant and the respondent referred to above. The agreement between the parties comprises the following parts:-

1. (i)
   Appointment of Property Agent;

2. (ii)
   Schedule;

3. (iii)
   Essential Terms and Conditions;

4. (iv)
   Any other Annexures.

See section 2 of the “ESSENTIAL TERMS AND CONDITIONS”

7. [7]
   The Appointment of Property Agent comprises 4 pages. The last line on page 4/4 is in these terms; “This is the end of the approved form. Please note, any annexures/schedules form part of the appointment contract”. Attached to the Appointment of Agent is a document entitled:

“Appointment of Real Estate Agent

(Residential Sales)

ITEMS SCHEDULE”  -  It comprises 7 pages.

Pages 6 and 7 of the “ITEMS SCHEDULE” comprises the “Essential Terms and Conditions” referred to above.  Page 5 of 7 has been signed by both parties and dated by DCM “3/11/15”.

8. [8]
   AMR’s principal complaint is that the Form of Appointment, Form 6, was incomplete and that her contract with the applicant is invalid

9. [9]
   The Form 6 Appointment of Property Agent used in the present matter was the one that was effective from 1 December 2014. It is Exhibit 1. As from 1 October 2015 a new Form of Appointment became effective. That is Exhibit 15. At the outset of the hearing on 11 November 2015 I informed the parties that I had sourced a version of the Form 6 effective from 1 October 2015 and provided to them a copy thereof for their consideration and comment.

Relevant Statutory Provisions

10. [10]
    The appointment of a property agent and the terms on which the agent is appointed are the subject of various provisions of the Property Occupations Act 2014 “the POA” which are set out below. As noted, some of those provisions are mandatory in nature. The relevant statutory provisions are as follows:

1. Section 21;

21 Meaning of residential property

Residential property is real property that is used, or is intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or primary production.

2. Section 89;

89 Restriction on recovery of reward or expense—no proper authorisation etc.

1. (1)
   A person is not entitled to sue for, recover or keep a reward or expense for the performance of an activity as a property agent or resident letting agent unless, at the time the activity was performed, the person—

1. (a)
   either—

1. (i)
   if the person performed an activity as a property agent—held a property agent licence; or

2. (ii)
   if the person performed an activity as a resident letting agent—held a resident letting agent licence; and

2. (b)
   was authorised under the person’s licence to perform the activity; and

3. (c)
   was properly appointed under part 4 by the person to be charged with the reward or expense.

2. (2)
   A person who sues for, recovers or keeps a reward or expense for the performance of an activity as a property agent or resident letting agent other than as provided by subsection (1) commits an offence.

3. Section 102(1) (a) (b), and (2) (a) (b);

102 Appointment

1. (1)
   A property agent must not act as a property agent for a person (a client) to perform an activity (a service) for the client unless—

1. (a)
   the client first appoints the property agent under subsection (2); or

2. (b)
   an appointment that is in force is assigned to the property agent under the terms of that appointment or under section 113.

2. (2)
   The appointment of a property agent must—

1. (a)
   comply with division 2 and section 109(1); and

2. (b)
   include any other information prescribed under a regulation, in the way (if any) prescribed under a regulation.

Example of a way for paragraph (b)—

• as an addition to the approved form under section 104
• the expression of commission for a service in a dollar amount, or as a percentage, or both

4. Section 103;

103 Particular requirements for appointing property agent for sole or exclusive agency

1. (1)
   This section applies to an appointment of a property agent for a sole or exclusive agency.

2. (2)
   Before the appointment is signed, the property agent must—

1. (a)
   give the client a notice, in the approved form, that provides information about sole and exclusive agency appointments; and

2. (b)
   discuss with the client—

1. (i)
   whether the appointment is to be for a sole agency or an exclusive agency; and

2. (ii)
   the proposed term of the appointment; and

3. (iii)
   for an appointment for the sale of residential property other than a commercial scale appointment, the client’s entitlement to negotiate the term of the appointment up to a maximum term of 90 days; and

4. (iv)
   the consequences for the client if the property is sold by someone other than the agent during the term of the appointment.

Note—

The commission of an offence against this subsection also renders an appointment for the sale of a place of residence or land or an interest in a place of residence or land ineffective under section 112(3).

5. Section 104;

104 General content of appointment

1. (1)
   An appointment of a property agent or resident letting agent must include the following in the approved form—

1. (a)
   a prominent statement that the client should seek independent legal advice before signing the appointment;

2. (b)
   a statement about whether it is a single appointment or a continuing appointment;

3. (c)
   for each service, provision for the inclusion of a statement about the following—

1. (i)
   the service to be performed by the property agent or resident letting agent;

2. (ii)
   the fees, charges and any commission payable for the service;

3. (iii)
   when the fees, charges and any commission for the service become payable;

4. (iv)
   the expenses, including advertising and marketing expenses, the agent is authorised to incur in connection with the performance of each service or category of service;

5. (v)
   the source and the estimated amount or value of any rebate, discount, commission or benefit that the agent may receive for any expenses that the agent may incur in connection with the performance of the service;

6. (vi)
   any condition, limitation or restriction on the performance of the service.

2. (2)
   In this section—

continuing appointment see section 102(5)(b).

single appointment see section 102(5)(a).

6. Section 105;

105 Other requirements—commission

1. (1)
   This section applies to an appointment of a property agent or resident letting agent for a service that is the sale or letting of property or the collecting of rents if commission is payable for the service and is expressed as a percentage of an estimated sale price or amount of rent to be paid or collected.
2. (2)
   The appointment must state, in writing, that the commission for the service is worked out only on—

1. (a)
   for the sale of property—the actual sale price; or

2. (b)
   for the letting of property—the actual rental for the property; or

3. (c)
   for the collecting of rents—the actual amount of rent collected.

7. Section 107;

107 Other requirements—auction

1. (1)
   This section applies to an appointment of a property agent that is in relation to an auction.

2. (2)
   The appointment must state, in writing, the day set for the auction.

8. Section 108;

108 Other requirements—sole or exclusive agency

1. (1)
   This section applies to an appointment of a real estate agent for a sole or exclusive agency.

2. (2)
   The appointment must state in writing—

1. (a)
   whether the appointment is for a sole or exclusive agency; and

2. (b)
   the day the appointment ends.

3. (3)
   The appointment may provide that at the end of the term of the sole or exclusive agency, it continues under the terms of an open listing that may be ended at any time by the client or agent

9. Section 109;

109 Giving signed appointment to client

1. (1)
   An appointment of a property agent or resident letting agent under section 102(1) or (3) must be signed and dated by—

1. (a)
   the client; and

2. (b)
   the property agent or resident letting agent or someone authorised or apparently authorised to sign for the property agent or resident letting agent.

2. (2)
   The property agent or resident letting agent must give a copy of the signed appointment to the client.

10. Section 112.

112 Other ineffective appointments and reappointments

1. (1)
   The appointment of a property agent for the sale of residential property under a sole or exclusive agency is ineffective from the time it is made if the term of the appointment is more than 90 days.

2. (2)
   Subsection (1) does not apply to a commercial scale appointment.

3. (3)
   The appointment of a property agent for a sole or exclusive agency for the sale of a place of residence or land or an interest in a place of residence or land is ineffective from the time it is made if the property agent commits an offence against section 103.

4. (4)
   The appointment of a property agent or resident letting agent is ineffective from the time it is made if the appointment does not comply with section 104.

5. (5)
   The reappointment of a property agent for a further term of sole or exclusive agency for the sale of residential property is ineffective from the time it is made if the property agent commits an offence against section 110(3) relating to the reappointment.

11. [11]
    Section 48A (1) and (2) of the Acts Interpretation Act 1954 “AIA” is also relevant and it is in these terms:

48A Compliance with forms

1. (1)
   If a form is prescribed or approved under an Act, strict compliance with the form is not necessary and substantial compliance is sufficient.

2. (2)
   If a form prescribed or approved under an Act requires—

1. (a)
   the form to be completed in a specified way; or

2. (b)
   specified information or documents to be included in, attached to or given with the form; or

3. (c)
   the form, or information or documents included in, attached to or given with the form, to be verified in a specified way; the form is not properly completed unless the requirement is complied with.

12. [12]
    I refer to section 102 of the POA. Subsection (1) prohibits a property agent from selling a client’s property without first having been properly appointed in accordance with sub section (2) which provides:-

1. (a)
   That the appointment of a property agent by a client must comply with division 2 (i.e. sections 104 to 108) and section 109(1); and

2. (b)
   include any other information prescribed under a regulation, in the way (if any) prescribed under a regulation…”

13. [13]
    The Property Occupations Regulation 2014 “the Regulation” was promulgated pursuant to the POA and came into force on 1 December 2014. I am unable to find any provision in the Regulation mandating that particular information be included in the Appointment of Property Agent. However I do note that Part A of the ITEMS SCHEDULE contains an acknowledgement by AMR that the applicant has complied with Regulation 21. Part G of the ITEMS SCHEDULE contains information mandated by section 103(2)(b) of the POA.

14. [14]
    Section 89 of the POA is particularly important in that it provides, inter alia, that an agent cannot sue to recover fees or charges unless the agent was properly appointed under part 4 by the client. Part 4 of the POA contains section s 102 to 114.

15. [15]
    Some of the information required to complete the Form 6 is mandated by some of the provisions within part 4 of the POA.

1. (i)
   Part 4 section 1– section 104(1)(c)(i) and section 107(2);

2. (ii)
   Part 4, section 2 – section 104(1)(b);

3. (iii)
   Part 6 – sections 103 and 108;

4. (iv)
   Part 7 – section 104(1)(c)(ii) and (iii)

5. (v)
   Part 8 section 1 – section 104(1)(c)(iv);

6. (vi)
   Section H of the Item Schedule – section 103.

16. [16]
    I also refer to section 112 sub sections (3) and (4) of the POA.

Residential or Rural Property?

17. [17]
    For reasons which I will explain below, I am satisfied that the duration of the appointment of the applicant was for a period of more than 90 days. Section 112(1) of the POA provides, in effect, that an appointment of a property agent of a residential property is ineffective if the term is for more than 90 days. There is no limitation on the term of an appointment for the sale of a non-residential property. It is therefore necessary to determine if the subject property was or was not a residential property within the meaning of the POA. AMR has maintained throughout the proceedings that the property was a residential property. DCM maintains that it was a rural property. I accept his evidence that he deals exclusively in rural properties and that residential sales are undertaken exclusively by Ms H who works in his business.

18. [18]
    I refer to section 21 of POA which defines the meaning of “residential property” to mean “real property that is used, or is intended to be used, for residential purposes but does not include real property that is used primarily for the purposes of industry, commerce or prime production.”

19. [19]
    I accept AMR evidence as follows:

1. (i)
   The area of the property is 500 acres.

2. (ii)
   Approximately one half to two thirds of the area is cleared.

3. (iii)
   She was running approximately 50 breeders and calves and up to 95 to 100 head of cattle on the property at the relevant time.

4. (iv)
   There had been no cultivation of the property for approximately 12 years.

5. (v)
   Income from the grazing activities which she conducted on the property and income from occasional odd jobs outside the property were her sole source of income.

6. (vi)
   Approximately 45 head of cattle were sold each year.

7. (vii)
   Exhibit 6 is a letter of instruction provided by AMR to DCM during discussions prior to the signing of the Form 6.  Apart from describing the residential complex, the property is described thus,

“WS.

Approx 210 ha, 520 acres (checked exact amount) with large unique stone home on four titles overlooking peaceful valley.

Land – Approx. half x-cultivation fully contoured with waterways running up to vine scrub, basalt grazing country?

• Subdivided into 12 paddocks plus laneways, cattle yards (wood and steel) with water trough and trap
• Creek flats and creek the length of property with springs and permanent waterhole
• Four bores, three cased. Main bore, 43 metres (2009) has electric grundfos pump and timer set to pump palatable water at approximately 2,700 litres per hour to 90,000 litre (20,000) tank on hill with separate stock and garden pipes out. Water at 8.5 metres cased with 198 mm pipe to 54 metres. Windmill near creek also pumps to tank on hill with a separate pipe and mostly keeps property supplied for stock and garden water except in high usage times. Water reticulated from tank to troughs and taps. Second bore has water at 6 metres, case with 198 mm pipe (2009) to 12 metres, 5,040 litres per hour not mounted. Third bore 13 metres deep (was used a secondary source of water until 2010 when windmill removed) and old dairy bore water at 44 metres.”

I accept AMR’s evidence that she conducted the administration component of her grazing business from her home on the property. 

20. [20]
    A summary of AMR’s tax returns for the years 2012 to 2015 is as follows:

1. (a)
   2012 Year.  AMR earned a gross salary of $22,654 as an administrative assistant for a firm of lawyers.  Her grazing income from grazing activities was $24,366.  Expenses were $35,332, resulting in a loss of $10,966.  The description of her main business or professional activity was “Beef Cattle Farming”.

2. (b)
   2013 Year.  Gross income as administrative assistant was $140.  She described her main business or professional activity as “Beef Cattle Farming”.  Gross income from grazing was $14,946.  Expenses were $29,075 leaving a loss of $14,129.

3. (c)
   2014 Year.  Gross income as administrative assistant with the Australian Electoral Commission was $1,125.  Drought relief in the amount of $3,832.  Her main business or professional activity was described as “Beef Cattle Farming”.  Gross income from grazing was $26,694.  Expenses amounted to $32,218 leaving a loss of $5,524.

4. (d)
   2015 Year.  Gross income from government allowances was $11,114.  Her main business or professional activity was described as “Beef Cattle Farming”.  Gross income from grazing was $57,560.  Expenses were $55,736.  Leaving a profit of $18,024.

21. [21]
    I refer to Exhibit 10, AMR’s written submission and to paragraphs 1 and 2 on page 9 thereof, in which she described the activities that she and her family conducted on the property.

“… It is a large home and outbuildings and had been our residence since 1995.  The home and outbuildings would cost more than the land to replace.  It is also our recreation and leisure with running (children) walks, riding horses and motorbikes, nature watching with Koalas, Kangaroos etc and swimming and rafting in the large waterhole.  My second daughter currently resides with me and works off farm.  Her partner often stays.  My son resides with us when home from UQ for approximately 20 weeks of the year plus various weekends if not working elsewhere.  My eldest daughter and partner often visit.  I have not had a holiday of more than a few days a year for at least 15 years and when I have, we have stayed with family.

On the other hand, apart from occasional odd jobs outside, it is my main source of income.  I am classified as a primary producer and have an ABN so I pay GST on cattle sales and claim GST on property purchases.  Due to drought, ill health and a commitment to three children when they were at school, I have a limited income running up to 50 breeding cows and replacement heifers per year and selling their calves.”

22. [22]
    The term “primary production business” is defined in section 995-1 of the Income Tax Assessment Act 1997 as “…(b) maintaining animals for the purpose of selling them or their bodily produce (including natural increase).”

23. [23]
    In Saville and Ors v Commissioner of Land Tax (NSW) 81 ATC 4373, Roden J said at page 31 of the CCH Report, “… I am of the view that for any use of land to justify the statement that the land is used primarily for that purpose, it is necessary not only that that use prevail over any competing use but also that it be sufficiently substantial to prevail over the proposition that the land is primarily to be regarded as unused land.”

24. [24]
    In light of the foregoing I am satisfied that the land in question could not be said to be primarily unused land. Secondly, although AMR’s family home is situated on the land and she used same and some of the land for family and recreational activities, bearing in mind that her sole source of income, apart from a few odd jobs and drought relief, came from grazing activities she conducted thereon, the nature of the improvements, the subdivision of the land into 12 paddocks, the extent to which the property was cleared and provision of the watering facilities, I am satisfied that the land was primarily used for grazing purposes. Accordingly I am satisfied that the land was not residential property as that term is defined in section 21 of the POA.

The Authorities

25. [25]
    I am grateful to AMR for referring me to the case of Yong Internationals Pty Ltd v Gibbs and Ors [2001] QCA 161 “Yong”. In that case the issue was whether a Form 22a, required to be completed under the Property Agents and Motor Dealers Act 2000 “PAMDA”, was compliant with the Act. The POA repealed PAMDA. See section 237 of the POA. Yong followed an earlier case of QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257 “QUYD” which is authority for the proposition that substantial compliance with Form 22a was sufficient. The present Form 6 appears to be in similar terms to the Form 22a. In Yong the agent had not completed section 4.1 of the Form 22a which was in these terms; “To the agent… state how you will perform the service AND any conditions, limitations or restrictions on the performance of the service. (eg Holding of open house, performing service as multi list or conjunction sale, when and how to be conducted.)” Section 4.1 was the forerunner to Part 4 Section 1 of the Form 6 used in the present matter.

26. [26]
    At paragraph 33 of Yong the court said, “… the required information is not included in clause 4.1 of the appointment, and the appointment was therefore ‘not properly completed’.”

27. [27]
    In QUYD the client did not contest that the Form 22a was not properly completed but submitted that it contained a phone number different from the phone number for the Department of Fair Trading in the approved form. The court found that there was substantial compliance with the form.

28. [28]
    In QUYD Fraser JA respectfully adopted the reasoning of de Jersey CJ in Bluestone Holdings Pty Ltd v Juniper Property Holdings No 14 Pty Ltd [2006] QSC 219. In the final paragraph of the Bluestone Holdings judgment, de Jersey CJ referred to a decision of Gibbs J, as he then was, in Equipment Investments Pty Ltd and MJ Dowthwaite and Co Pty Ltd [1969] 16 Federal Law Reports 23 where His Honour offered guidance as to when divergence from a form should be considered substantial. He said this;

‘A divergence from the form would be substantial or material if it caused the statement to convey less information than the form requires or to confuse or mislead the prospective hirer as to the matters which the form is designed to bring to his notice.  The dealer is not entitled to abandon the form completely and to claim the right to represent the information to the hirer in a quite different way but, in my opinion, he does not substantially or materially depart from the form simply by including additional words unless their presence in some way distorts or obscures or minimises the information which the form is designed to give.’

29. [29]
    I also refer to paragraphs 29 and 30 of the judgement of Fraser JA in QUYD where His Honour made reference to the “main object” of PAMDA as expressed in section 10(1) which is in identical terms to section 12(1)(a) of the POA.

30. [30]
    Section 12(1)(a) of the POA is in these terms:

12 Objects

1. (1)
   The objects of this Act are –

1. (a)
   to provide a system for licensing and regulating persons as property agents or resident letting agents and for registering and regulating persons as real estate salespersons that achieves an appropriate balance between –

1. (i)
   the need to regulate for the protection of consumers; and

2. (ii)
   the need to promote freedom of enterprise in the market place;

31. [31]
    At paragraph 30 His Honour said “the reference to maintaining an ‘appropriate balance’ suggested protection of consumers was not intended to be achieved at the cost of destroying a contractual appointment merely because of an inconsequential departure from the approved form of appointment….”

The History

32. [32]
    I am satisfied that on 3 November 2015, DCM attended on AMR’s property, which is situated approximately 8 to 10 kilometres outside of Pittsworth, to discuss his appointment to sell her property by auction. AMR informed DCM that she wanted a price in the order of two million dollars to sell the property. The meeting took approximately an hour and a half. Quite a significant part of that time was taken up in discussing the marketing of the sale. DCM prepared a handwritten schedule of marketing costs, totalling $10,880. This was discussed with AMR. He completed the Form 6 and signed it. It is unclear whether he left the Form 6 with AMR, or took it when he returned to his office. On 4 November 2015 DCM arranged for his staff to type up the schedule of marketing costs and these were forwarded to AMR but it is unclear whether she received them prior to the first advertisement appearing on 14 November 2015.  AMR acknowledges receiving the typewritten schedule.  On 4 November 2015 DCM also wrote to AMR providing an estimate of the value of the four parcels of land, the subject of the sale, and also provided details of six “Recent Comparison Sales” none of which exceeded one million dollars. 

33. [33]
    AMR attended on DCM’s office on 5 November 2015 and signed the Form 6 but did not date it. As AMR was leaving DCM’s office on 5 November she asked for and was given a copy of the signed Form 6. On 6 November 2015 DCM inserted the date, “6/11/15” underneath AMR’s signature.

34. [34]
    The auction held on 11 December 2015 was unsuccessful in selling the property. Subsequent attempts to sell the property were also unsuccessful.

35. [35]
    At a preliminary hearing in this matter on 27 October 2016 AMR asked DCM to produce a copy of the relevant licences. A copy of the Corporate and Auctioneer’s Licence for the applicant, current to 17 July 2016, was issued in July 2014. A copy of his personal licence issued on 22 May 1992 and current to 17 December 2017 is also produced. These documents are part of exhibit 13. In the light thereof I am satisfied that for the purposes of sections 14, 15 and 16 of the POA, the applicant was an auctioneer, a property agent and a real estate agent..

AMR’s Complaints

36. [36]
    Point 1. She complains that the licence details in the Form 6 are incorrect and inadequate. She claims there was no agency name given and the licensee is incorrect. Refer to paragraph 1 of her submission Exhibit 10.

37. [37]
    Part 2 of the Form 6 requires “Licensee details” to be inserted. The “Licensee” is described as “EIT”.  The correct name of the Licensee is “EIT Pty Ltd”.  It refers to licence number 3715592 with an expiry date of 17 July 2016 (which appears to be initialled by AMR).  Apart from the words “Pty Ltd” being omitted from the name, the information provided is correct.  The omission is inconsequential.  I am satisfied that there is substantial compliance.

38. [38]
    At Points 2 and 18, AMR complains that the property sold is not correctly identified. Part 3 of the Form 6 contains the real property description of the property, i.e. Lots 2308 and 2309 on Plan 341108 and Lots 1 and 2 on RP88926 in the Parish of Beauraba. AMR complains that this section did not contain the address of the property but did concede that she only owned one property which was the one that was being sold and the address thereof appears in part 1 of the Form 6 “Client Details” i.e. “W MS150 Pittsworth.

39. [39]
    The Items Schedule component of the Form of Appointment contains seven pages. Page 4 is headed “Property Description Details”. There are nine boxes to be completed describing the property type e.g. house, unit, apartment, or farm etc. None of these have been completed. DCM has written at the top of page 4 the following words, “Agent completes own details”. I am satisfied that AMR clearly understood that the property she was selling was her own grazing property, the only property she owned. In the circumstances I am satisfied that there was substantial compliance with the Form 6 in this regard.

40. [40]
    Her third complaint is that the term of appointment was incomplete. Refer to Part 4 Section 2 “Term of Appointment”. It contains two boxes. One box is to be ticked indicating whether the appointment is a “single appointment for a particular service or services” in which case the term of the appointment must be completed. The second box refers to a “continuing appointment for a service or a number of services over a period” in which case the start and end date must be completed. Neither box is ticked but under the “Single appointment” section there is inserted “Start 3.11.2015. End 10.3.2015”. Clearly the “end date of 10.3.2015” is incorrect. I am satisfied upon hearing from DCM that the end date should read “10.3.2016”. I am satisfied this is a clerical error. I accept his evidence that he explained to AMR on 3 November 2015 that he wanted a period of 90 days after the proposed auction date of 11 December 2015, to sell the property in the event that the auction was unsuccessful. The date, 10.3.16, is approximately 90 days after the auction date of 11 December 2015. I am satisfied that the section was substantially completed.

41. [41]
    AMR’s fourth complaint is that the length of the contract was not discussed and her fifth complaint is that the maximum length of the term of appointment, i.e. 90 days, and entitlement to negotiate up to 90 days was not discussed. AMR’s evidence on this issue was somewhat inconsistent. At one point she said she had no recollection of any discussions about the duration of the appointment being for more than 90 days but subsequently said there was no discussion on the point. For reasons previously explained in the preceding paragraph and set out below, I am satisfied that the term of the appointment was for more than 90 days and DCM explained to AMR the reasons therefor.

42. [42]
    At point 6 AMR also claims that the “single appointment or continuing appointment” section of the Form 6 was not completed. AMR also claims that DCM did not explain to her that her property was a rural property and not a residential property as she understood it to be. She swore that she was selling a residential and a grazing property and further alleges at page 10 of her submission, that it was only when she decided to defend the Applicant’s claim that it was pointed out to her that in fact the property was not a “residential property”. I reject AMR’s claim that DCM was other than honest with her in this regard.

43. [43]
    I accept DCM’s evidence that he deals exclusively in the sale of rural properties. He would not have attended upon her on 3 November 2015 had she been interested in selling a residential property. I am also satisfied for reasons previously given that this property was a rural property and not a residential property. I also accept DCM’s evidence that he was sure that they spoke of his need to have an appointment for 90 days after the date of the auction on 11 December 2015 to enable him to sell the property if in fact the auction was unsuccessful. (As previously note the 10th of March 2016 was approximately 90 days after the auction date of 11 December 2015). I accept his evidence that it was his normal practice to advise a prospective vendor to this effect although he cannot specifically remember advising AMR that the duration of the appointment would be for more than 90 days. I am satisfied that DCM told AMR that he wanted appointment for a period of 90 days after the proposed auction date. The “Single Appointment” box in Part 4, section 2, was not completed although the duration of the appointment below that box was completed, albeit not accurately as previously discussed. I am satisfied there was substantial compliance with the Form.

44. [44]
    In point 7 of AMR’s submission, she complains that part 4 section 3 of the Form 6 where a change was made from “list” to “reserve” was not initialled. This is no more than AMR being pedantic.

45. [45]
    At point 8 AMR complains that the price range for an electronic listing was not completed. In my view this is relevant only to the listing and sale of a residential property and therefore was not relevant to this matter.

46. [46]
    At points 9 and 17 AMR complains that DCM failed to adequately explain the difference between a “sole” and “exclusive” agency and therefore breached section 103(1), (2) (b) (i) and (iv) of the POA. She complains that DCM simply ticked the box “Exclusive” in part 6 of the Form 6 without explaining to her the difference to her. She claims that he did not tell her that if he got an exclusive agency from her and she sold the property to another buyer, outside the terms of the agency, that she would still be obliged to pay him commission. She further alleges that DCM did not tell her that if she sold to a person who had been nominated by her, she would have to pay DCM 1% commission as noted in Part 7 of the Form 6.

47. [47]
    I accept DCM’s evidence that at their meeting on 3 November 2015 AMR told him that she had another nominated buyer who was interested in purchasing the property and wanted to be able to sell to that purchaser outside the terms of the agency with his firm. He explained to her that he would not accept that arrangement. He explained to her that if his firm went through the marketing process and took the property to an auction, he wanted the commission on the sale of the property and an exclusive agency. I accept his evidence that he explained to her the difference between an exclusive agency and a sole agency. i.e. in a sole agency if the owner sells to another buyer who was not introduced by the agent, the agent is not entitled to commission. In an exclusive agency in such circumstances, the agent is entitled to commission. I accept DCM’s evidence that the parties compromised and agreed that if AMR did sell to her nominated buyer prior to the auction DCM would charge 1% commission plus GST and Part 7 of the Form 6 was completed accordingly. I am satisfied that this discussion took place prior to 3 November 2015 and prior to AMR signing the Form 6 on 5 November 2015.

The 2015 Form 6 does contain more advice on the matter of “sole and exclusive agency” than does the 2014 Form 6.  However in the light of the foregoing I am satisfied that DCM complied with section 103(2)(a) and (b) of the POA and in this regard I refer to part H of the items schedule, the relevant boxes of which have been ticked and the Form signed by AMR.  I accept DCM evidence that, for the purpose of section 103(2)(a) of the POA the only approved form of which he was aware was the Form 6.

I am satisfied as to substantial compliance in this regard.

48. [48]
    At point 10 AMR complains that the commission amount was not clearly stated as required in Part 7 of the Form 6. It is completed thus:

“The client and the agent agree that the commission including GST payable for the service to be performed by the agent is ‘2.25% plus GST Max. Commission $45,000 plus GST (if the nominated buyer purchases prior to auction seller agrees to pay 1% plus GST.  If sold at auction/ or after as per above 2.25% plus GST to max $45,000.’ “ 

The highlighted section was completed by DCM. 

The section was also completed to the effect that, “For sales, including auctions, if a contract is entered into”, commission is payable when “settlement of the contact occurs”,

49. [49]
    The words “of the sale price” do not appear after the words “2.25% plus GST”. I accept DCM’s evidence that the maximum commission of $45,000 was calculated on the sale price of $2million which is the price which AMR was hoping to achieve. AMR conceded that she knew and understood that commission would be calculated on the sale price, but ‘as it is not written in the contract’ she claims that the contract is void for lack of certainty. In her sworn evidence she said that the fact that she understood that the commission would be calculated on the sale price was irrelevant because it was not stated in the Form of Appointment. In my view AMR’s claims in this regard are simply disingenuous. While the words “on the sale price” are not written into the agreement, AMR clearly understood the meaning of the words “2.25% plus GST”. I am satisfied that she knew that commission would be payable on the sale price and on settlement of the sale. She was not confused and nor was she misled. I am satisfied that there is substantial compliance in this regards.

50. [50]
    At point 11 AMR complains that the advertising amount is not clear, change is not initialled and the annexure is not attached as required by the form.

51. [51]
    I accept DCM’s evidence that at the meeting on 3 November 2015 he and AMR had a detailed discussion about marketing i.e. the type and size of newspaper advertisements and that he prepared a handwritten schedule of the marketing costs totalling $10,880. This handwritten schedule was prepared in the presence of AMR and discussed with her. I accept his evidence that on returning to his office his staff typed up a schedule of marketing costs, exhibit 3, and that same was forwarded to AMR on 4 November 2015. I accept AMR’s evidence that she did receive exhibit 3 but cannot recall whether it was before the date when the first advertisement was placed on 14 November 2015. AMR agreed that she had had quite a long discussion with DCM on 3 November 2015 about marketing and advertising. Notwithstanding the foregoing AMR maintains that DCM’s failure to attach the schedule to the Form 6 invalidates the agreement. I am satisfied that the words ‘as per schedule’ refer to the handwritten schedule prepared by DCM in the presence of AMR, and discussed with her on 3 November, a typewritten version of which was sent to her on 4 November 2015 which she acknowledge receiving. I am satisfied that there has been substantial compliance with the form. Again, I am satisfied that AMR was neither confused nor misled on this issue.

52. [52]
    At point 12 AMR claims that there were no details on fees and charges provided to her and costs of obtaining Titles should be listed on a separate attachment. The cost of obtaining the Titles was $70.22 and it is included in “Title searches / information brochures $300”. I am satisfied that exhibit 3 contains details of fees and charges.

53. [53]
    At point 13 AMR claims that the contract was not dated by her. AMR acknowledges that she signed the Form 6 at DCM’s office on 5 November 2015 but says she simply forgot to insert the date of signing. She claims she felt under pressure to sign the document as the agent had arranged for a photographer to come to her house that day. I accept DCM’s evidence that after the meeting on 3 November 2015 he left AMR to “think about” the matters discussed that day. Two days later she signed the Form 6. I reject her claim that she signed the form under pressure. AMR refused to answer my questions as to why her failure to date the form should deprive DCM of his entitlement to recover the cost of advertising. Had she read the form carefully before she signed it, which she acknowledged she did not do, she would have noted in Part 9, above where she actually signed the Form, that it contained the following warning:

“WARNING THE CLIENT IS ADVISED TO SEEK INDEPENDENT LEGAL ADVICE BEFORE SIGNING THIS FORM”. 

In the paragraph below the warning, there appears, inter alia, the following:

“If you are unclear about any aspect of this form, or the fees you will be charged, do not sign it.”

54. [54]
    At paragraph 10 on page 4 of her submission AMR says as follows: “I could not consult a lawyer for advice as mine had retired and there wasn’t time to find another and obtain an appointment on short notice and I was flat out with decluttering, mowing, trimming hedge, cleaning etc. for the proposed photos on Friday morning”.

55. [55]
    Part D of the ITEMS SCHEDULE is headed ‘Solicitor Details for Client’. The name ‘Chris Tait’ has been written in there and then crossed out.

56. [56]
    As at 3 November 2015, Mr Tait had retired from legal practice and had been an elected councillor on the Toowoomba Regional Council for almost four years. He had been a long term partner of a well-established legal firm in Toowoomba. A number of his former partners continue to practice in the firm. There are also many other solicitors practicing in Toowoomba. AMR had approximately 48 hours from the initial meeting with DCM on 3 November 2015 until she signed the Form 6 on 5 November 2015 in order to obtain legal advice. I do not accept her assertion that she was unable to do so.

57. [57]
    AMR claims that when DCM observed that she had not dated the form, that she should have been recalled to his office. Instead he inserted the date “6.11.2015” under her signature. (See exhibit 7.) November 6, 2015 was clearly the incorrect date. I am satisfied that the date on which AMR signed the Form 6 was 5 November 2015. Given that it was AMR’s responsibility to sign and date the form (see section 109(1)(a) of POA) the applicant should not be penalised if she failed to insert the date of signing. I am satisfied that AMR was neither misled nor confused. I am satisfied that there was substantial compliance with the Form 6.

58. [58]
    At point 14 AMR claims that she was not given a copy of the Form 6 yet in her sworn evidence she acknowledged that she did ask for and was given a copy of the Form 6. At paragraph 2.5 of her submission, exhibit 9, AMR acknowledged having received a copy of the Form 6.

59. [59]
    At point 15, AMR alleges, “Advice on market price box is mostly blank and CMA (Comparative Market Analysis) not attached as requested by the form if the section is not filled in.” I refer to section B in the Items Schedule. A box indicating the client acknowledges receipt of Comparative Market Analysis has been ticked. In this regard I refer to exhibit 2 being the letter from DCM to AMR dated 4 November 2015. Part B of the Items Schedule, “Advice as to Market Analysis” requires the agent to “compare the property with at least three properties sold within the previous six months that are of a similar standard or condition to the property and are within five kilometres of the property….” I accept that for rural properties it may be difficult if not impossible, to provide comparable sales within five kilometres of the subject property. The letter of 4 November 2015 assesses the global value of the four parcels of land the subject of the sale, in a range of $1.85 million to $2 million. The six “Recent Comparison Sales” were useless in terms of providing details of comparative sales as none of them exceeded $1 million. I am satisfied that DCM did not provide details of the Comparative Market Analysis, notwithstanding that he ticked the box indicating that AMR acknowledged having received same.

60. [60]
    Part B, paragraph 2 on page 3 of her submission, exhibit 10, AMR says “… We received a good private offer of $1.85 million and were aware with properties on the market and sold, that we could sell at a much better price….” Notwithstanding that she had this knowledge, I accept AMR’s evidence that she requested details of the marketing analysis and she was entitled to receive it. .

61. [61]
    Unless DCM obtained a clear and unequivocal statement from AMR that she did not require comparable sales details, he should have provided same to her unless he could not do so, in which case the box should not have been ticked. DCM said that as the property was going to auction he could not provide details of comparable sales. I do not accept that explanation. The fact that the property was going to auction is a different issue from providing details of comparable sales. DCM is a very experienced rural estate agent and in my view he should have made some realistic attempt to advise AMR of comparable sales of rural properties in the order of $2 million even if such sales had been made more than five kilometres from her home.

62. [62]
    Point 16. Section G “Privacy” of the ITEMS SCHEDULE was not completed in any respect. If the ‘Privacy Section’ was to be completed it required the box to be ticked, DCM to write in the address of his agency website and attach a “Privacy Notice and Consent by the Agent”. If AMR advised DCM that she waived this requirement then the section should have been crossed out and initialled accordingly.

Conclusion

63. [63]
    Completion of Parts B and G of the ITEMS SCHEDULE was not mandated by the POA or the Regulation. However the ITEMS SCHEDULE forms part of the agreement between the parties. Subject to the foregoing, it was incumbent on DCM to provide the relevant information to AMR which he did not do. The applicant is not entitled to recover its marketing charges and the application is therefore dismissed.

D Carroll

Magistrate