Sharp v Tapp[2018] QCAT 20

REASONS FOR DECISION

1. [1]
   On 29 June 2017 the Applicant Ms Sandra Sharp commenced minor civil dispute proceedings against Mr John Raymond Tapp, claiming $13,923.20. Ms Sharp is a real estate agent, and Mr Tapp is a homeowner who has recently sold his house.  The claim sum is made up by $13,607.50 as agent’s commission, now claimed by Ms Sharp to be owing to her by Mr Tapp in consequence of the house selling, together with $315.70, representing the QCAT filing fee. 
2. [2]
   In her originating application, Ms Sharp expressed her claim in these terms:

I was appointed as the exclusive agent to sell a property by Mr Tapp. I secured a contract for the property from Mr Stamataros. The contract was accepted by Mr Tapp and a building and pest inspection was conducted.  Mr Stamataros requested access to the property as a result of the building and pest inspection report, but this was denied by Mr Tapp. Mr Stamataros subsequently withdrew the offer and Mr Tapp terminated the agreement with me to act as his agent. Shortly after Mr Stamataros purchased the property from Mr Tapp and I received no commission. I believe Mr Tapp owes me the commission as I introduced the buyer.

3. [3]
   In his Response on 31 August 2017, Mr Tapp admitted having appointed Sandra Sharp pursuant to an exclusive agency agreement dated 15 February 2016, yet says that this had expired on 12 May 2016, and Ms. Sharp had not managed to sell the property by that time, such that he was at liberty to appoint another agent, which he did, also on 12 May 2016.  Although the property was eventually sold to Mr Stamataros (on 25 May 2016), Mr Tapp says that the sale had been brought about in consequence of efforts by the second agent, and not via those of Ms Sharp. 
4. [4]
   By the time of the hearing of this matter on 9 November 2017, Mr Tapp had refined his initial arguments, and now contends three things:

   1. Firstly, by his citing rule 54(4) of the QCAT Rules, that Sandra Sharp has no entitlement to sue, because the agency agreement signed by Mr Tapp on 15 February 2016 lists Puptell Pty Ltd, trading as Belle Property Manly as the appointed agent;
   2. Secondly, that Puptell Pty Ltd was not properly appointed under the Property Occupations Act 2014; and
   3. Thirdly, that Mr Stamataros had terminated the original contract under which he had been introduced to the property by Sandra Sharp, because the results of the building and pest inspection had not been satisfactory to him.  Although Mr Tapp amply concedes that Mr Stamataros did later purchase the property, he says that this was done pursuant to an unconditional contract that had been presented to Mr Tapp by the next agent, and there is no evidence to suggest that Sandra Sharp had been instrumental in influencing Mr Stamataros to change his mind and ultimately agree to purchase the property pursuant to an unconditional contract.
5. [5]
   It seems to me that this claim falls to be determined by my resolution of the third of these contentions, only. I will however briefly deal with the other arguments now raised by Mr Tapp.

The Applicant’s standing

6. [6]
   Mr Tapp says that Ms Sharp lacks standing because the appointed agent was Puptell Pty Ltd, and cites rule 54(4) of the QCAT Rules 2009.  So far as is relevant, Rule 54 of the QCAT Rules provides:

54 Corporation

3. (1)
    A corporation may appear in a proceeding through an officer of the corporation who is authorised by the corporation to act for it in the proceeding.

…

3. (4)
    If the officer authorised to act for the corporation under subrule (1) is not an Australian legal practitioner, the corporation must give the tribunal a certificate of authority for the authorisation.

3. (5)
    In this rule—

officer, of a corporation, means—

1. (a)
   an officer within the meaning given by the Corporations Act, section 9 for a corporation; or

2. (b)
   an employee of the corporation.

7. [7]
   Real Estate Agents must be properly appointed, pursuant to the provisions of the Property Occupations Act 2014 (‘the POA’). This is done by means of a POA prescribed form (Form 6), which is described as a form for the ‘Appointment and reappointment of a property agent, resident letting agent or property auctioneer’. 
8. [8]
   The Form 6 signed by Mr Tapp on 15 February 2016 specifies the agent to be “Puptell P/L t/as Belle Property Manly”, who was given a single appointment, as exclusive agent for the period from 15 February 2016 until 12 May 2016.  The Licensee of that agency is specified on the Form 6 signed by Mr Tapp to be a Melissa McIlveen (Licence Number 3050275), yet the email address for the agent is specified as Sandra Sharp’s email address (at Belle Property), and the Form 6 acknowledgement of exclusive agency is then signed by Sandra (Sandi) Sharp, on behalf the agent.   The Form 6 instrument of appointment specifies that Mr Tapp is required to pay a commission to the appointed agent:

   • “whether this agent, any agent, or person (including the client themselves) sells the property during the term of the appointment”; or
   • “if the client sells the property, the exclusive appointment expires and if the agent was the effective cause of sale (introduced the buyer to the property) the agent may be entitled to commission”

(the emphasis is not in the original, and has been inserted here, by me)

9. [9]
   It becomes reasonably clear from the manner in which the Form 6 was completed that Ms Sharp was an employed agent at Belle Property Manly. Mr Tapp however still raises the spectre of Rule 54(4) as a hurdle, and says that Puptell Pty Ltd must give Sandra Sharp a certificate authorising her to act on behalf Puptell Pty Ltd. In response, Sandra Sharp initially produced an affidavit sworn by a Trevor McIlveen, who says that he was a director of Puptell Pty Ltd between 1 April 2014 and 2 September 2017 and that he authorised Sandra Sharp to bring this claim. Yet, Mr Tapp objects to that affidavit because ASIC records reveal Trevor McIlveen ceased as a director of Puptell Pty Ltd as long ago now as September 2004.  I accept therefore that Trevor McIlveen is very likely mistaken regarding his recollection that he was still a director of Puptell Pty Ltd on 2 September 2017.  Ultimately, Trevor McIlveen’s confusing recollection is overcome by another affidavit, obtained by Ms Sharp from a David John Lazarus, as was sworn by Mr Lazarus on 7 November 2017.  Mr Lazarus deposes that he is a director of DNM Sales Pty Ltd, which had purchased Belle Property Manly from Puptell Pty Ltd on 1 September 2017, and that DNM Sales Pty Ltd now authorises Ms Sharp to bring this claim against Mr Tapp. I accept that to be sufficient certificate of authority for Sandra Sharp, in conformity with Rule 54(4).  I find therefore that Ms. Sharp has standing to commence these proceedings in her own name. This then sufficiently deals with the first of Mr Tapp’s submissions.

Compliance with the Property Occupations Act 2014

10. [10]
    In his final submissions Mr Tapp contends, albeit in an incomplete way, that Puptell Pty Ltd were not properly appointed as the agent by reason that the original appointment was a single appointment, which expired on 12 May 2016.  As authority for the proposition Mr Tapp cites EIT Pty Ltd t/a PRWR ([2016] QCAT 449).  That case, which follows earlier authorities, including Yong Internationals Pty Ltd v Gibbs & Ors ([2001] QCA 161); and QUYD Pty Ltd v Marvass Pty Ltd ([2008] QCA 257), is authority for the proposition that an agent may not sue to recover marketing charges if items on the Form 6 that are mandatory under the POA (or its regulations) are left incomplete on the form. 
11. [11]
    Because of the reference to EIT Pty Ltd t/a PRWR, I infer that Mr Tapp intends to submit that, because the Form 6 did not indicate Puptell Pty Ltd to have a continuing appointment, the Form 6 is “lacking in a material particular”, such that the agent cannot seek to rely upon it as the basis for claiming an entitlement to commission for a sale arising after 12 May 2016.  However, I cannot be confident that my (presumed) understanding of the intent of the submission is correct. Ultimately, the submission would be better if it only went so far as to identify that section 104(1)(b) of the POA mandatorily requires that the appointment of an agent include a statement, in the approved form, as to whether the appointment is a single appointment, or a continuing appointment; and that in this case the Form 6 indicates that the appointment was only for a single term. I intend to approach the case on that basis, and because of my reservations about the presumed intent of the submission will not decide the point beyond that.

Entitlement to Commission

12. [12]
    The original contract between Mr Tapp and Mr Stamataros wherein the introduction had been made by Ms Sharp was terminated by Mr Stamataros, on 3 May 2016.  Thus, Ms Sharp failed to “sell the property during the term of the appointment”, which is one of the circumstances under which Mr Tapp would be contractually required to pay an agreed commission to Ms Sharp.  Notwithstanding the ending of the exclusive agency on 12 May 2016, Mr Tapp may still be required to pay a commission to Ms Sharp, in the event that Ms Sharp was the “effective cause” for the eventual sale (in this case also to Mr Stamataros).

Who was the effective cause for the sale?

13. [13]
    Some further elucidation of the events culminating in the sale by Mr Tapp to Mr Stamataros is worthwhile.  None of these facts are contentious:

    1. On 15 February 2016 Puptell Pty Ltd trading as Belle Property Manly were appointed as sole and exclusive agent for the sale of 14 Glenpatrick Street, Manly West, for the period up until 12 May 2016.
    2. Ms Sharp introduced Mr Stamataros to the property. On 19 April 2016, Mr Tapp had agreed to sell the property to Mr Stamataros for $513,000, yet subject to finance and also to a building inspection, and pest inspection, that were acceptable to the purchaser.  Mr Stamataros had until 3 May 2016 to satisfy himself in relation to those things.
    3. On 3 May 2016 Ms Sharp advised Mr Tapp that the building and pest inspection reports had recommended that there be a further inspection, this time by an engineer.  Ms Sharp informed Mr Tapp that Mr Stamataros now wished to engage an engineer to prepare a further report.  Yet, the special conditions in the contract dated 19 April 2016 made no provision for the purchaser obtaining an engineer’s report. 
    4. On 4 May 2016 Mr Tapp delivered an ultimatum to Mr Stamataros via Ms Sharp: either purchase the property in accordance with the agreed special conditions, or terminate.
    5. On 5 May 2016 solicitors for Mr Stamataros notified those acting for Mr Tapp that their client was not satisfied with the pest and building inspections and therefore elected to terminate the contract.  That letter also noted their instructions to communicate that their client felt compelled to terminate, solely because of the refusal by Mr Tapp to further agree to an engineering inspection. 
    6. On or about 12 May 2016 Mr Tapp terminated the exclusive agency held by Puptell Pty Ltd and appointed JLP Real Estate as exclusive agents.  JLP commenced an on-line and local newspaper marketing campaign. 
    7. On 25^th May 2016, JLP Real Estate was approached by Mr Stamataros, who indicated that he wished to make an offer of $513,000 on Mr Tapp’s property.  Mr Stamataros did not inform the new agent that he had already put in an offer of this amount on this property via the aegis of the former agent, Ms Sharp.
    8. On 25 May 2016 the agent from JLP conveyed the offer of purchase to Mr Tapp for $513,000, subject to an acceptable engineering inspection.  At this stage Mr Tapp informed the new agent that Mr Stamataros had made an offer in that amount beforehand that had been accepted, but had terminated the contract at the purchaser’s election.  JLP Real Estate was told that Mr Tapp’s views about an engineering inspection had not changed, in the interim. 
    9. The new agent spoke to Mr Stamataros on 25 May 2016 telling him that Mr Tapp would only accept an unconditional offer.  Mr Stamataros then agreed to make his offer unconditional.  Settlement took place on 9 June 2016.
14. [14]
    Whether a real estate agent was the “effective cause” for a sale is a question of fact, one that needs to be determined in each particular case. 
15. [15]
    In Moneywood Pty Ltd v Salmon Nominees Pty Ltd, Gummow J said:^[1]

The notion of "effective cause" reflects the requirement expressed in a long line of cases that it is not enough that the engagement of the agent to find a purchaser or to introduce a purchaser was a step without the taking of which the sale would not have been effected. Something more immediate is required if the criterion of contractual liability is to be satisfied.  This is because, as McPherson J put it in Doyle v Mount Kidston Mining and Exploration Pty Ltd, ([1984] 2 Qd R 386 at 392) it would be "quite artificial to suppose that the parties intended that the agent should earn his commission simply by finding or locating an individual who, independently of any further action by the agent, later agreed to buy the subject property.

16. [16]
    Later, his Honour said:^[2]

….in Tribe v Taylor^[3], Brett J said that it was not enough that the transaction probably would not have been entered into but for the original introduction by the agent: the agent must show that some act on its part was the causa causans, causa proxima not being the question. Sir Richard Henn Collins MR spoke to the same effect in Millar, Son and Co v Radford^[4]; to show that the introduction was a causa sine qua non was insufficient. Thus, the mere fact that the agents in that case had introduced a tenant or a purchaser was not enough, it being necessary to show that the introduction was “an efficient cause” in bringing about the transaction. These three authorities were then relied upon by the Privy Council in Burchell v Gowrie and Blockhouse Collieries Ltd^[5] as settling the law. Burchell has often been followed in Australia, including by this Court in L J Hooker Ltd v W J Adams Estates Pty Ltd.^[6]

17. [17]
    It seems clear that Mr Stamataros was introduced to the property via the marketing efforts of Ms Sharp.  After becoming aware of the existence of the property for sale Mr Stamataros then made two distinct offers: firstly via Ms Sharp, during the period of the exclusive agency agreement with Belle Property Manly; and secondly, during the period of Mr Tapp’s agency agreement with JLP Real Estate. Notwithstanding that the offer amount on each occasion was the same, the distinction between these two is to be found in the fact that the first offer was a conditional offer, yet the second was unconditional. 
18. [18]
    There is no evidence before the Tribunal from Mr Stamataros. 
19. [19]
    Even more tellingly, there is no evidence from Ms Sharp to show the factor that became determinative in Mr Stamataros eventually relenting on his desire to have an engineering inspection report, as a precondition to his purchasing.
20. [20]
    On the state of the evidence now before the Tribunal, Ms Sharp can do no more than say that she “introduced” Mr Stamataros. However the law requires that Ms Sharp be able to show more than that.  The evidence must show that she was the “effective cause” for the sale.  Here, adopting the language of Brett J in Tribe v Taylor - as was referred to by Gummow J in the passage from Moneywood Pty Ltd v Salmon Nominees Pty Ltd that has been excerpted by me at paragraph [16] (above) - the evidence suggests Ms Sharp only as the “causa proxima”.  It must however reveal her to be the “causa causans”.  In the end, the evidence does not do that, as Ms Sharp cannot point to evidence to show that it was her efforts that were instrumental in Mr Stamataros dropping his erstwhile insistence on having an engineer’s report that was acceptable to him, before buying.  In all of the circumstances, the better inference is that something that was either said or done by the second agent on 25 May 2016 - and no matter how trivial that may have been - must have been ‘the factor’ that finally  acted as the “effective cause”, thus causing Mr Stamataros to make an unconditional offer. 
21. [21]
    The Application is dismissed. 
22. [22]
    Mr Tapp seeks costs in the sum of $1,200 to which he is not entitled.  Accordingly there will be no order as to costs.