Quach & GLC Partners Pty Ltd
[2025] QCAT 265
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- Unreported Judgment
- Quach & GLC Partners Pty Ltd[2025] QCAT 265
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Quach & GLC Partners Pty Ltd[2025] QCAT 265
Quach & GLC Partners Pty Ltd[2025] QCAT 265
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Quach & GLC Partners Pty Ltd [2025] QCAT 265 |
PARTIES: | MICHAEL VAN THANH QUACH (applicant) V GLC PARTNERS PTY LTD T/A RAY WHITE CLAYFIELD (respondent) |
APPLICATION NO/S: | Q2074-25 |
MATTER TYPE: | Other minor civil dispute matters |
DECISION DATE: | 12 March 2025 |
REASONS: | 18 June 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Lember |
ORDERS: |
|
CATCHWORDS: | TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION – CONSUMER PROTECTION – GUARANTEES, CONDITIONS AND WARRANTIES IN CONSUMER TRANSACTIONS – GUARANTEES, CONDITIONS AND WARRANTIES – whether real estate agent a trader within the meaning of the QCAT Act – whether a statutory exception applies to real estate agency as a discipline not ordinarily regarded as within the field of trade or commerce – whether licensed real estate agent falls within that description Agar v Hyde (2000) 201 CLR 552 Amos v Walter [2021] QCATA 105 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 Carr v Inland Revenue Commissioners [1944] 2 All ER 163 Currie v Commissioners of Inland Revenue [1921] 2 KB 332 Dey v Victorian Railways Commissioners [1949] 78 CLR 62 Early Property Group Pty Ltd (t/a Early Group Valuers v Cavallaro [2010] QCATA 65 Ex parte McLean (1930) 43 CLR 472 Fox v Percy (2003) 214 CLR 118 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Grommen v Hawes [2018] QCATA 49 Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate) Unreported, APL 313 of 2017 Markan v Bar Association of Queensland [2013] QSC 146 Penfold v Firkin & Balvius [2023] QCATA 11 Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield) [2022] QCATA 45 Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162 Prestia v Aknar (1996) 40 NSWLR 165 Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457 Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36 Social & Community Welfare Services (State) Award (1984) 8 IR 364 Yeo v Brisbane Polo Club Inc [2013] QCAT 261 Competition and Consumer Act 2010 (Cth) Schedule 2 Fair Trading Act 1989 (Qld) s 50, s 50A Property Occupations Act 2014 (Qld) s 16, s 34, s 45, s 167, s 169, s 172, s 173 Property Occupations Regulation 2014 (Qld) s 18, s 21 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 4, s 12, s 47, s 62, Schedule 3 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). |
REASONS FOR DECISION
What is the application about?
- [1]On 3 December 2024, Dr Quach made an offer to purchase a property situated in Crosby Rd, Albion (the property) through its selling agent, Ray White Clayfield. The offer was made in the format of a signed Real Estate Institute of Queensland (REIQ) contract in respect of which the property, seller, seller’s agent and deposit holder details were pre-filled in typewritten font, and Dr Quach’s name, offered price, deposit, included chattels and proposed settlement date were handwritten.
- [2]The counter-signed contract was returned to Dr Quach with handwritten amendments to the included chattels, price, deposit, and settlement date details duly initialled by the sellers, that then appear to have been accepted by Dr Quach by the application of his own initials to the changes.
- [3]A statutory cooling-off period had been waived by Dr Quach,[1] and the contract was not otherwise conditional on finance, a satisfactory building and pest inspection or due diligence inquires or the outcome of searches. The property was, in fact, expressly sold on an ‘as is, where is’ basis per special condition 1 to the contract. The settlement date for the property purchase was set for ‘on or before 14 February 2025’.
- [4]By an application for minor civil dispute – consumer/trader dispute filed 12 February 2025,[2] Dr Quach sought orders:
- declaring the signed offer, with crossed out information, used as an improvised contract for sale is invalid, and
- compelling that a separate REIQ Contract for Sale for the Albion property be typed up and populated to be executed.
- [5]Dr Quach’s application expressed that his reason for filing the application was that Ray White Clayfield had breached s 18 of the Australian Consumer Law (ACL) by misleading Dr Quach into believing that he had to sign a contract for sale to make an offer to purchase the property.
- [6]By an application for interim order filed with the substantive application on 12 February 2025, Dr Quach asked the tribunal to direct that “the date of settlement stated on the offer” be extended “to the date of the hearing of this matter”. This was refused by a decision made 13 February 2025.
- [7]As the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.[3] In the course of considering the application for interim order, a jurisdictional issue was identified.
- [8]Although justice is often achieved after a full hearing and tested evidence in a matter, section 62(1) of the QCAT Act permits the tribunal to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
- [9]Accordingly, on 14 February 2025, the jurisdictional issue was put to the parties in directions as follows:
1. The Tribunal intends to consider whether the application for minor civil dispute - consumer trader dispute should be dismissed on the grounds that the Tribunal does not have jurisdiction to hear it. This is because:
(a) Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers the Tribunal’s jurisdiction over minor civil disputes. A minor civil dispute is relevantly defined as a claim arising out of a contract between a consumer and trader.
(b) Consumer and trader are terms defined in Schedule 3 of the QCAT Act where, relevantly a consumer is an individual for whom services are supplied for fee other than in a trade or business carried on by the individual and a trader is a person who in trade or commerce carries on a business of supplying services other than when acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
(c) In Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65, Deputy President Kingham J, stated, in considering whether a valuer came within the exception to the definition of trader:
[17] If the exemption in the definition of trader in the QCAT Act is to have any application at all, it must operate to exclude professionals whose disciplines are not ordinarily regarded as within the field of trade or commerce. A discipline is: 1. A branch of instruction or learning.
[18] Santow J explored the meaning of profession in Prestia v Aknar. He offered the following as a working definition:
“This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.
[19] That formulation is, respectfully, a helpful one in interpreting the meaning of the exemption in the definition of trader in the QCAT Act.
(d) Real estate agents have been found to exercise a profession or discipline and, therefore, have been found to fall outside the definition of trader for QCAT's jurisdiction.
2. Each party is directed to file in the Tribunal and give a copy to the other party of their submissions on the question of jurisdiction, namely, whether the respondent is a trader as defined in the QCAT Act, by 4:00pm on 8 March 2025.
3. The Tribunal will determine the question of jurisdiction on the papers, based on the written submissions of the parties, after 4:00pm on 8 March 2025. If the application is not dismissed for want of jurisdiction, it will be listed for a final hearing.
- [10]Dr Quach filed submissions as to jurisdiction on 7 March 2025. The respondent filed none.
- [11]On 12 March 2025, the application for minor civil dispute was dismissed for want of jurisdiction. Reasons for that decision now follow.
Consumer/trader claims against real estate agents in QCAT
- [12]The full text of the ACL is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth). Section 50 of the Fair Trading Act 1989 (Qld) (FTA) sets out those claims under the ACL to be heard, and those to be heard in a court of competent civil jurisdiction. An ACL claim under s 236 arising from a breach of s 18 (misleading or deceptive conduct) can be heard in the tribunal provided the proceeding is one for a “minor civil dispute”.
- [13]Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) confers the Tribunal’s jurisdiction over minor civil disputes, which are relevantly defined as:[4]
…(b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
- for payment of money of a value not more than the prescribed amount; or
- for relief from payment of money of a value not more than the prescribed amount; or
- for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
- for return of goods of a value not more than the prescribed amount; or
- for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount…
- [14]‘Trader’ is defined in Schedule 3 of the QCAT Act, relevantly as being a person who in trade or commerce:
- carries on a business of supplying goods or providing services; or
- regularly holds themself out as ready to supply goods or to provide services of a similar nature,
other than a person who acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
- [15]In Peng v Darley Properties Pty Ltd (t/a L J Hooker Caboolture-Morayfield) [2022] QCATA 45 (Peng) at [8], Dr Forbes found that:
When the exception clause applies the service provider is not a `trader’ within the meaning of the Act, the proceedings are not a minor civil claim for the purposes of the Act, and the Tribunal has no jurisdiction to entertain them.
- [16]In so finding, Dr Forbes made the following observations:
- The exercise of classifying a profession or discipline for the purpose of the QCAT Act depends on a judgment of fact and degree,[5] guided by the relevant authorities and an assessment of “the general understanding of the community”[6] or of the “ordinary reasonable man”.[7]
- Having regard to comparable decisions concerning minor civil dispute claims against real estate agents in QCAT,
- Although ‘discipline’ is not defined in the QCAT Act, “presumably, all professions are disciplines for the purpose of the QCAT Act”.[8]
- The Macquarie Dictionary defines `discipline’ as (inter alia) `a branch of learning’.[9]
- The concept of a profession refers to an occupation offering skilled services for profit and is neither closed nor inflexible and “not a matter of what (if anything) the legislature demanded of estate agents in times gone by, but of what it requires today”.[10]
- As referenced in the Directions made 14 February 2025, in Prestia v Aknar (1996) 40 NSWLR 165 at 186, Santow J listed several indicia of a profession, as distinct from a trade including that:
[A] working definition of [professional activity] … would embrace intellectual activity … professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.
- Real estate agency involves “intellectual activity … professional standards of competence, training and ethics … reinforced by some form of official accreditation accompanied by evidence of qualification”[11] and are indicative of a modern profession by requirements that they:
- are licensed,[12]
- satisfy the registration authority that they are “suitable persons”,[13]
- hold approved post-secondary qualifications,[14]
- maintain trust accounts,[15] and
- comply with a statutory code of conduct and discipline[16] as well as ethical requirements are imposed upon them, or fortified, by law.[17]
- [17]Dr Forbes noted several other cases that have decided the point[18] including his earlier unreported decision in Kommouna & Anor v A W & K J Reid Pty Ltd (t/a Reid Real Estate) (APL313-17) where it was held that the agent was not a `trader’ and, consequently the application failed for want of jurisdiction.
- [18]In addition to meeting the ‘modern indicia’ requirements for licensing, registration, continuing legal education, qualifications and maintaining a trust account to hold the deposit payable under the contract, the selling activities of Ray White Clayfield the subject of Dr Quach’s claim also required compliance with the Property Occupations Act 2014 (Qld) the terms of appointment (ss 102 and 103), commission payable (s 105), disclosure to prospective buyers (s 157) and cooling off periods (s 166).
- [19]I am satisfied, therefore that, Ray White Clayfield in the context of the activities the subject of the claim, was acting in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce.
Dr Quach’s submissions on jurisdiction
- [20]Dr Quach relies upon the definition of ‘trade and commerce’ set out in the preamble to the Australian Constitution (to provide a “common market”) and in the Competition and Consumer Act 2010 (Cth) (ACL), sch 2 s 2 definition that expressly includes professional activity within the definition of trade and commerce.
- [21]He says that the QCAT Act definition of ‘trade and commerce’ is inconsistent with the Commonwealth definition and pursuant to s 109 of the Constitution the law of the Commonwealth prevails to the extent of the inconsistency. The exclusion of ‘disciplines’ contained within the QCAT Act, as State legislation, he says, is invalid for that reason.
- [22]Dr Quach argues that Ray White Clayfield “engaged in “trade and commerce,” in an ordinary sales transaction of property. Such sales transaction is regarded as ordinary in the field of “trade and commerce” in “An Australian Common Market””, under the Australian Constitution and QCAT has jurisdiction in this matter on that basis.
- [23]The ACL commenced on 1 January 2011 in all Australian States and Territories, harmonising existing consumer protection provisions of the Trade Practices Act 1974 (Cth) and State and Territory fair trading laws.
- [24]Clause 3.2 of the 2009 Intergovernmental Agreement for the Australian Consumer Law (IGA) provides that the Commonwealth, States and Territories should endeavour to repeal, amend or modify any legislation that is inconsistent with or alters the effect of the ACL.
- [25]An inconsistency may be identified where:
- the Commonwealth law is intended to deal completely with the subject matter covered by it,
- the State law cannot be followed at the same time as the Commonwealth law,
- the State law permits a certain activity, prohibited by the Commonwealth law, or
- the State law confers a right or protection which the Commonwealth law seeks to remove.[19]
- [26]I am not satisfied that the FTA or the QCAT Act are inconsistent with the ACL. They do not:
- permit activities that are otherwise prohibited by the ACL (for example, misleading and deceptive conduct is not permitted by either State law),
- confer a right or protection to certain groups that the ACL seeks to remove, or
- impose an obligation or requirement that cannot be followed at the same time as the ACL.
- [27]Neither the FTA nor the QCAT Act is inconsistent with the ACL. For example, they do not protect those engaged in a discipline from complying with the ACL, relieve them from complying with the ACL or permit them to undertake activities that are otherwise prohibited under the ACL.
- [28]Section 50 of the FTA simply directs where a proceeding for the purposes of a provision of the ACL in Queensland must be heard, whether in the tribunal or in a court, having regard to:
- for the tribunal, whether the subject of the proceeding:
- would be a minor civil dispute within the meaning of the QCAT Act; or
- would be a matter to which section 50A applies (consumer actions relating to motor vehicles seeking an amount of value of other relief not more than $1000,000.00); and
- for a court - any civil jurisdictional limit, including any monetary limit, applying to the court.
- for the tribunal, whether the subject of the proceeding:
- [29]The QCAT Act definitions then set the limit of the jurisdiction of the Tribunal to hear and determine certain ACL claims as minor civil disputes. A consumer’s right to pursue claims falling the minor civil dispute jurisdiction (including against those engaging in a discipline) are not lost by the operation of the QCAT Act. Rather, those rights must, per s 50A of the FTA, be exercised in a court with the civil jurisdiction to hear it.
- [30]There is no merit in Dr Quach’s argument on inconsistency and he has made no submissions as to whether the respondent exercises a ‘discipline’ such as would persuade me to depart from the comparable authorities mentioned in paragraphs [16] and [17] above.
Consideration of strike out
- [31]The objects of the QCAT Act include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal, and quick,[20] and to achieve these objects the tribunal is required, among other things, to ensure proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[21]
- [32]In doing so, the tribunal must be mindful that their resources serve the public, not just the parties to the proceedings, Justice Wilson noting in Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 at [13] that:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”.[22] Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.[23]
- [33]The tribunal can act on its own initiative[24] under section 47 of the QCAT Act to strike out or dismiss a proceeding if the tribunal considers a proceeding is:
- frivolous, vexatious or misconceived; or
- lacking in substance; or
- an abuse of process.
- [34]
- [35]
- [36]I am so satisfied: the respondent performing activities as a licenced real estate agency in the sale of a property acts in the exercise of a discipline that is not ordinarily regarded as within the field of trade or commerce. It is not, therefore, a ‘trader’ as defined in the QCAT Act and the claim cannot arise ‘out of a contract between a consumer and a trader.
- [37]Further, the relief sought in the application is not:
- for payment of money of a value not more than the prescribed amount; or
- for relief from payment of money of a value not more than the prescribed amount; or
- for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
- for return of goods of a value not more than the prescribed amount; or
- for a combination of any two or more of those claims.
- [38]For those reasons, the application is not a ‘minor civil dispute’ as defined and the tribunal lacks jurisdiction to hear it. It is futile and dismissed pursuant to section 47 of the QCAT Act on that basis.
Footnotes
[1]Property Occupations Act 2014 (Qld), s 167; Waiver signed 3 December 2024.
[2]Amended, with leave 10 March 2025.
[3]Penfold v Firkin & Balvius [2023] QCATA 11.
[4]QCAT Act, Schedule 3, paragraph 1(b) of definition of ‘minor civil dispute’.
[5]Currie v Commissioners of Inland Revenue [1921] 2 KB 332 at 340; Robbins Herbal Institute v Federal Commissioner of Taxation (1923) 32 CLR 457 at 461 per Starke J; Re Social & Community Welfare Services (State) Award (1984) 8 IR 364; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219.
[6]Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7 per Isaacs J; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 219 per French J.
[7]Carr v Inland Revenue Commissioners [1944] 2 All ER 163 at 167 per du Parcq LJ.
[8]Peng at [10].
[9]Peng at [10].
[10]Peng at [11]-[12].
[11]Prestia v Aknar (1996) 40 NSWLR 165 at 166 per Santow J.
[12]Property Occupations Act 2014 (Qld), s 16.
[13]Ibid, s 34.
[14]Ibid, s 45.
[15]Ibid, s 169.
[16]Ibid, ss 172-173.
[17]Property Occupations Regulation 2014 (Qld) s 18 (conflicts of interest); s 21 (duty towards agents already appointed).
[18]Early Property Group Pty Ltd (t/a Early Group Valuers) v Cavallaro [2010] QCATA 65; Amos v Walter [2021] QCATA 105; Grommen v Hawes [2018] QCATA 49; Rowley v Abacus Associates Pty Ltd & Anor [2017] QCAT 36.
[19]Ex parte McLean (1930) 43 CLR 472.
[20]QCAT Act, s 3.
[21]Ibid, s 4.
[22]Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 217.
[23]Fox v Percy (2003) 214 CLR 118 at 128 per Gleeson CJ, Kirby and Gummow JJ.
[24]Section 47(3) of the QCAT Act.
[25]Yeo v Brisbane Polo Club Inc [2013] QCAT 261, [5]-[7] citing Dey v Victorian Railways Commissioners [1949] 78 CLR 62.
[26]General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
[27]Yeo, ibid at [6], citing Agar v Hyde (2000) 201 CLR 552; Platinum United II Pty Ltd & Anor v Secured Mortgage Management Ltd (in liq) [2011] QCA 162; Markan v Bar Association of Queensland [2013] QSC 146.