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West Property Solutions v Lewis (No 2) QCATA 66
West Property Solutions t/as Century 21 West Property Group v Lewis & Anor (No 2)  QCATA 66
West Property Solutions t/as Century 21 West Property Group
Jason Hunter Lewis
12 May 2015
Senior Member Stilgoe OAM
18 May 2015
APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – REAL ESTATE AGENT – where claim for commission on sale – where agency terminated – whether buyer introduced before termination – quantum of commission
LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52
Rankine & Ors v Rankine & Ors  QSC 281
Newman v Anserdoro Pty Ltd  NSWSC 371
APPEARANCES and REPRESENTATION (if any):
Mr J West, director of the applicant
REASONS FOR DECISION
- West Property Solutions t/as Century 21 West Property Group wants to be paid commission for introducing a buyer to Mr Lewis and Ms Piccirillo’s home at Cashmere. On 24 March 2015, I set aside a decision of the tribunal refusing that claim. I gave directions for the filing of further evidence and listed the dispute for hearing. These are my reasons for decision following that further hearing.
- The eventual buyers inspected the home with an agent from West on 1 February 2014. On 12 February 2014, West presented a signed contract to Mr Lewis and Ms Piccirillo. The contract contained special conditions. One condition was that the contract was subject to the buyers conducting satisfactory electrical, air-conditioning and gas inspections within 14 days from when electricity was connected to the property.
- Mr Lewis and Ms Piccirillo took the contract to their lawyer. On 13 February, he suggested they ask for a different special condition about the electricity and gas. Ms Piccirillo sent the new special condition to West that day. West created a new set of special conditions and sent them through to the buyers, Mr Lewis and Ms Piccirillo on 14 February 2014 at 11:52 am. The buyer sent an email to West at 3:57 pm, referring to a voicemail and noting a minor change to the special conditions. At 4:13 pm on 14 February 2014, West sent a copy of the contract through to the buyer “for clearance”. At 4:16 pm on 14 February 2014, West sent an email to Mr Lewis and Ms Piccirillo advising that the buyer was happy with the special conditions. 14 February 2014 was a Friday.
- Just after midnight, on Saturday morning, Mr Lewis and Ms Piccirillo terminated West’s appointment. They eventually sold the Cashmere property to the same buyers on the same terms as West presented to them on 12 February 2014.
- Mr Lewis and Ms Piccirillo submit that West did not introduce the buyers because the buyers responded to advertising that they paid for; West did not seek them out. Mr Lewis and Ms Piccirillo also submit that West did not introduce the buyers because, if it had, they would not have gone to the trouble and expense of engaging new agents to sell the property.
- The meaning of “introduce” has been the subject of a decision by the Supreme Court of Queensland. A real estate agent was appointed to sell the assets of a partnership. The agent obtained a contract with one of the members of the partnership. The other members of the partnership argued that the agent had not introduced the buyer. Ambrose J disagreed. He held that the real estate agent did introduce the purchaser by the calling of public tenders and the conducting of negotiations which led to the former partner agreeing to purchase the property at the highest realisable price.
- In the same way, West introduced the buyer by advertising, holding open homes and negotiating the terms of a contract. That was the purpose of the appointment. The fact that Mr Lewis and Ms Piccirillo paid for the advertising is not a relevant consideration.
- Whether or not Mr Lewis and Ms Piccirillo went to the expense and trouble of engaging another agent is not the issue in this case. Answering that question will not assist in determining whether West introduced the buyers to Mr Lewis and Ms Piccirillo. West warned Mr Lewis and Ms Piccirillo about the possibility of double commission in its email of 15 February. They cannot say they did not know of the risk. They cannot now say that they did not understand the terms of West’s appointment.
- I am satisfied that West did introduce the buyers and, therefore, it is entitled to its commission.
- West claims $20,570, the commission payable on the first contract it presented to Mr Lewis and Ms Piccirillo. However, in an effort to secure the sale on the second contract, West negotiated its commission down to $11,000. This is the commission it would have received if Mr Lewis and Ms Piccirillo had signed and settled the second contract, so this is the commission to which West is entitled.
- West has claimed, and is entitled to, interest as determined by the tribunal. I have calculated interest from 26 March 2014 to 19 May 2015 according to the Supreme Court Scale at $822.74. I also order that Mr Lewis and Ms Piccirillo pay West its filing fee in the minor civil dispute jurisdiction of $284.60 and the filing fee for the application for leave to appeal of $589.10. In total, therefore, I order Mr Lewis and Ms Piccirillo pay West $12,696.44 by [28 days].
 West Property Solutions t/as Century 21 West Property Group v Lewis & Anor  QCATA 042.
 LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52; Newman v Anserdoro Pty Ltd  NSWSC 371.
 Exhibit B to West’s application filed 6 June 2014.
 Rankine & Ors v Rankine & Ors  QSC 281.
- Published Case Name:
West Property Solutions t/as Century 21 West Property Group v Jason Hunter Lewis and Silvana Piccirillo (No 2)
- Shortened Case Name:
West Property Solutions v Lewis (No 2)
 QCATA 66
Senior Member Stilgoe
18 May 2015