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Millar v Cox[2016] QCATA 2

CITATION:

Millar v Cox [2016] QCATA 2

PARTIES:

Michael Millar

(Applicant/Appellant)

v

Gayle Cox

(Respondents)

APPLICATION NUMBER:

APL412 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

4 January 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Leave to appeal granted.
  2. Appeal allowed.
  3. The decision of 29 September 2015 is set aside.
  4. Caboolture MCD file Q75/15 is dismissed.
  5. If Michael Millar has paid Gayle Cox $7,672.30, or any of it, pursuant to the tribunal’s order of 29 September 2015, then Gayle Cox shall refund the amount paid by 25 January 2016.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – MINOR DEBT – PROPERTY AGENTS – where claim for commission on sale of property – where agent provided a superseded form – where tribunal ordered payment of commission – whether agent entitled to payment of commission – whether grounds for leave to appeal

Property Occupations Act 2014 (Qld) ss 12, 89(1)(c), 102, 104, 249, 251

Fox v Percy (2003) 214 CLR 118

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

  1. [1]
    In February 2015, Michael Millar appointed Gayle Cox as agent for the sale of his property at Bribie Island. Ms Cox introduced Mr and Mrs Fisher, who subsequently bought Mr Millar’s property through another agent. Ms Cox claimed her commission on the basis that she was the effective cause of sale. The tribunal agreed and ordered Mr Millar pay Ms Cox $7,672.30.
  2. [2]
    Mr Millar wants to appeal that decision. Because this is an appeal from a decision of the tribunal in its minor civil disputes jurisdiction, leave is necessary.[1] Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[2]
  3. [3]
    Mr Millar submits the tribunal erred in giving Ms Cox commission when she did not have the necessary authority under the Property Occupations Act 2014 (Qld) (‘Property Occupations Act’ and ‘the Act’).
  4. [4]
    The Property Occupations Act came into force on 1 December 2014, replacing the Property Agents and Motor Dealers Act 2000 (Qld). Ms Cox gave Mr Millar a PAMD Form 22a appointment of real estate agent, a form approved under the previous Act. She should have given him a Property Occupations Form 6. The sole question for the appeals tribunal is whether the incorrect form means that Ms Cox is not entitled to commission.
  1. [5]
    Section 89(1)(c) of the Property Occupations Act states that a person is not entitled to sue for commission unless that person was properly appointed. Section 102 states that an appointment must comply with division 2 and s 109(1) of the Act. Section 104(1) states that an appointment of a property agent must include the following in the approved form (my emphasis).
  1. [6]
    After 1 December 2014, Ms Cox’s used Form 22a was not the use of an approved form.
  1. [7]
    The Property Occupations Act does have transitional provisions. Under s 251 of the Act, the Chief Executive may accept PAMD forms, but only in relation to licences. If Ms Cox had been Mr Millar’s agent prior to 1 December 2014, then, by s 249, her appointment would have continued. However, there is nothing in the Property Occupations Act that preserves the operation of the previous PAMD forms.
  1. [8]
    The Office of Fair Trading published the new forms prior to the start of the Property Occupations Act. It warned licensees: “From 1 December, you will need to use the new forms. The old forms (under PAMDA) will no longer be appropriate to use.[3] The objects of the Property Occupations Act include:
  1. Ensuring only suitable persons with appropriate qualifications are licensed[4]; and
  2. Providing a legislative framework within which persons performing activities for licensees may lawfully operate[5].
  1. [9]
    Ms Cox should have known about the new Form 6. She should have been using it. Her failure to use the appropriate form indicates that she was not appropriately aware of her obligations under the Act. The Act does not provide for a discretion in the tribunal to waive compliance with the obligation to provide the correct form. Ms Cox did not provide the correct form. She was not entitled to commission and the tribunal erred in ordering that she pay commission.
  1. [10]
    Leave to appeal should be granted and the appeal allowed. The decision of 29 September 2015 is set aside. The proceeding should be dismissed.

Footnotes

[1]   QCAT Act, s 142(3)(a)(i).

[2]Pickering v McArthur [2005] QCA 294 at [3].

[3]http://www.qld.gov.au/law/laws-regulated-industries-and-accountability/queensland-laws-and-regulations/fair-trading-services-programs-and-resources/fair-trading-latest-news/new-forms-for-property-agents%2C-motor-dealers%2C-auctioneers-and-debt-collectors/

[4] Property Occupations Act 2014 (Qld), s 12(2)(a)(i).

[5]  Ibid, s 12(2)(b)(ii).

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Editorial Notes

  • Published Case Name:

    Michael Millar v Gayle Cox

  • Shortened Case Name:

    Millar v Cox

  • MNC:

    [2016] QCATA 2

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    04 Jan 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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