Decker v Anderson[2008] QDC 283

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The first and second defendants were the registered proprietors of adjoining residential land at 211 and 219 Norris Road, Bracken Ridge respectively.  It was convenient for the defendants to sell their respective parcels in one lot as they would be of more value if the area was combined for development purposes.  The plaintiff was appointed as their agent for the sale.  At that time, the plaintiff was employed by the Professionals, a real estate agency at Sandgate.  Subsequently, he started his own agency, John Decker Real Estate.  The defendants retained his services.  By appointments in writing, the defendants appointed the plaintiff as their agent for the purpose of selling their respective lots.^[1]

2. [2]
   By those appointments, the plaintiff was given exclusive agency for the period from 25 October 2004 to 23 December 2004 in relation to each lot.  After the expiration of the exclusive agency period, the engagement was on an open basis.  In relation to the first defendants land (“the Anderson land”), the price was “$1,000,000 to $1,500,000”.  In relation to the second defendant’s land (“the Griffiths land”), the price was “$1,300,000 to $1,500,000”.  It is alleged that some pages were missing from each of the forms.^[2]  The effect of this is an issue in the case.

3. [3]
   Initially, contracts were signed by Chateau Carlotta Pty Ltd as purchaser with a purchase price of $1,250,000 for each property.^[3]  The defendants did not sign that contract as there was some concern by the defendants, particularly the second defendant, that the developer might delay in getting approval for the subdivision.  A period of six months was allowed for council approval, after the 90 days allowed for due diligence.^[4]  Also, the purchasers had a right to extend the option of the consents provided for in clause 3 indefinitely.  It was admitted by the defendants that Ms Bernadette Dixon acted with the authority of the companies involved in the transaction, Chateau Carlotta Pty Ltd and Eight March Pty Ltd, the ultimate purchaser.  They were part of the Habitare Development group of companies.^[5]

4. [4]
   By letter dated 4 February 2005, the plaintiff referred to the negotiations in which he was involved and stated that:

“(U)nless you wish to revisit the Habitare offer, I do not wish to continue on with the selling of the properties.” 

The offer to which he referred was contained in Exhibits 20 and 22.  The purchaser, Chateau Carlotta Pty Ltd, was insisting on nine months for the development approval. The plaintiff has advised the defendants that he did not think that a longer period was unreasonable.^[6]  Thereafter, the defendants signed contracts with Eight March Pty Ltd.^[7]  The purchase price was $1,300,000 for each property.  There was also a special clause 10 which provided in each instance:

Notwithstanding anything hereinbefore written, should the buyer extend the date of consent in accordance with clause 3.2.1 it (sic) is agreed that $15,000.00 of the deposit shall become non-refundable and be immediately released by the deposit holder to the seller upon written request by the seller or the seller’s solicitor.

5. [5]
   The contract also provided that the second defendant be given a lease over her property for a period of 60 days from the date of settlement at a market price.^[8]  The defendants gave evidence that these “sweeteners” gave them the incentive to sign the contract with Eight March Pty Ltd.  This included the price increase.^[9]  A different agent was involved, a Mr Shaun Nolan.  The two companies, Chateau Carlotta Pty Ltd and Eight March Pty Ltd had interlocking directors and company secretaries.  Their in-house legal officer, Ms Dixon, prepared all drafts and final contracts on behalf of both companies.  The plaintiff’s case is that he was the effective cause of the purchase of the properties and is entitled to commission on the sale. The amount sued for is $28,600.00 on each property sold.

Issues for determination

6. [6]
   The allegation about the missing pages of the plaintiff’s appointment as agent is only relevant to the first defendant.^[10]  It was conceded in argument that the missing page relevant to the second defendant is not of any significance.  The significance of the missing pages 8 and 9 ^[11] is that they include references to entitlements to commission, authority to pay commission, conjunction sales, no prior appointment of another agent and auctions and the agent’s entitlement to termination penalties.  There is also the lack of detail appearing in clause 4 of each form of appointment.  That relates to the lack of detail as to what services would be provided by the plaintiff.  The defendants contend that the lack of detail in clause 4 of the form disentitles the plaintiff from recovering from the defendants as the form does not comply with the requirements of ss 133, 134 and 140 of PAMD Act.

7. [7]
   The main issue in the case is whether the plaintiff was the effective cause of the sale, that is, whether the “the causal connection between the agent’s efforts and the completion of the transaction” has been proved.^[12]

Background evidence

8. [8]
   It is necessary to look at how the contracts were presented, amended, and then abandoned in order to decide whether the plaintiff was a cause of the final contracts which settled.  On 28 November the plaintiff sent a contract to the solicitor for the defendants, Mr Terry Delaney.  The contracts for each property provided for a six month development period.  That proposed contract was sought to be amended by an attachment to a letter dated 22 December 2004.^[13]  The price was $1,250,000 for each property.  There was the 90 days due diligence and 9 months for the development approval. It also gave an option to the purchaser to extend the consent period by 3 months.^[14]

9. [9]
   This letter and attachment ^[15] was sent to the defendants’ solicitor with some comments by the plaintiff that the development approval time was the major item with the right of extension being a “stumbling block”.^[16]  By letter dated 13 January 2005, ^[17] the plaintiff sent a letter to Ms Dixon in the following terms:

1. (a)
   2.1 –  Please add “All costs to be borne by Chateau Carlotta Pty Ltd”

2. (b)
   3.1  – Change to 6 mths

3. (c)
   3.2.1  – Delete – “For a period of 3 mths”

4. (d)
   3.2.3 – Add new clause – “The seller reserves the right not to extend the contract if they can show that the purchaser has been responsible for delaying Development Application approval”

5. (e)
   4 – This only relates to 219 Norris Rd. Access to the block requires 48 hrs notice, as owner has dogs & is a shift worker.

6. (f)
   8  – Deposit $50,000.00

7. (g)
   8.1 - First Deposit $10,000.00

8. (h)
   8.2  – Second deposit $40,000.00

1. (i)
   New clauses The purchaser will provide the seller with a monthly report on the progress of the development application…

10. [10]
    There were some other changes suggested which are not relevant for present purposes.  The reply from Ms Dixon ^[18] dealt with the proposed changes, including the removal of trees.  The reply, having referred to a conversation on 17 January 2005, stated:

Clause 2.1  Agreed.

Clause 3.1  Agreed.

Clause 3.2.1  Agreed.

A new clause 3.2.3 will be added in the following terms:

Notwithstanding the preceding provisions of clause 3.2.1 in the event that the Seller believes on reasonable grounds that the Buyer has delayed the Approval, then the Seller may by notice in writing setting out the grounds upon which the Seller relies, advise the Buyer of this matter, and upon receipt of this notice and notwithstanding whether the notice is received after the Date of Consent, the Buyer may elect to waive its rights pursuant to Special Condition 3.1 and request the Seller to proceed to completion as if the Approval has been obtained on the Date of Consent.  The Seller agrees with the Buyer that in exercising its rights pursuant to this Special Condition 3.2.3 the Seller will at all times act reasonably.

Clause 4 for 219 Agreed

Clause 8 $50,000 Agreed

Clause 8.1 The Buyer is prepared to increase the First Deposit to $5,000 on each. You will be aware that in pursuing the matter during the Due Diligence Period the Buyer will be incurring substantial costs with               its consultants and hence requires the flexibility with its cash flow during this period.

Clause 8.2 This amount will therefore be increased to $45,000.00.

As regards the new clause, I am instructed that the Buyer is prepared to insert a clause where the Buyer will give reports if a written request is received from the Seller but does not wish to (sic) be bound to providing reports on a certain date as this could be missed through illness etc.

11. [11]
    The first offer from Chateau Carlotta Pty Ltd was made on or about 5 November 2004.^[19]  The price was $1.25M.  Subsequently, on 27 January, Ms Dixon sent new proposed contracts to the plaintiff with the changes as discussed.^[20] The details as summarised by the defendants were:^[21]

1. (a)
   Price   $1.25M

2. (b)
   Deposit  1st $5,000, 2nd $45,000

3. (c)
   Due diligence  90 days

4. (d)
   DA  6 months with option to extend for an unspecified period

5. (e)
   Settlement   30 day after Development Approval

12. [12]
    The plaintiff forwarded those proposed contracts to the defendants with a covering letter.^[22]  Thereafter, the plaintiff sent a letter dated 4 February 2005 ^[23] which read:

It appears that negotiations with Habitare are over.

Rob has mentioned to me that he has a huge amount of enquiry and this is cause for great optimism.  In the something like 8 months I have been associated with the properties, I would have received between 150 and 200 enquiries.

Other than Scott Allen and Habitare, only one other was prepared to pay over a million and that was at tender.  That company has since reduced their offer to $950,000 each.

Despite Council saying that Development Approval takes 6 months there is not one developer that I have spoken to that says this is a reality.

Because of our bad experience with Scott Allen you both feel that people are trying to take advantage of you.  This is not so.  The Habitare Group is a respected development company.  They make their money by building and turning over developments.  It is not in their interest to deliberately delay development approval or settlement. 

The time for development approval is something the developer has not control over.  If the Council takes longer than 6 months you want to penalize the developer.  This is not reasonable.

The one thing for sure and certain is that no one is going to pay you $1 million or more unless they can get development approval.  The offer I have obtained of $1.25 million each subject to development approval is in my opinion a super offer.

I have enclosed the accounts for the advertising as per our agreement you were to pay if I didn’t sell the property.  Unless you wish to revisit the Habitare offer, I do not wish to continue on with the selling of the properties.

I have appreciated the opportunity of marketing the properties and wish you good luck with it in the future.

13. [13]
    Mr Robert Anderson gave evidence that “things got difficult” ^[24] when he received the letter of 4 February 2005 from the plaintiff.^[25]  The defendants contend that the letter of 4 February was a termination of the agency and that the plaintiff could no longer seek his commission.  The plaintiff had hoped that Ms Dixon would contact the defendants’ solicitor, Mr Delaney, to try to resolve the impasse.  It was after receiving no response that the plaintiff wrote the letter of 4 February.^[26]  The plaintiff accepts that it was through the efforts of Mr Delaney that the problem with the development period was resolved by offering the $15,000 by way of a default amount in the event that an extension was sought by the purchaser.^[27]  The plaintiff was of the view that the purchaser would not get a better offer.^[28]  It would be a fair inference given the letter of 4 February 2005 and the plaintiff’s evidence, that he had given up on progressing the matter.  The plaintiff was in effect saying that he did not want to act any more unless the defendants “revisited the Habitare offer”.  That offer was not suitable to the defendants for the reasons discussed.  In any event, the right to any commission would survive the expiration of the appointment.^[29]  Any discharge does not affect rights which have been acquired.  Any services relevant to the appointment had been completed.  The question remains as to whether the plaintiff was the effective cause of the subsequent sale. 

Appointment of new agent

14. [14]
    The defendants appointed a new agent on 8 February 2005.^[30]  The price was listed as $1,400,000.  The agent, Shaun Nolan of Ray White, Bracken Ridge, swore an affidavit saying that he had approached the second defendant about her land on behalf of Denari Earthmoving in early February 2005.  She indicated to him that she would require the first defendant’s land to be part of any sale.  Mr Nolan submitted an offer on behalf of Denari Earthmoving and it was rejected.  He had obtained an exclusive agency agreement with the defendants. Mr Nolan then approached Mr Shane O'Mara from Habitare Developments as to his interest in the properties.  Mr Nolan stated ^[31] that he was aware from the signs on the respective properties that they had been listed with the plaintiff.  The plaintiff had been dealing with Paul Jones, a consultant with Habitare Developments.  According to Mr Shane O'Mara, Mr Jones was responsible to Peter O'Mara.  The contract involving Eight March Pty Ltd was drawn up by their solicitor, Ms Dixon.  She had of course drawn up the earlier contracts.  The proposed contracts were in the name of Eight March Pty Ltd which was another company owned by Habitare Developments.  The price of $1.3M was offered.  Ms Dixon, a solicitor, gave evidence that when she was handed the details for a contract, she would choose a company at will.  There were no instructions given as to which company was chosen in the present case.  I find that it was not a question of choosing another company because of the previous contract involving Chateau Carlotta Pty Ltd.  She did remember the previous contract and used similar clauses with the changes inserted as she was instructed.^[32]  Her evidence was not really challenged.

15. [15]
    Mr Shane O'Mara was made aware of the earlier contract by Ms Dixon.^[33] He was satisfied that Mr Nolan had an appointment to act.^[34]  The condition concerning the $15,000 default amount was put forward by the defendants’ solicitor, Mr Delaney.  It was a measure which met the requirements of the defendants to ensure the bona fides of the purchaser in seeking development approval in a timely way.  In fact it took some 14 months but that is not particularly relevant to the issues in the case.  Any delays still allowed the second defendant some 60 days after settlement to occupy her home.  After some negotiations, the final contracts dated 24 February 2005 were signed.^[35]  Both defendants denied that they discussed the previous negotiations with their new agent.^[36]  There is no reason to doubt their evidence.  It is consistent with the affidavit evidence provided by Mr Nolan.  It is of some assistance to compare the initial proposed contracts with Eight March Pty Ltd and the contracts which were signed:

16. [16]
    When the plaintiff learned of these new moves to sell, he offered to sell as agent in conjunction.^[37] The efforts of the plaintiff had not come to fruition.  A stalemate was reached. The defendants, Mr Robert Anderson and Mrs Griffiths gave evidence.  They wanted some certainty in relation to the development approval.  It was the creativity of Mr Delaney which seem to get over the impasse.  The forfeiture of some $15,000 if an extension was required gave them that assurance of greater certainty.  Otherwise, I find the contracts would not have gone ahead.  The extra $50,000.00 in the purchase price was also significant. I accept the evidence of the defendants in that regard.  They were cross examined on the issue.  It was not a question of merely changing agents.  They were impressed with the efforts and professionalism of Mr Nolan.  He provided the expertise together with Mr Delaney to convince the defendants that the contracts should be signed with the “sweeteners” included.

Defects in the Form 22a

Missing pages 7 and 8 in relation to first defendant’s appointment of the plaintiff

17. [17]
    The defendants contend ^[38] that the plaintiff has failed to comply with the appropriate form which s 134 requires.  The plaintiff does not accept that the forms were incomplete.  The plaintiff gave evidence that he followed his usual practice and sent all of the forms.  The evidence in that respect is not satisfactory and he does not have an independent recollection of the event.  Both defendants received defective forms with missing pages.  Unless the appointment is in the approved form, it is ineffective from the date it is purported to be made.^[39]  That form is to be found in the gazette.^[40]  The plaintiff’s case on this point is that the missing pages do not form part of the form under the PAMD Act.  The missing pages are part of the REIQ publication.  Therefore, it is argued, the statutory prohibition does not apply.  Section 140(1) restricts recovery of any reward unless the agent is properly appointed.  In fact, under s 140(2), it is an offence to sue unless subsection 1 is complied with.

18. [18]
    When one looks at the Endnotes to the PAMD Act, Part 8, there is a reference to the relevant gazette for the appropriate form.^[41]  A perusal of the gazette refers to the website of the Office of Fair Trading for the form.  The form consists of four pages.  Therefore, any missing pages which are related to REIQ additions do not form part of the statutory requirements. Clause 6.2 of the form under ‘When Payable” refers to clause 2.1 of the terms and conditions provided by the REIQ. That clause is on page 8, which was missing. On the facts, in this case there was no disadvantage pointed to because of the omission. There was not strict compliance, but there was substantial compliance with the requirements of the form as required by the gazette.^[42]  Therefore, the defence arguments on this point are rejected. 

Incomplete form: missing information

19. [19]
    The defendants contend that as certain information was not provided for in clause 4, then the plaintiff is not entitled to sue.  It is conceded by the plaintiff ^[43] that unless there is compliance with s 134, a person has not been properly appointed.    The critical question is whether the appointments were “in the approved form”.  It is argued that section 49(1) of the Acts Interpretation Act 1954 states that where a form is prescribed under an Act, “strict compliance is not necessary and substantial compliance is sufficient”. Reference was made to the decision of Rose v Ken Guy Real Estate Pty Ltd.^[44]  In that case, there was a failure to state a listing or reserve price.  His honour found substantial compliance.  It should be noted that clause 4.1 provided “for sale by way of private treaty or negotiation”.  That adds little to the present case.

20. [20]
    In the present case, clause 4.1 required the nature of the service to be stipulated.  Clause 4.3 required the agent to nominate that it was a “single or continuing appointment”.  In relation to the latter, clause 5.1 had nominated that it was an “exclusive agency” during a certain period and 5.2 nominated the appointment to be an “open listing until sold”.  In relation to clause 4.1, all but one of the particulars required as set out in the bracket to the clause did not seem to be applicable or necessary to be detailed.  There is reference to a conjunction sale.  However, clause B on p 5 of the form was ticked to give the right to do a conjunction sale.  To that extent, the case of Active Property Marketing Services (Aust) Pty Ltd v Joelco Pty Ltd and Anor  ^[45] can be distinguished.  In that case there was a complete failure to nominate the services to be provided pursuant to clause 4.1.  It is open to find that there was substantial compliance with s 134 notwithstanding the omissions in clause 4.

Was the plaintiff the effective cause of the sale?

21. [21]
    The inquiry to be made in this case has been defined in L J Hooker Ltd v W J Adams Estates Pty Ltd.^[46]  The first question is what is the event upon which the agent acquires a right to commission.  This requires a proper construction of the appointment.  The second question is whether the transaction which has occurred was brought about as a result of the plaintiff’s agency.^[47]  The plaintiff contends that he was the effective cause of the sale.  Clause 2.1 of the REIQ terms of appointment provided:

2. Entitlement to Commission

The Client agrees to pay the Agent commission as specified in the Appointment if a Contract of Sale of the Property is entered into with a buyer, whether within the Term or after the Term, where the Relevant Person is the effective cause of the sale within the Term provided that:

1. (1)
   the Contract of Sale of the Property is completed…

For the purposes of clause 2.1 a Relevant Person is, where the Appointment is for:

1. (1)
   an Exclusive Agency, or any person (including the Client); or

2. (2)
   a Sole Agency, or any other person other than the Client; or

3. (3)
   an Open Listing, the Agent only.

At the time of the subject contract with Eight March Pty Ltd, the sole agency had  ended and the plaintiff had an open listing.  The contract settled in April 2006.

22. [22]
    The plaintiff’s counsel referred to the decision of Moneywood Pty Limited v Salamon Nominees Pty Limited.^[48]  It was held in that case that the agent was entitled to commission on the price for the lesser area sold since the agent had been the effective cause of the sale of the land as the terms of the appointment provided for the agent to act in respect of the sale of any part of the land.  In that case, it was clear that the agent was the effective cause of the sale of the lesser area which was about two thirds of the total area originally contracted for.  Part of the land was sold to the council to form a “koala corridor” as part of a rezoning requirement.  The plaintiff contends that one looks at the substance of the matter and that is that the terms were negotiated by the plaintiff over several months and that with minor differences added by a new agent.  The defendants’ counsel submitted the following factors prevented the plaintiff from being the effective cause of the sale:

1. (a)
   The plaintiff did not introduce Eight March to the defendants

In reply to this the plaintiff says that Eight March Pty Ltd and Chateau Carlotta Pty Ltd, the original proposed purchaser, shared common ownership and common directors.  They were certainly part of the Habitare Development group. Ms Dixon chose a different company as each contract was submitted, probably for commercial convenience.

2. (b)
   Eight March was an entity separate from Chateau Carlotta irrespective of the fact that Eight March had the same director, secretary and shareholder as Chateau Carlotta.

The plaintiff says that Ms Dixon acted for each company.

3. (c)
   The plaintiff did not obtain an offer from Chateau Carlotta or Eight March on terms suitable to the defendants.

That is a correct statement.  The plaintiff says that there nothing to suggest that the plaintiff could not have negotiated the outstanding issues including the open ended development approval time.  Unfortunately, he did not do so.  In fact, the main issue seemed to be resolved by Mr Delaney.  The 60 day tenancy for the second defendant was a “sweetener” but as pointed out by the plaintiff in the written submissions ^[49] there is no direct evidence that it was a “deal breaker”.  However, the second defendant emphasised in her evidence that it was her home and that she wanted some certainty.  One can infer that she place some importance on knowing where she was staying even after settlement.

4. (d)
   The defendants were not prepared to allow purchasers to have more than 6 months to obtain development approval in the absence of some concession in relation to any extension of time beyond 6 months.

This was a crucial stumbling block for the sale going ahead. The plaintiff failed to get the necessary concessions.

5. (e)
   The defendants were only prepared to execute the contracts with Eight March after the addition of special condition 10 to each of the contracts with Eight March

The plaintiff contends that the deals were so similar that subsequent negotiations did not bring any massive benefit to the issues.  The additional $50,000.00 on each lot was some 4% over and above the original offer of $1,250,000.00 obtained by the plaintiff.  It could not be said that the extra $50,000.00 and the $15,000.00 for the right to extend were not significant.  It certainly appealed to the defendants.

6. (f)
   The addition of special condition 10 to each of the contracts with Eight March was negotiated by the defendants’ solicitors, not the plaintiff.

This is not disputed. It is not to the point that the plaintiff was capable of putting up such a clause.

7. (g)
   The addition of special condition 10 (sic) increased the likelihood of the purchaser completing the deal.

This was certainly the perception of the defendants.

8. (h)
   Mrs Griffiths was granted a tenancy for a period of 60 days after settlement of her contract.

This has been discussed.

9. (i)
   The plaintiff effectively admitted in his letter dated 22 December 2004 to Mr Delaney that he was unable to bring the parties to an agreement and that he needed Mr Delaney’s expertise. While the plaintiff was persistent in pursuing Ms Dixon in relation to resolution of the terms of the contract, he did nothing proactive in relation to resolution of the terms of the contract. He agreed under cross-examination that he did not suggest the changes to the terms of the contract that ultimately led to it being accepted by the defendants (sic).  There can be no suggestion of a “springboard” effect from the work done by the plaintiff because:

1. (i)
   Ms Dixon may have prepared the contract without reference to the terms of the old contract (she could not recollect under cross examination whether she copied the Chateau Carlotta terms).

1. (ii)
   In any event the terms used by the Harbitare group are fairly standardised and purchases are made within set guideline.

1. (iii)
   The terms were agreed anew between the defendants and Eight March Pty Ltd with input only from Mr Nolan and Mr O'Mara.

It is open to accept the latter submission.  The evidence of the defendants, Mr O'Mara and Mr Nolan in his affidavit all support the finding that the earlier contracts involving Chateau Carlotta were not discussed and that the contract with Eight March was a new deal.  Ms Dixon accepted that she was aware of the earlier contract.  There was some discussion about the agency appointment of Mr Nolan.  Once it was confirmed Mr O'Mara did not see a problem.  There was no evidence to support a theory that the parties had conspired to exclude the plaintiff from his commission.  No such inference can be drawn from the evidence.  In fact the plaintiff wanted to be an agent in conjunction when he got word of the new negotiations.  This case does not revolve around a “springboard” affect.  It is whether the plaintiff was an effective cause of the sale.

10. (j)
    While the defendants agreed that they were prepared to accept $1.25m from Chateau Carlotta they were getting a better deal from Eight March Pty Ltd, a company they believed not to be associated (sic) with Chateau Carlotta.

The plaintiff contends that Mr Robert Anderson was caught out by his initial denial that the Habitare group was involved.  In fact there was reference to that group in a letter.  What  I find he meant to convey was that he was unaware that Eight March was involved with Chateau Carlotta.  They were all part of the Habitare Development group. Any such knowledge in any event is not determinative of the main issue of causation.

11. (k)
    Even if it may have been possible for the plaintiff to bring about an agreement between the defendants and Chateau Carlotta (or any other company in the “Habitare Group” for that matter), he did not take any proactive steps to ensure that this would occur.  Instead, he got annoyed with the defendants and terminated his appointment.

It is unnecessary to decide whether the plaintiff terminated his appointment.  He left it open if the defendants wished to “revisit the Habitare offer”.  What is clear is that any rights which accrued up until the letter of 4 February 2005 could be enforced by the plaintiff.

23. [23]
    The factual issues have been clarified.  It becomes a question of applying the correct legal principles to those facts.  The decision of Emmons Gambier Pty Ltd  ^[50] is of some assistance in applying those principles.  The agent in that case was entitled to a commission if it introduced the purchaser or a purchaser “associated with or related to” a person so introduced.  The agent purported to introduce a hotel chain to the vendor who wanted $30m.  The offer was $25m.  The vendor sold to another group which was closely associated to the hotel chain for $29.7m.  At first instance the trial judge held that the agent was an effective cause of the sale but on appeal that finding was reversed.  The basis for the latter decision was that the effective cause of the sale was a second agent. The second agent had obtained an increase in price of some $4.7m. The original agent, Mr Wheeler, had given up on his efforts.  The vendor insisted on $30m.  The problem was the price.  The second agent persisted in having the purchaser increase the price finally to $29.7m which was accepted.

24. [24]
    For the agent to succeed, the court found that he had to establish a causal connection between his efforts and the completion of the transaction.^[51]  That is, that the agent was the effective cause of the sale or that the sale was brought about by the agent’s instrumentality ^[52] In Emmons Mount Gambier Pty Ltd the agent failed to discharge the onus of proof in that regard.  A similar situation exists in the present case.  For all practical purposes, the plaintiff had given up on his efforts.   He had employed the help of the solicitors involved to no avail. Thereafter, there were in the circumstances of this case, significant amendments to the contract.  A second agent was involved and Mr Delaney saw a way through the impasse with the introduction of special clause 10.  The increase in price of residential properties of $50,000.00 per lot is not insignificant.  The efforts of the plaintiff did not continue “to influence the purchaser in its eventual decision to buy.”^[53]  It could not be said that the initial efforts of the plaintiff continued to influence the Eight March Pty Ltd to purchase the properties of the defendants.  The plaintiff had no contact with Mr Shane O'Mara who carried out feasibility studies before making any offers.  The plaintiff had dealings with Mr Jones who was a consultant responsible to another director, Mr Peter O'Mara.  There is no evidence that Mr Shane O'Mara and Mr Peter O'Mara worked together building upon the efforts of the plaintiff.  The plaintiff has failed to discharge the onus of proof that he was the effective cause of the sale to Eight March Pty Ltd.

25. [25]
    If the only difference was the name of the company, the decision of Ross McCartin Realty v Chard Holdings Pty Ltd (No 2) ^[54] may have been relevant.  In that case, after the parties received advice on minimising their exposure to stamp duty, the shares in the vendor company were transferred to a shelf company and the purchasers obtained the shares on settlement.  The parties were the same in effect.  The agent recovered commission on the sale as it was the effective cause of the sale, having introduced the parties.  The change in the manner of the transfer did not impinge on it being the effective cause of the sale.  The present case can be distinguished.

Orders

1. The plaintiff’s action is dismissed.

2. It is ordered that the plaintiff do pay the costs of the first and second defendant of  the action, including reserved cost if any, to be assessed.

3. Liberty to apply on costs.