Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd
[2024] QDC 219
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Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd[2024] QDC 219
Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd[2024] QDC 219
DISTRICT COURT OF QUEENSLAND
CITATION: | Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd [2024] QDC 219 |
PARTIES: | PODIUM PROJECT MARKETING PTY LTD ACN 637 089 760 (Plaintiff) v B GLOBAL (AUST) PTY LTD ACN 664 677 136 (Defendant) |
FILE NO/S: | BD 1087/2022 |
DIVISION: | Civil |
DELIVERED ON: | 12 December 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 8 August 2024 |
JUDGE: | Barlow KC, DCJ |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – EFFECTIVE CAUSE OF SALE – the plaintiff was appointed as a property agent for the sale of specified lots in a residential estate development by the defendant – the plaintiff engaged sub-agents to sell properties to customers and received commission under the agency agreement – whether the plaintiff was the effective cause of the sales where it was not the only cause of sales – whether there was a causal link between the plaintiff’s actions and the sales of the lots PROFESSIONS AND TRADES – AUCTIONEERS AND AGENTS – REMUNERATION – RECOVERY BY UNLICENSED AGENT – the plaintiff appointed sub-agents to assist it in locating buyers for lots – the sub-agents employed or sub-contracted unregistered real estate salespersons – whether agent entitled to remuneration for sales introduced by unregistered real estate salespersons – whether the plaintiff is prohibited from receiving or retaining commissions by reason of section 89 of the Property Occupations Act 2014 (Qld) Property Occupations Act 2014 (Qld) ss 55, 89, 97, 98, 115, 120, 121, 128, 151 Berben v Hedditch (1982) NSW ConvR 55-081 Burney v The London Mews Co Ltd [2003] EWCA Civ 766 Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133 Gnych v Polish Club Ltd (2015) 255 CLR 414 Jones v Knobel & David Property Services Pty Ltd [2008] QCA 105 LJ Hooker Ltd v Adams Estates Pty Ltd (1977) 138 CLR 52 Moneywood Pty Ltd v Salomon Nominees Pty Ltd (2001) 202 CLR 351 Outerbridge v Hall (2020) 102 NSWLR 921 Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 |
COUNSEL: | G Beacham KC and J Byrnes for the plaintiff L Copley and R McDermott for the defendant |
SOLICITORS: | Clayton Utz for the plaintiff Astills Lawyers for the defendant |
Contents
Summary 1
The facts 1
Podium’s appointments and role 1
Alliancecorp 2
Freedom 3
PMIQ 4
Sales of lots, commissions claimed 4
The issues 4
Real estate salespersons 5
Was Podium the effective cause of the sales? 6
Legal analysis 6
Podium’s and others’ involvement in sales 7
Submissions on those activities 8
The activities of the sub-agents 9
Did B Global authorise or acquiesce in the appointment of sub-agents? 10
Was authorisation conditional? 11
Was Podium the effective cause of sale? 12
Does the Act, s 89, preclude recovery or retention of commissions? 14
Conclusions 18
Annexure 19
Summary
- [1]The plaintiff (Podium) is a real estate agent. It sues for the payment of commissions that it alleges are owed to it by the defendant (B Global), a property developer, on the entry into contracts for the sale of residential lots in a development at North Ipswich called “The Junction”. B Global denies that it is liable to pay the commissions and it counterclaims for the return of commissions that it has already paid to Podium, on two grounds: first, that Podium was not the effective cause of the sales; secondly, that Podium is not entitled to claim, or to retain, commissions on sales because the individual salespersons who located buyers and were the effective causes of the sales were not themselves licensed real estate agents, nor employees of such an agent who were registered as real estate salespersons.
- [2]For the reasons below, I find that Podium succeeds on its claim and B Global fails on its counterclaim.
- [3]Therefore, I shall give judgment for Podium in the sum claimed of $253,000 plus interest and costs. I shall hear from the parties as to interest and whether any special order for costs should be made.
The facts
- [4]The facts are not contentious. Each party filed affidavits of witnesses, which were admitted into evidence as parts of the trial bundle (exhibit 1) and none of the witnesses was cross-examined.
Podium’s appointments and role
- [5]I have briefly described above each party’s role. It is relevant to expand a little on Podium’s role. Podium and its director, Richard Mulligan, each has (and had at all relevant times) a real estate agent’s licence under the Property Occupations Act 2014. Mr Mulligan described Podium as a real estate “aggregator” that:
partners with builders and developers of large residential projects which are aiming to sell the development off-the-plan and then provides those available lots – or “stock” – to real estate investment businesses for sale to customers. The usual process is as follows:
- Podium is appointed as the agent to sell the properties;
- Podium engages various entities to act as sub-agents, who then on-sell the properties to their customers; and
- Podium receives the commission under the terms of the agency agreement, and then pays a fee to the sub-agent for the sale of the relevant lot.
- [6]B Global appointed Podium as its non-exclusive agent for the sale of a total of 60 lots in The Junction development, under three separate but (apart from the lots identified in each) identical contracts. Each contract was in the form of Form 6 under the relevant regulations.[1] Although each contract did not specify the service Podium was to provide, it is not disputed that it was the service of finding buyers for the properties. Under each contract, Podium’s appointment was on a continuing basis, starting on 10 May 2021 and the lots were specified in a list attached to the contract. The commission for the sale of each lot was $40,000 plus GST, 50% of which was payable when a sale contract became unconditional and 50% at settlement.
- [7]Each appointment was on the basis of an open listing of the lots. Relevantly, this was specified as meaning:
When you must pay the agent
- The agent is entitled to the agreed commission if the agent is the effective cause of sale.
When you don’t have to pay the agent
- If the client sells the property privately and the agent is not the effective cause of sale i.e.: purchaser did not contact the agent, did not attend open house inspections etc.
- [8]The first and second appointments did not provide specifically for the appointment by Podium of sub-agents to assist in locating buyers. However, the third appointment, dated 19 July 2021 and for the sale of 30 lots, had this additional clause:
The Licensee [Podium] is approved to use and appoint Sub Agents as required. All Payments are made from the Seller/Client. And the Licensee is approved by the Client to pay its Sub Agents. The Client will pay settlement commission out of settlement proceeds if directed by the Licensee.
- [9]Notwithstanding the absence of such a clause in the first and second appointments, B Global admitted that, by April 2021, or by June 2021, it knew that Podium would use sub-agents to locate buyers of lots in this development and it did not object to that occurring.[2] Counsel for Podium submitted that, as the admission was of the entire allegation, the court should take it as admitting the knowledge as at the earlier date. Counsel for B Global did not dispute that proposition and it appears to be correct, so I find that to be the case. That is, B Global knew of and did not object to Podium’s intention to appoint sub-agents before B Global first appointed Podium as its agent.
Alliancecorp
- [10]On 31 May 2021, Podium and Alliancecorp Investments Pty Ltd entered into a contract entitled “Business 2 Business Property Sales Partner Appointment.” Alliancecorp and its director, Jason Paetow, each held a real estate agent’s licence. Mr Paetow described Alliancecorp’s business:
Its core business is as a project marketer and a buyer’s advocate in the purchase of real estate.
In order to assist investors in acquiring real estate, Alliancecorp may enter into an arrangement with an agent, builder, aggregator, and project marketer or seller of real estate (Project Marketer). Such arrangement generally enables:
- Alliancecorp to offer its members a property that it has identified as suitable to a particular member; and
- The Project Marketer to have a channel to market or introduce a particular piece of real estate to an investor.
- [11]The Alliancecorp B2B agreement relevantly provides that Podium appoints Alliancecorp as a Property Sales Partner for the marketing and sale of various property sourced by Podium. It sets out in detail the respective roles and responsibilities of Alliancecorp and Podium and attaches a detailed “Sales Procedure and Process” that Alliancecorp is required to “observe[..] and follow[..] … in fulfilling its tasks and obligations.”[3]
- [12]As for remuneration, the agreement provides that:
Subject to the terms of this Agreement, PPM hereby agrees to pay to the B2B Partner a Referral Fee ("Fee") which is outlined in Annexure "A" - Total fees payable to Property Sales Partner. Any updates to the total fees payable to Property Sales Partner will be forwarded to the B2B Partner periodically by the Account Manager via email. PPM reserves the right to amend fees payable at anytime.
Commission is payable: Payment will be made within 14 days of PPM receiving payment from the seller and the B2B Partner providing a valid tax invoice.
The fee payable for each lot sold is specified in the agreement but need not be stated in these reasons.
- [13]The agreement also provides, under the heading “Confidentiality”:
It is agreed by the B2B Partner that it will not introduce a Buyery [sic] directly to the Seller and/or Builder or its sales agent in relation to any Property or development which was sourced by PPM or in relation to which PPM is involved with marketing in any way. Any communication or correspondence in this regard with a Seller and/or Builder must be made via PPM. The B2B Partner must never approach any of PPM's Developers, Builders or other Partners directly. Podium Project Marketing must never be circumvented in any way.
It is agreed that any Buyer introduced to PPM by the B2B Partner will exclusively belong to the B2B Partner and PPM undertakes not to directly engage with or market to that Buyer at any time without the express written permission of the B2B Partner.
Freedom
- [14]Podium had had a relationship, since 2016, with another company, Juru & Pan Wealth Pty Ltd, then trading as “Freedom Property Investors.” That relationship was governed by a B2B Property Sales Partner Appointment agreement in substantially similar terms to the later Alliancecorp agreement. The company’s name is now Freedom Wealth Creation Pty Ltd (Freedom Wealth) and its sole director is Xi Pan, more commonly known as Lianna Pan.
- [15]Another company apparently associated with Freedom Wealth is Freedom Investors Pty Ltd (Freedom). Freedom’s managing director is Lianna Pan and its Head of Property Acquisitions was John Tindall. Freedom and Ms Pan both have a real estate agent’s licence, although Freedom has held its licence only since 21 August 2021.
- [16]After Podium was first appointed by B Global as its agent for 21 lots at The Junction, Mr Mulligan sent information about the project to Ms Pan and Mr Tindall. On 1 September 2021, Podium appointed Freedom as its sub-agent for the sale of unspecified properties in a number of projects, including The Junction. The agreement is entitled “Sub agent Appointment” but its terms are mostly materially identical to both the Freedom Wealth B2B agreement and the Alliancecorp agreement, simply substituting “Sub Agent” for “B2B Partner” or “Property Sales Partner” in most places. The relevant differences between the documents are:
- the roles and responsibilities of the sub-agent insert an additional paragraph providing that the sub-agent:
must hold a valid Real Estate Licence under the Queensland Property Occupations Act 2014; and
- the first paragraph of the remuneration clause differs by adding a second sentence that provides that:
The Sub agent acknowledges that the Referral Fee is paid by the seller and PPM is facilitating the payment to the Sub Agent on behalf of the seller.[4]
The fee payable on sales is the same as under the Alliancecorp agreement.
PMIQ
- [17]Another company involved in the sales process was Project Marketing and Investments Qld Pty Ltd (PMIQ). Podium pleads (and B Global admits) that B Global engaged PMIQ as its agent for the purpose of marketing The Junction.
- [18]During the relevant period, while communicating directly with B Global about its appointments as agents for particular lots, Podium also communicated with PMIQ about sales of lots. In essence, PMIQ liaised with B Global and its solicitors for the approval of buyers’ offers and the preparation of contracts and liaised with Podium to receive offers and to provide contracts for signature by the buyers and then by B Global.
Sales of lots, commissions claimed
- [19]Between July and November 2021, Alliancecorp and Freedom identified buyers of a total of 33 lots that resulted in B Global entering into sales contracts for those lots. Of those lots, 12 are now the subject of Podium’s claim for commissions and the remaining 21 are the subject of B Global’s counterclaim for recovery of the commissions that it has paid to Podium (or as Podium directed). (The amounts claimed by each party are for 50% of the total commission payable, as the contracts had not yet settled when this proceeding began.) Podium claims a total of $253,000 and B Global counterclaims for a total of $462,000.[5]
The issues
- [20]The parties and their lawyers have cooperated extensively in conducting this proceeding as efficiently as possible. Their conduct has been a commendable example of compliance with rule 5 and with the manner in which cases on the Commercial List (such as this) ought be undertaken. To this end, they agreed on the issues requiring determination by the court. It suffices to set out that list, which I shall adopt (with variations) in structuring my reasons.
Effective cause of sale
- As a matter of law, what is required for a party to be the effective cause of sale?[6]
- Whether Podium was the effective cause of sale irrespective of the authorisation, ratification or acquiescence of the sub-agents involved in the sale.[7]
- Whether B Global authorised, ratified or acquiesced in Podium’s use of sub-agents.[8]
- Whether the authorisation of the use of sub-agents was subject to the sub-agents or their salespersons being lawfully entitled to sell property and claim commissions in Queensland.[9]
- Whether Podium was the effective cause of sale, having regard to the answers to the above issues.
Property Occupations Act 2014
- Whether, under ss 55 and 89 of the Act, Podium is not entitled to claim the commissions because of the lack of registration or licensing of individual salespersons.[10]
- Whether Podium is required to disgorge commissions paid by the operation of the POA (sections 55 and 89) by reason of the lack of registration or licensing of individual salespersons.
Real estate salespersons
- [21]Before addressing the issues, it is necessary to record the individual salespersons who located buyers for the relevant lots and their status as real estate agents or real estate salespersons.
- [22]Each of Alliancecorp and Freedom engaged individuals who actually found and liaised with buyers of lots in The Junction. It does not appear to be disputed (and there is evidence concerning some) that those individuals were authorised, respectively, by Alliancecorp and Freedom, to operate under the company’s real estate agent’s licence in finding buyers of real estate.
- [23]Alliancecorp’s salesperson was Nick Koumourou. Mr Paetow’s evidence was that he was engaged by Alliancecorp (in what capacity is not stated) and was authorised to act for Alliancecorp in respect of The Junction. Mr Koumourou introduced the buyer of one of the lots for which Podium claims commission[11] and the buyers of three of the lots for which B Global claims to recover the commission previously paid by it.[12]
- [24]Freedom’s salespersons for the remaining 11 lots for which Podium claims commission were Tim Heggen (3 lots), Nakul Sayal (1 lot), Andrew Watson (5 lots) and Nelson Oillataguerre (2 lots).[13] Ms Pan deposed that each of them was engaged by Freedom and was authorised “to use” Freedom’s and Ms Pan’s real estate agent’s licences in respect of their activities concerning The Junction. Freedom’s salespersons for the 21 lots the subjects of the counterclaim were variously Mr Heggen, Mr Watson, Mr Oillataguerre, Patrick Van Orsouw, Tehanni Crisara, Matthew Gafa and Samantha Utopo.[14] There is no evidence, but the parties appear to have assumed, as I shall, that the last four were authorised similarly “to use” Freedom’s and Ms Pan’s licences.
- [25]None of the salespersons referred to above had a real estate agent’s licence,[15] nor was any of them registered as a real estate salesperson. These facts are relied on by B Global in its defence and counterclaim for contending that Podium is not entitled to commissions on the relevant sales because the individual salespersons were not either licensed real estate agents or registered real estate salespersons.
Was Podium the effective cause of the sales?
- [26]Each appointment of Podium by B Global provides expressly that Podium is entitled to the agreed commission if it is the effective cause of sale. As the authorities to which I refer below demonstrate, an agent may be “the” effective cause of sale whether it is the sole cause of the sale or is “an” effective cause of sale, among other causes.[16]
- [27]Podium contends that it was the effective cause of each sale because it brought about the sale of the properties by its own work and with the assistance of the sub-agents which it had engaged. B Global contends that Podium was not the effective cause of the sales because the relevant actions of finding and securing buyers were undertaken by the individuals engaged by the sub-agents, not Podium, and none of the steps taken by Podium could be described as having influenced a buyer in the decision to buy a lot. It also contends that those individuals were neither licensed real estate agents nor registered real estate salespersons, therefore they were not authorised by law to undertake the tasks they did and therefore nothing they did could be considered to constitute contributions to the sales.
Legal analysis
- [28]Both parties referred the court to past decisions in which courts have considered whether an agent was the effective cause of sale.
- [29]
The phrase that is time honoured in this context is "effective cause" or "efficient cause", that the agent was an effective cause or the effective cause. … The inquiry is a factual one and it probably does not matter in the long run whether the definite or indefinite pronoun is used before the words "effective cause". … In almost any factual situation a result will have more than one cause …. "Effective cause" means more than simply "cause". The inquiry is whether the actions of the agent really brought about the relation of buyer and seller and it is seldom conclusive that there were other events which could each be described as a cause of the ensuing sale. The factual inquiry is whether a sale is really brought about by the act of the agent.
- [30]
The agent must of course show the necessary causal relationship between the steps taken by him and the subsequent purchase by the purchaser.
- [31]
It is true that an agent to procure a purchaser of property in stated terms may earn the commission payable to him in various ways. But the commission is not fully earned unless there is a sale which has resulted wholly or partially from the efforts of the agent. The most common way of performing the agent’s task is to introduce to the principal a person who becomes the purchaser under a binding contract of sale.
- [32]Whether an agent was the effective cause of a sale is a question of fact[21] and requires a consideration of the substance of the transaction, not the legal form.[22] A contract between principal and real estate agent is not a special form of contract: it is governed by the usual law governing contracts and agency.[23]
- [33]Where more than one agent has had an involvement with the potential sale of a property and a sale eventuates, whether either or both was an effective cause of the sale cannot be determined simply by comparing the amount of work done by each agent toward bringing about the ultimate sale. The work done by each agent must be considered in the process of evaluating all of the circumstances which may have had some causal relationship with the sale.[24]
- [34]Therefore, in order to determine whether Podium was the effective cause of the sales, it is necessary to consider what Podium, its sub-agents and the salespersons did in the process of securing sales.
Podium’s and others’ involvement in sales
- [35]It will be recalled that, in each appointment of Alliancecorp and Freedom as Podium’s sub-agent, a schedule set out a detailed sales procedure and process with which the sub-agents were required to comply in obtaining buyers to whom B Global might agree to sell on the terms proposed. The first step was for the sub-agent to complete and submit a sales advice/expression of interest form on the Podium website, together with evidence of payment of the initial deposit.
- [36]Podium’s director, Richard Mulligan, gave evidence about the steps that it took in the case of each sale, after receiving an expression of interest form from a buyer. He said:[25]
Podium:
- confirmed receipt of the expressions of interest;
- provided [B Global’s] agent, [PMIQ], with a “New Sale Approval”, which:
- enclosed the expression of interest form;
- outlined the terms of the sale (including commissions payable, the terms of payment, and the buyer’s details);
- enclosed a deposit receipt; and
- sought approval for the sale from [B Global].
- provided buyer’s identification documents to PMIQ (which was a requirement of [B Global] from around 19 July 2021);
- upon receipt of the approval of sale and the contracts which were uploaded by [B Global] to a shared folder, reviewed the contracts for the above lots to confirm all matters were correct (including, for example, the lot number, the sale price, the terms of sale, the settlement date, and that the seller’s agent was recorded as Podium), prepared a Form 8 (Disclosure to Potential Buyer), and sent them to Freedom or Alliancecorp (as the case may be) for the buyer to execute;
- upon receipt of the documents signed by the buyer from Freedom or Alliancecorp, Podium reviewed the documents to ensure that they were properly executed, and then sent them back to PMIQ to arrange execution by [B Global]; and
- upon receipt of the fully executed contract from PMIQ, Podium:
- provided the executed documents to Freedom or Alliancecorp to provide to the buyer; and
- transferred the initial deposit received from the buyer to the seller’s solicitor’s trust account.
- [37]Mr Mulligan exhibited to his affidavit copies of the expression of interest packs submitted for each lot the subject of Podium’s claim. Those packs, which included a form with Freedom’s or Alliancecorp’s name at the top and (in the case of Freedom) its details as the agent, set out such things as the name and address of the buyer and any guarantors, the price offered, whether the offer is made subject to finance and the date for payment of the full deposit. The sub-agent would normally set out any special terms requested in its covering email to Podium. Each Freedom form provided that the initial deposit (of $1,000) was to be paid into Podium’s bank account, while the Alliancecorp forms provided for payment by credit card (not specifying to whom).
- [38]Mr Mulligan also exhibited to his affidavit a copy of the contract of sale for each lot the subject of this proceeding (either in the claim or the counterclaim). In each contract and in the attached disclosure forms (where the seller’s agent was referred to), Podium was identified as the seller’s agent.
Submissions on those activities
- [39]Counsel for Podium submitted that, by the steps taken by Podium, both in engaging Freedom and Alliancecorp as its sub-agents and in liaising with them and B Global (through PMIQ) about individual contracts, as described above, Podium “really brought about the relationship of buyer and seller” and was the effective cause of each sale. Additionally, Freedom’s and Alliancecorp’s actions (by their salespersons) are also attributable to Podium as those companies were Podium’s agents in carrying out the dealings with the buyers (although Podium submits that the court need not make such a finding in order for it to conclude that Podium was the effective cause of the sales).
- [40]Counsel for B Global submitted that none of the tasks performed by Podium could be described as Podium having influenced a buyer in the decision to buy the relevant lot, nor do they speak to a causal link between the buyer and the seller, as is required for an agent to be the effective cause of sale. Furthermore, to the extent that Podium relies on the actions of the salespersons employed by its sub-agents as acts on behalf of Podium that were effective causes of the sales, counsel submitted that, as the salespersons were not registered and were therefore acting illegally, their actions were not authorised activities under the auspices of the real estate agent licences held by Podium or its sub-agents. Therefore, even if attributed to Podium through its subagents, the illegal activities cannot constitute effective causes of sale.
- [41]These submissions lead to the issues of the authorisation and conduct of the sub-agents and their salespersons and whether their activities can properly be attributed to Podium.
The activities of the sub-agents
- [42]Before describing the sub-agents’ activities (and those of their salespersons), it is relevant to set out the Act’s requirements concerning salespersons.
- [43]Under s 151, a person must not act as a real estate salesperson unless the person holds a registration certificate. (It is an offence to do so.) To act as a salesperson includes holding out that the person is a real estate salesperson. A person does not act as a real estate salesperson merely because the person, while performing duties as an employee of a real estate agent at the agent’s place of business, does something of an administrative nature relating to something the real estate agent does as a real estate agent. A “real estate salesperson” is relevantly defined in the Dictionary as meaning the holder of a registration certificate (issued under s 128) that is in force.
- [44]Under s 128, the chief executive may issue a registration certificate to an applicant for such a certificate. A registration certificate authorises the holder to perform any activity that may be performed by the real estate agent who employs the holder (s 115). “Employ” is broadly defined in the Dictionary as including engage on a contract for services or commission, or directly engage as an independent contractor. “Employee” is not defined but, given the definition of “employ”, one might consider that it includes someone engaged as an independent contractor.
- [45]In s 98, the Act distinguishes between employing someone and directly engaging someone as an independent contractor. It is an offence for a real estate agent to employ, as a real estate salesperson, a person the agent knows, or ought to know, does not hold a registration certificate. It is also an offence for a real estate agent to engage directly an independent contractor unless the contractor holds a property agent licence. It seems to me that to “employ” a person, in this section cannot include directly engaging an independent contractor, given the different criteria[26] and consequences of the two subsections.
- [46]This may be relevant to the issues here, although perhaps only as a sidewind, because B Global contends that Podium is not entitled to recover or keep commissions on these sales because the sales were effected, at least in part, by the salespersons, who were neither registered nor licensed and on whose activities Podium at least partly relies as making it the effective cause of the sales. If the salespersons and the sub-agents were committing offences in finding buyers, then their activities constituting the offences and the fact that they were not registered or licensed must logically have the consequence that none of the salespersons, the sub-agents or Podium is entitled to recover or keep any remuneration deriving from the unlawful activities.
- [47]It is clear, on the evidence, that none of the individual salespersons employed or otherwise engaged by Freedom and Alliancecorp was registered as a real estate salesperson under the Act, nor held a property agent’s licence. It also seems clear that, not being registered or licensed, the salespersons committed offences in conducting these activities. What is not clear is whether either sub-agent knew, or ought to have known, that to be the case. It would be surprising if they did not: one would expect an experienced licensed real estate agent to require each salesperson engaged by it to prove that the salesperson was registered by producing the certificate of registration or (in the cases of independent contractors) to prove that the salesperson had a property agent’s licence.
- [48]However, I do not consider it necessary to decide whether the sub-agents themselves committed offences by employing or engaging the salespersons. Indeed, it is not possible to decide that question in the absence of evidence of whether the salespersons were employed or were independent contractors and, if employed, whether the subagents knew, or ought to have known, that the salespersons were not registered or licensed.
- [49]Turning now to the salespersons’ activities, clearly they did perform a number of activities that contributed to the sales. Either the sub-agents or the salespersons located the buyers.[27] The salespersons then dealt with the buyers, assisted the buyers to complete the expressions of interest and to pay the initial deposits, presumably gave the expressions of interest to the sub-agents or themselves uploaded them to Podium’s online site and obtained the buyers’ signatures on the contracts when they were produced. Each of those activities contributed effectively to the sales occurring.
Did B Global authorise or acquiesce in the appointment of sub-agents?
- [50]B Global knew, before its first appointment of Podium as its agent, that Podium intended to use sub-agents to assist it to find buyers and to secure contracts of sale. In the third appointment, B Global expressly authorised Podium to use sub-agents. Although the first and second appointments did not contain such a term, how Podium intended to secure sales was left to it to decide and implement. In the absence of a term prohibiting their use, I consider that it is implied in each of the first two appointments that Podium could use sub-agents to assist it to perform its activities.
- [51]Therefore, Podium was authorised by B Global to use the assistance of sub-agents to locate buyers and secure offers and contracts of sale for lots in The Junction the subject of all three appointments of Podium.
- [52]If I were wrong and no such term is implied, nevertheless B Global clearly acquiesced in the use of sub-agents by Podium. As Podium submitted, the expressions of interest were drawn under the banners of the sub-agents.[28] Also, the salespersons witnessed (or in the case of Alliancecorp, executed by Mr Koumourou under power of attorney) the execution of the contracts by the buyers, although there is no evidence that B Global knew who those witnesses were nor by whom they were employed or engaged.
- [53]The fact that B Global was willing to execute contracts of sale to buyers who had clearly had the assistance of Freedom or Alliancecorp in their expressions of interest results, in my view, in B Global having acquiesced in (if it had not authorised) Podium using sub-agents. Indeed, B Global’s director and sole shareholder, Geoffrey Booth, said that it was Podium’s and B Global’s practice that each contract was witnessed by the relevant salesperson at either Freedom or Alliancecorp.[29] The identity of the subagents was not material to B Global’s acquiescence to their appointment by Podium.
- [54]I find that B Global authorised, impliedly or by acquiescence, the use by Podium of sub-agents to secure contracts for the sale of the lots that were the subject of the first and second appointments of Podium.
Was authorisation conditional?
- [55]B Global contends that, if it authorised or acquiesced in the appointment of subagents, it was subject to an implied condition that the sub-agents or the salespersons engaged or employed by them were lawfully entitled to sell property and to claim commissions. (I take the term “to sell property” to mean to act as a real estate agent or real estate salesperson in the course of negotiating and securing sales of property.)
- [56]Strictly speaking, this issue is broader than the pleaded issue, as B Global pleads that “any authorisation, acquiescence or ratification [of the use of sub-agents] was subject to those subagents being lawfully entitled to sell property and claim commission in Queensland which they were not as none of the subagents were [sic] licensed in Queensland.”[30] However, it is clear from the defence that B Global elides the difference between the sub-agents (Freedom and Alliancecorp) and the salespersons. The sub-agents were in fact licensed real estate agents but the salespersons were not licensed or registered. However, the parties have conducted the trial on the basis of the issue described in [55] above, focussing on the status of the salespersons as a condition of the sub-agents’ appointment and so that is the issue for my consideration.
- [57]One might think that B Global would have an interest in the salespersons who dealt with potential buyers being permitted, under the Act, to act as salespersons by having registration certificates. A seller might consider that this would have a tendency to minimise the possibility of those salespersons engaging in inappropriate practices in order to secure sales, which could lead buyers to seek to cancel contracts based on allegations of false or misleading conduct on the part of the salespersons. In other words, it could be in B Global’s interests to ensure that salespersons who dealt with potential buyers were considered by the relevant authorities to be suitable for registration having regard to the criteria specified in ss 120 and 121 of the Act.
- [58]However, there was no express term in any of the appointments of Podium that salespersons engaged by it or its sub-agents be registered. If it were of concern to B Global, one might have expected it to make it a condition of Podium’s appointment. Furthermore, Mr Booth did not give any evidence that it was important to B Global that salespersons be registered, nor that it checked (or asked Podium to check) that they were registered before any contract was signed.
- [59]That a salesperson who introduced a buyer was not registered would not automatically enable a buyer to cancel a contract of sale. A contract would remain binding on the buyer and seller, even though the salesperson and possibly the real estate agent who employed or engaged the salesperson may have committed an offence.
- [60]In these circumstances, it was not necessary, in order to give business efficacy to the appointments of Podium by B Global, that such a term be implied into those appointments.
- [61]Consequently, I do not consider that there was any term implied into Podium’s appointments by B Global, nor was it a condition of B Global’s agreement or acquiescence in the appointment of sub-agents, that salespersons engaged by Podium’s sub-agents hold a real estate agent’s licence or a registration certificate as a real estate salesperson.
Was Podium the effective cause of sale?
- [62]B Global submitted that the effective causes of the sales were the salespersons who located and dealt with the buyers, while Podium only undertook administrative activities, none of which could be described as having influenced the buyer in the decision to buy the relevant lot, nor constitutes a causal link between buyer and seller, each of which is necessary for an agent to be an effective cause of sale.
- [63]Alternatively, to the extent that Podium relies on the salespersons’ activities as effective causes of sale, B Global submits that the activities were not undertaken under the authorisation of the real estate agent licences of Podium or the sub-agents because the salespersons were committing offences in carrying out the activities.
- [64]I shall address the second of these submissions when considering the effects of the salespersons not being registered. As to the first of these submissions, to say that an agent cannot be an effective cause of sale unless the agent has influenced the buyer in the decision to buy is too restrictive a test and does not reflect the law. It suggests that the agent must have direct, or almost direct, contact with the buyer, but that is not necessary. As Barwick CJ said in Hooker, an agent is entitled to commission where there is a sale which has resulted wholly or partially from the efforts of the agent. There is no requirement that the agent have any direct contact with the buyer.
- [65]Podium referred, in this respect, to a decision of the English and Wales Court of Appeal, in which Waller LJ said:[31]
London Mews were appointed sole agents by the vendor to sell Mr Burney's property. They prepared particulars and they advertised the property. If London Mews had handed those particulars, with their name on them, or if an employee of theirs had handed those particulars to any person, and that person then purchased the property, that handing of the particulars by London Mews themselves, or by an employee of theirs, would, as it seems to me, have amounted to an introduction by London Mews of the person to whom those particulars had been handed to the transaction if a sale resulted.
Furthermore, if one takes that example a little further; if the person to whom the particulars had been handed took those particulars to somebody else and that resulted in that somebody else approaching the vendor and purchasing the property, again it would seem to me that London Mews would have introduced that purchaser to the transaction.
Thus, as it seems to me, if London Mews handed the particulars to Kaye & Co for circulation to retained clients, and Kaye & Co had done what they were expected to do -- i.e, circulated those particulars to their retained clients -- there cannot be any doubt that if one of the retained clients had then purchased the property, London Mews would have been entitled to their commission … .
- [66]A little earlier, his Lordship cited and commented on another example of circumstances in which, he said, a real estate agent who had done very little would be entitled to commission on a sale:[32]
Assume an estate agent provides particulars to A, and that A takes them away and contacts the vendor direct. Assume negotiations then ensue between A and the vendor direct, or between A's solicitor and the vendor's solicitor direct, and it is those negotiations which conclude the purchase. In my view, even if the negotiations between A and the vendor, or A's solicitors and the solicitors for the vendor were an, or even the, effective cause of the bargain actually reached, the original supply of the particulars would amount to an introduction by the estate agent.
It would, as it seems to me, drive a coach and horses through the agreements which all estate agents make with vendors, if the mere fact that a would be purchaser who picked up the particulars from an estate agent’s desk, but carried out all the necessary bargaining thereafter, had the effect of depriving the estate agent of their commission.
- [67]These examples and the court’s conclusions in that case are, in my respectful view, correct. It falls now to consider, in the light of the principles I have enunciated earlier, whether Podium’s activities were effective causes of the sales.
- [68]The first relevant step that Podium undertook, having been appointed B Global’s agent for the sale of the 21 lots specified in the first appointment, was to send to Alliancecorp, on the same day as Podium’s appointment, an email attaching information about the project and the lots.[33] I expect that Mr Mulligan of Podium had a prior conversation with Mr Fyfe of Alliancecorp before sending that email, but there is no direct evidence of such a conversation.
- [69]A week later, Mr Fyfe responded, seeking to have two lots reserved for two of Alliancecorp’s clients, resulting in Mr Mulligan sending a proposed sales partner agreement to Mr Fyfe. Mr Fyfe then sought and was allocated four of the lots and, on 31 May 2021, both parties executed the agreement (although they dated it 1 June 2021). Thereafter, Alliancecorp submitted expressions of interest (and ultimately contracts were executed) for lots 102 (contract 23 June 2021), 2003 (contract 28 June 2021), 2005 (EOI 17 July 2021, contract 27 July 2021) and 203 (contract 28 July 2021).
- [70]On 31 May 2021, Mr Mulligan sent details of the lots and the project by email to Freedom. Initially Freedom’s Head of Property Acquisitions expressed some concerns about the project, but nevertheless Freedom first sent an expression of interest to Podium (for lot 206) on 12 July 2021, resulting in a contract of sale dated 30 September 2021. The first contracts executed by clients of Freedom were on 4 August 2021 (lots 804, 1002 and 1003).
- [71]I have described earlier the steps that each of Podium and its sub-agents took in the process of securing sales. Focusing on Podium’s activities, it is clear that, by providing details of the project and the lots to its sub-agents, by setting up its website so that documents could be (and were required to be) lodged online and by then liaising between its sub-agents and B Global (or PCIQ on behalf of B Global), Podium’s activities, as well as those of its sub-agents (through the salespersons and other employees involved in the processes), led to the introduction to B Global of persons who became buyers[34] and were necessary steps in securing the sales.
- [72]Podium’s activities were not only consistent with the third example given by Waller LJ[35] of an agent being an effective cause of sale, but its additional activities after providing details of the lots to its sub-agents also substantively contributed to effecting the sales. Its activities constituted causal links between the seller and the buyers. The fact that the buyers were located by the sub-agents (which were consequently themselves also effective causes of the sales) does not mean that Podium was not also an effective cause of the sales.
- [73]Consequently, I find that, subject to one further submission by B Global, Podium was the effective cause of each of the sales. Therefore, subject to the effect of the Act on its entitlement to receive and retain commissions on the sales, under its appointments by B Global it is entitled to payment of the unpaid commissions and to retain the paid commissions and it will be entitled to payment of the balance of the commissions upon settlement of each contract.
- [74]The additional submission by B Global to which I refer is that the conduct of unlicensed sub-agents (which I understand to mean the use of unregistered salespersons) cannot be the effective cause of sale because the salespersons were not authorised by law to undertake their tasks. However, this submission has little or no application, where Podium does not rely on the salespersons’ activities as constituting activities of Podium that were the effective cause of sale. Podium relies on its own activities, not those of the salespersons or the sub-agents. I will, however, consider this submission further after considering the effect of s 89 on Podium’s entitlement to receive and retain commissions, to which I now turn.
Does the Act, s 89, preclude recovery or retention of commissions?
- [75]Section 89 of the Act relevantly provides:
89 Restriction on recovery of reward or expense—no proper authorisation etc.
- A person is not entitled to sue for, recover or keep a reward or expense for the performance of an activity as a property agent … unless, at the time the activity was performed, the person—
- either—
- if the person performed an activity as a property agent—held a property agent licence; or
- …; and
- was authorised under the person’s licence to perform the activity; and
- was properly appointed under part 4 by the person to be charged with the reward or expense.
- A person who sues for, recovers or keeps a reward or expense for the performance of an activity as a property agent … other than as provided by subsection (1) commits an offence.
Maximum penalty for subsection (2)—200 penalty units.
- [76]Section 97 relevantly provides:
97 Acting as property agent
- A person must not, as an agent for someone else for reward, perform an activity that may be done under the authority of a property agent licence unless the person—
- holds a property agent licence and the performance of the activity is authorised under the person’s licence; or
- is otherwise permitted under this or another Act to perform the activity.
Maximum penalty – 200 penalty units or 2 years imprisonment
- A person must not act as a property agent unless—
- the person holds a property agent licence and the act is done under the authority of the person’s licence; or
- the act is otherwise permitted under this or another Act.
Maximum penalty – 200 penalty units or 2 years imprisonment
- Without limiting the ways a person may act as a property agent, a person acts as a property agent if the person—
- performs an activity mentioned in section 25(1) or (2) or 26(1); or …
- [77]Section 115 relevantly provides:
115 What a registration certificate authorises
(1) A registration certificate authorises the holder of the certificate to perform any activity that may be performed by the real estate agent who employs the holder.
- [78]B Global submits to the effect that the salespersons, not having registration certificates, were not entitled legally to undertake the activities they did in finding and securing buyers. As their actions were in breach of the Act, neither they, nor their employers (the sub-agents), nor Podium (as the appointed agent for the seller) were entitled to claim or to retain commissions or any other form of reward for securing the buyers.
- [79]Podium submits that sections 89 and 97 have different objectives. Section 89 is part of the “conduct provisions” comprising division 1 of part 3 of the Act. That division regulates the contractual relationship between a real estate agent and a client, with a view to protecting consumers by making sure that they are only required to pay agents who are properly licensed and appointed. The Act leaves other matters, such as the employment of properly registered salespersons, to be dealt with by way of disciplinary proceedings. It also leaves matters of licensing and registration of other personnel engaged in property transactions to regulation under other parts of the Act and to punishment for offences or other disciplinary action. The conduct of salespersons in failing to be registered and their employers’ conduct in engaging unregistered salespersons constitute (or may constitute) offences that may be prosecuted regardless of (and without affecting) the contractual arrangements between the appointed real estate agent and its clients.
- [80]Podium contends that these submissions are consistent with the Court of Appeal’s approach in Jones v Knobel & David Property Services Pty Ltd,[36] in which White JA said (concerning the predecessor to the Property Occupations Act):
Section 133(1) prohibits a real estate agent from performing a service for a client unless first appointed by the client in writing. … [The agent] is thereby exposed to disciplinary action.
Section 140 is concerned with something different, namely to prevent a real estate agent who has not been appointed in accordance with s 133 from benefiting from the relationship with the client in such a circumstance.
- [81]When one analyses s 89 and its application to Podium, one can see clearly how it operates: a person (Podium) cannot receive or keep a commission for the performance of an activity as a property agent unless, when the activity was performed, Podium held a property agent’s licence, was authorised under the licence to perform the activity and was properly appointed by the client (B Global). Section 97 operates in the same way, albeit for a different purpose.
- [82]In this case, Podium performed the activities I have referred to at [36] and [68] to [71] above, which were effective causes of the sales. At the times it performed those activities, it held a property agent’s licence under which it was authorised to perform the activities and it had been and remained appointed by B Global as its real estate agent to sell the lots. It complied with each of the requirements of s 89, thus (subject to any other disentitling section) entitling it to sue for, recover or keep a reward (commission under the respective appointments) for the performance of those activities.
- [83]Similarly, Podium complied with s 97, because the activities it performed as an agent for B Global were activities authorised under the property agent’s licence that it held.
- [84]I referred above, at [74], to B Global’s submission that the conduct of unlicensed subagents (which I understand to mean the use of unregistered salespersons) cannot be the effective cause of sale (to the extent that their conduct is or may be relied on by Podium as part of its conduct comprising the effective cause of sale) because the salespersons were not authorised by law to undertake their tasks.
- [85]Even though Podium does not rely on the salespersons’ activities as constituting its own activities that were the effective cause of the sales, if it were not for the salespersons’ activities, Podium’s activities would not been effective causes of the sales: the salespersons’ activities in finding and assisting potential buyers were necessary and effective in giving rise to Podium’s activities and its consequent entitlement to commission under its appointments by B Global.
- [86]Podium submits that B Global’s submission impermissibly blurs the requirements of the Act and the question of the effective cause of sale and also impermissibly blurs the activities of the salespeople with the relevant agent who holds the appointment.
- [87]In a slightly roundabout way, Podium’s analysis of the structure of the Act and of the effect of s 89 is supported by a recent decision of the New South Wales Court of Appeal,[37] in which the court considered similar provisions of the equivalent legislation in that State. Most relevantly, in my view, Adamson JA considered the effect on the enforceability of the appointment of the fact that neither the company nor the individual agent who secured the sales was licensed, which was a breach of the Act. That Act prevented the recovery of commissions for sales obtained by an unlicensed agent, but did not expressly prevent the agent (or the individual’s employer) from retaining commissions already paid. Her Honour agreed with the analysis of the primary judge; in particular, in referring to this observation by Mason J:[38]
There is much to be said for the view that once a statutory penalty has been provided for an offence the rule of the common law in determining the legal consequences of commission of the offence is thereby diminished.
- [88]
It is not the function of the common law to seek to improve on a regulatory scheme by supplementing the statutory sanctions for its breach. If a statute itself does not operate to deny legal operation to an agreement made in breach of one of its prohibitions, or to render that agreement unenforceable by reason of that breach, the coherence of the law is best served by a court respecting and enforcing that legislative choice.
- [89]Here, as Podium submitted, the Act provides alternative sanctions for different breaches. Under s 89, it looks at the person who is appointed by the seller and deprives that person of any entitlement to payment under the appointment unless that person satisfies the three stated requirements. Section 97 makes it an offence to act as an agent for reward without a property agent’s licence authorising the activity or otherwise being authorised under the Act. As I have already mentioned, other sections make it an offence to engage, or to be, a person who is not registered as a salesperson or does not have a licence. Those and other sections provide the potential consequences (penalties) for the other persons involved in the transactions the subject of this case.
- [90]Section 89 is not drawn so as to prohibit the payment of commissions to a person where any activities leading to a sale were performed by another person, whether or not employed by the first person, who was not, at the time of performing the activities, the holder of a property agent’s licence or a salesperson’s registration certificate. Had it intended to extend the prohibition to those circumstances, Parliament could have done so. It has not.
- [91]Podium does not appear to have committed any offences and, as I have held, it met all the requirements to be entitled to payment for its services under the appointments. The fact that its sub-agents engaged unregistered salespersons to perform their activities does not affect Podium’s entitlement to be paid.
- [92]My conclusion is therefore that, on a proper construction of the Act, the prohibition in s 89 does not apply to Podium, so it is entitled to recover and keep the commissions payable to it by B Global for its activities in securing buyers of the relevant lots.
Conclusions
- [93]The result is that Podium is entitled to succeed on its claim and B Global is not entitled to succeed on its counterclaim. I shall give judgment accordingly. However, it will be necessary to hear the parties on the question of interest (which Podium seeks under s 58 of the Civil Proceedings Act 2011).
- [94]Unless either party seeks a different order as to costs, B Global should pay Podium’s costs of the claim and of the counterclaim.
Annexure
B2B Sales Partner Appointment Extracts
ROLES AND RESPONSIBILITIES OF THE B2B PARTNER
As a condition to payment of any or all of the Fee to the B2B Partner, in addition to the introduction of a Buyer who settles on a Property sourced by PPM pursuant to a Relevant Contract, the B2B Partner must also undertake the following actions and tasks:-
- must make all endeavours to qualify that the Buyer has the financial capacity to complete the purchase of the Property under the Relevant Contract and if requested, provide evidence of such capacity;
- complete and submit a Hold/Reservation Form via the PPM website should the B2B Partner require a Property to be placed on hold a 48 hour period;
- complete and submit a Sales Advice Form/Expression of Interest Form via the PPM website. Please note that Podium Project Marketing will not accept hand written forms with Buyer(s) details nor the B2B Partner's version of Sales Advice Form/Expression of Interest Form;
- provide evidence of payment of any Deposit required by way of transfer receipt or bank statement;
- coordination with PPM's Contracts Manager with the assistance in critical dates or any information for each transaction;
- all communication with the Buyer;
- arranging and attending any Buyer pre and post settlement inspections of the Property;
- assisting PPM in recommending a preferred Property Manager or Onsite Complex Property Manager and facilitate buyer signing of any appointment paperwork required;
- directing every Buyer to obtain legal advice from and execute any Relevant Contract in consultation with a solicitor practising in the State where the Property is located; and
- complying with all relevant legislation in respect of the marketing and sale of the Property including without limitation the Property Occupations Act 2014;
- Disclose to PPM any benefit other than commission being paid by PPM to the B2B Partner that the B2B Partner may receive for referrals so that PPM may disclose the same on the PO Form 8.
ROLES AND RESPONSIBILITIES OF PODIUM PROPERTY GROUP
PPM will be responsible for the following actions and tasks:
- sourcing Property for sale to a Buyer utilising Podium Project Marketing's selection system;
- all communications with the Seller and/or Builder;
- preparation of due diligence reports on the developments comprising the Property;
- updating pricing and availability of the Property; and
- preparation (if required) and tracking of all Relevant Contracts for the Property.
SCHEDULE 1 - SALES PROCEDURE AND PROCESS
- The B2B Partner must complete and submit a Hold/Reservation Form via the Podium Project Marketing website should the B2B Partner require a Property to be placed on hold a 48 hour period.
- The B2B Partner must complete and submit a Sales Advice Form/Expression of Interest Form via the Podium Project Marketing website. Please note that Podium Project Marketing will not accept hand written forms with Buyer(s) details nor the B2B Partner's version of Sales Advice Form/Expression of Interest Form. The B2B Partner must also provide evidence of payment of any Deposit required by way of transfer receipt or bank statement. A Property will not be taken off the marketing nor will the contract process commence until the above is received by Podium Project Marketing's Contract Manager.
- Podium Project Marketing will contact the B2B Partner to confirm receipt of the Sales Advice Form/Expression of Interest Form and answer any queries that the B2B Partner may have.
- The Relevant Contract will be prepared by either Podium Project Marketing, the Seller's Solicitor or Agent acting for the Seller and/or Builder. Podium Project Marketing will make all endeavours to have the Relevant Contract prepared within three (3) business days of receipt of all required information.
- The Relevant Contract will be issued to the party nominated on the Sales Advice Form/Expression of Interest Form. The B2B Partner must make all endeavours to ensure the Buyer signs the Relevant Contract and returns it to Podium Project Marketing within seven (7) days of receipt.
- Podium Project Marketing will facilitate the countersigning of the Relevant Contract with the Seller and/or Builder.
- Finance for the Property (if required) is to be arranged by the Buyer in coordination with the B2B Partner. The B2B Partner will provide a copy of the finance approval letter to Podium Project Marketing upon request.
- Once the Relevant Contract becomes unconditional in all regards (ie. full Deposit paid by the Buyer, finance approved and/or waived and all conditions of both the Seller and/or Builder are satisfied), commission will be paid to the B2B Partner in accordance with the terms of this Agreement.
- Podium Project Marketing will update the B2B Partner of any construction updates for each project on quarterly basis. For any house and land transactions, Podium Project Marketing will update the B2B Partner on each stage of construction and/or cause the Builder to provide periodic updates.
- The Buyer with the assistance of the B2B Partner and/or Podium Project Marketing will appoint a Property Manager or Onsite Complex Property Manager.
- The Buyer and/or the B2B Partner will make arrangements for a pre-settlement Property inspection to be conducted.
- Settlement of the Relevant Contract occurs. The appointed Property Manager or Onsite Complex Property Manager will collect the settlement pack and keys.
- Commission payment to the B2B Partner in accordance with the terms of this Agreement will occur.
- A Tenant is sourced by the appointed Property Manager or Onsite Complex Property Manager and occupies the Property. Any outstanding defects are rectified by Builder.
Footnotes
[1]Entitled “Appointment and reappointment of a property agent, resident letting agent or property auctioneer.” The appointments were respectively dated 21 May 2021 (21 lots), 22 June 2021 (9 lots) and 16 July 2021 (30 lots).
[2]Amended statement of claim, [21B]; amended defence, [7B]; affidavit of Geoffrey Booth, 7 August 2024, [8]-[9] (this affidavit replaced documents 46 to 51 in the trial bundle.
[3]The parties’ roles and responsibilities and the sales procedure and process are set out in full in the annexure to these reasons, as they are particularly relevant to whether Podium was an effective cause of sale of the lots in question.
[4]This clause clearly reflects the new clause in B Global’s third appointment of Podium as its agent: see [8] above. But, notwithstanding this clause, in the schedule of projects the subject of the agreement, it provided that Freedom’s invoice was to be to Podium.
[5]Only half the normal commission was payable on the sale of one lot. Both figures include GST.
[6]Statement of claim, [22]; defence, [8]; reply, [8], [11],
[7]Defence, [8(d)] and [11(b)]; reply, [8(d)], [11(b)].
[8]Statement of claim, [21D]; defence, [7C], [7D]; reply, [7C], [7D],
[9]Defence, [7D]; reply, [7D].
[10]Statement of claim, [24]-[25]; defence, [10]-[11]; reply, [11].
[11]Lot 2005: defence, [8(d)(iv)]; reply, [8(d)].
[12]Lots 102, 203 and 2003: Booth affidavit, [16].
[13]Defence, [8(d)]; reply, [8(d)].
[14]Booth affidavit, [16].
[15]Ms Utopo has subsequently obtained such a licence, effective from 24 August 2023.
[16]In these reasons, in referring to “the” effective cause of sale, I mean to include “an” effective cause unless I make it clear otherwise.
[17](1977) 138 CLR 52.
[18](1977) 138 CLR 52, 86 (footnotes omitted).
[19](1977) 138 CLR 52, 83.
[20](1977) 138 CLR 52, 58.
[21]Hooker, 68; Outerbridge v Hall (2020) 102 NSWLR 921, [62].
[22]Moneywood Pty Ltd v Salomon Nominees Pty Ltd (2001) 202 CLR 351, [30].
[23]Luxor (Eastbourne) Ltd v Cooper [1941] AC 108, 124; Moneywood, [126]; Outerbridge, [2].
[24]Outerbridge, [63], [64], citing Berben v Hedditch (1982) NSW ConvR 55-081, 56,480 & 56,482.
[25]Affidavit of Richard Mulligan filed on 18 July 2024, TB[1], [44].
[26]Particularly that the first requires that the real estate agent know, or ought to know, that the employee is not a real estate salesperson whereas the second appears to be one of strict liability regardless of the real estate agent’s knowledge.
[27]It is not clear how buyers were located but it appears, from the correspondence between them and Podium, that the sub-agents had databases of potential investors and appointed the salespersons to contact potentially interested buyers.
[28]For example, for Freedom, lot 202, TB255; for Alliancecorp, lot 2005, Mulligan affidavit filed on 18 July 2024, RGM-1, document 47.
[29]Booth affidavit, [14].
[30]Further amended defence, [7D].
[31]Burney v The London Mews Co Ltd [2003] EWCA Civ 766, [30] – [32]. Kay LJ agreed with Waller LJ.
[32][2003] EWCA Civ 766, [26] - [27].
[33]TB86-110.
[34]See [31] above.
[35]See [65] above.
[36][2008] QCA 105, [39]-[40].
[37]Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133, [229]- [238]. The primary decision was White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817.
[38]Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, 429.
[39]Gnych v Polish Club Ltd (2015) 255 CLR 414, [73] per Gageler J; cited by Adamson JA at [230].