Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QDC
  3. 2024
  4. Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd - [2024] QDC 3

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd[2024] QDC 3

Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd[2024] QDC 3

DISTRICT COURT OF QUEENSLAND

CITATION:

Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd [2024] QDC 3

PARTIES:

PODIUM PROJECT MARKETING PTY LTD

ACN 637 089 760

(plaintiff/applicant)

v

B GLOBAL (AUST) PTY LTD

ACN 644 677 136

(defendant/respondent)

FILE NO:

1087 of 2022

DIVISION:

Civil

PROCEEDING:

Interlocutory application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

2 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

5 September 2023

JUDGE:

Byrne KC DCJ

ORDER:

  1. The plaintiff’s application for summary judgment is refused.
  2. I will hear the parties as to costs.

CATCHWORDS:

SUMMARY JUDGMENT – CONTRACT – BREACH OF CONTRACT – DEBT UNDER A CONTRACT – where the plaintiff was appointed as a property agent for the sale of specified lots in a residential estate development by the defendant – where the plaintiff was entitled to commission if it were the effective cause of sale – where the plaintiff engaged corporate entities to effect the sales – where the sales were directly effected by salespersons who were employed by those corporate entities – where none of those salespersons held any form of licence under the Property Occupations Act 2014 (Qld) (“POA”) – where the plaintiff accepts that the salespersons were the direct effective cause of sale of the respective sales – whether the conduct of the salesperson in effecting the sales is to be imputed to the plaintiff.

SUMMARY JUDGMENT – STATUTORY INTERPRETATION – where section 89 of the POA precludes the recovery of commission unless the claimant is licensed – where the plaintiff was licenced as a real estate agent but was not the direct cause of the sales – where the plaintiff relies on the conduct of an unlicenced agent to prove it is the effective cause of the sale – where the legislation does not expressly cover the present factual scenario – whether s. 89 of the POA precludes the plaintiff recovering commission.

LEGISLATION:

Acts Interpretation Act 1954 (Qld) s 14A.

Property Occupations Act 2014 (Qld) ss 12, 16, 26, 55, 56, 89, 97, 98, 151.

Uniform Civil Procedure Rules 1999 (Qld) rr 166(4), 292.

CASES:

Berben v Hedditch [1982] ANZ ConvR 535.

City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55.

Equititrust Limited v Gamp Developments Pty Ltd [2009] QSC 115.

Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215.

LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52.

Moore v Luxury Boat Holdings Pty Ltd [2020] WASCA 144.

Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357.

COUNSEL:

Mr J.D. Byrnes for the plaintiff/applicant.

Mr L. Copley for the defendant/respondent.

SOLICITORS:

Clayton Utz for the plaintiff/applicant.

Freestone Law for the defendant/respondent.

Introduction

  1. [1]
    On 12 May 2022, the plaintiff filed a Claim and Statement of Claim seeking $275,000 for monies recoverable as a debt under a contract due and owing or, alternatively, damages in the same amount for breach of contract, together with interest and costs. The claim is in respect of commission on sales of lots in a property development it asserts it is entitled to.
  2. [2]
    The defendant initially filed a Defence and subsequently, on 20 July 2023, an Amended Defence and Counterclaim.  In essence, it denies liability for payment of the sum claimed and, by counterclaim, seeks $462,000 paid under the subject contract, in respect of other lots in the property development, that it says it paid under the mistaken belief it was required to make payment.  It asserts that the plaintiff has been unjustly enriched by the payments made under a mistake of fact.
  3. [3]
    The plaintiff elected not to file an amended Reply in response to the Amended Defence and Counterclaim.  The pleadings are closed.
  4. [4]
    The plaintiff now applies for summary judgment on $253,000 of its claim.  It abandons the claim for the remaining $22,000, if it succeeds in obtaining summary judgment.

Factual summary

  1. [5]
    Between May 2021[1] and July 2021[2], the plaintiff and the defendant entered into three written agreements whereby the plaintiff was appointed as a property agent for the sale of specified lots developed by the defendant in a residential estate development.  Only the first and third of those agreements are relevant for present purposes. Apart from the nomination of which lots were to be sold under the respective agreements and the date of the agreements, each agreement was identical, save in one other respect.
  2. [6]
    Each agreement relevantly:
  1. Was in Form 6 “Appointment and reappointment of a property agent, resident letting agent or property auctioneer” in accordance with the Property Occupations Act 2014 (“POA”) and regulations;
  2. Nominated which lots were the subject of the respective agreements;
  3. Provided for a continuing appointment;
  4. Provided that the plaintiff was appointed under an “open listing”;
  5. Provided that the commission payable to the plaintiff was $40,000 plus GST, with half payable at specified points in time and the remainder on settlement of sale of the respective lots; and
  6. Provided that the plaintiff was entitled to the agreed commission if it was the “effective cause of sale”.
  1. [7]
    The first agreement relevantly specified four lots as the subject of the agreement, the last agreement specified nine lots.  The other difference between the agreements was that the latter agreement expressly provided that the plaintiff could appoint and use sub‑agents for the purposes of the agreement.
  2. [8]
    The plaintiff was engaged in the business of a real estate agent, as defined at section 16 of the POA, and held a real estate agent licence.  On 1 June 2020 and 31 May 2021, the plaintiff respectively entered into a “Business 2 Business Property Sales Partner Appointment” with entities I will refer to as Freedom and Alliancecorp, for the sale of property. Subsequently, the subject lots became the subject of these agreements, and so, in effect, they became the plaintiff’s agent for the sale of the subject lots.
  3. [9]
    There was a further written agreement between the plaintiff and Freedom dated 1 September 2021, styled as a “Sub Agent Appointment”. The plaintiff pleaded this was the result of a novation of the earlier agreement between the plaintiff and Freedom. It seems, in effect, to have replaced the earlier agreement between them.
  4. [10]
    Each of Freedom and Alliancecorp held real estate agent licences. Their ability to utilise those licences for the sale of the subject lots was regulated by the POA.
  5. [11]
    The 12 lots the subject of this application were sold under contracts dated between 27 July 2021 and 30 September 2021. The sales were directly caused by salespersons employed variously by Freedom and Alliancecorp.  On the material before me, none of those salespersons held any form of licence under the POA, or at least it is not shown that any of them were licensed. 
  6. [12]
    The plaintiff issued invoices to the defendant for payment of commissions for each of the 12 subject lots, which are unpaid. 

The parties’ submissions

  1. [13]
    Given the nature of the present application, it is convenient to firstly consider the defendant’s submissions to determine if the defendant has no real prospect of successfully defending the claim.[3]
  2. [14]
    The defendant contends that the plaintiff is not entitled to the claimed commission because:
  1. The salespersons were the effective cause of the sales of the 12 lots, and not the plaintiff. Although the Amended Defence and Counterclaim[4] asserted that the sub-agents were the effective cause of the sales, that was pleaded in response to paragraph 22 of the Statement of Claim which asserted the plaintiff was the, or an, effective cause of the sales. The assertion in the defence did not constitute an admission of a fact. There is no evidence put on by the plaintiff to prove that it was the, or an, effective cause of the sales. Nor is there evidence, or an admission, that the salespersons were the, or an, effective cause of the sales. Therefore, the plaintiff cannot rely on its own endeavours or those of the salesperson to prove that it was the, or an, effective cause of the sales in its own right or by virtue of the agency agreements (“the effective cause of the sales issue”);
  2. The salespersons were not licenced as required by the POA. Section 89 of the POA therefore denies any entitlement to sue for the recovery of the commission. Specifically in the circumstances here, none of the provisions of the POA allowed the licence of another entity to be relied on by the salespersons in order that they may have acted lawfully in being the effective cause of the sales (“the statutory construction issue”); and
  3. That nine of the 12 lots sold by Freedom were the subject of contracts of sale dated prior to the “novated” subagency agreement between the plaintiff and Freedom and, therefore, the commissions payable for the sales of those lots are not claimable under the terms of the plaintiff’s pleaded case (“the timing issue”).
  1. [15]
    The plaintiff accepts that the salespersons were the direct effective cause of the respective sales.  It however asserts that as they were the sub‑agents of the plaintiff, the plaintiff is entitled to be viewed as the, or an, effective cause of the sales and, as such, is contractually entitled to payment of the commission.
  2. [16]
    Further, it is argued, that by appointing Freedom and Alliancecorp, whose actions must always be undertaken by individuals and who “caused the sale”, the plaintiff “really brought about the relation of buyer and seller”, leading to the conclusion that the plaintiff itself was an effective cause of sale[5] (also “the effective cause of sales issue”).
  3. [17]
    Further, section 89 of the POA denies the plaintiff the opportunity to recover the commissions unless it is licensed. The plaintiff is licensed and so section 89 does not preclude recovery.  Other provisions of the POA concerned with licensing do not affect that interpretation of section 89.

Legislative framework

  1. [18]
    The objects of the POA are found at section 12 of the legislation.  In addition to regulation of the industry, they provide for protection of consumers.
  2. [19]
    Section 55 restricts the occasions where a corporation may perform an activity under its licence, and particularly which person may operate under its licence.
  3. [20]
    Section 56(1) provides, for present purposes, that an employed licensee may only perform activities under that person’s licence where the employers licence also permits that activity to be performed.
  4. [21]
    Section 89 is central to the present dispute.  It relevantly provides:

89 Restriction on recovery of reward or expense—no proper authorisation etc.

  1.  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—
  1.  either—
  1.  if the person performed an activity as a property agent—held a property agent licence; or
  1.  …; and
  1.  was authorised under the person’s licence to perform the activity; and
  1.  was properly appointed under part 4 by the person to be charged with the reward or expense.
  1.  A person who sues for, recovers or keeps a reward or expense for the performance of an activity as a property agent or resident letting agent other than as provided by subsection (1) commits an offence.

Maximum penalty for subsection (2)—200 penalty units.

  1. [22]
    Sections 97 and 98 are offence creating provisions that respectively prohibit unlicensed persons undertaking activities that require a licence, including acting as a property agent unless otherwise authorised under the POA or another Act, and, amongst other things, the engagement of unlicensed persons as real estate agents.
  2. [23]
    Section 151 is an offence creating provision concerned with persons acting as a real estate agent without a registration certificate. Section 26 sets out the conduct a real estate licence authorises an individual to perform, and hence the conduct those who are unlicensed cannot perform.

Consideration

“The effective cause of the sales issue”

  1. [24]
    The plaintiff’s primary case is an acceptance that the individuals were the effective cause of the sales, but also that as those sub-agents of the plaintiff were the direct effective cause of the sales, the plaintiff is imputed to be the effective cause of those sales. It further argues that it was in fact the effective cause of sale by engaging those sub-agents. The latter argument can be considered first.
  2. [25]
    The jurisprudence on the meaning of “effective cause of sale” is extensive, but it is sufficient for present purposes to note that whether a person or entity is the effective cause of sale will always be fact dependent in light of the actual conduct resulting in the signing of the contracts.[6] In order to be the effective cause of sale, the claiming party must have influenced the purchaser in the decision to buy, in some manner.[7] In any given factual scenario there may be many causes of the sales, but in order to be the effective cause of sale, the actions of the claiming party must have “really brought about the relation of buyer and seller”.[8]
  3. [26]
    The agreements between the plaintiff and each of Freedom and Alliancecorp were each pleaded in the Statement of Claim, and each were effectively admitted. While each required the plaintiff to undertake certain tasks once a purchaser expressed interest in purchasing a lot, those tasks were all facilitative tasks and none of them required direct contact with the prospective purchaser. There is in any event, no evidence of what was in fact done by the plaintiff in each sale.
  4. [27]
    Accordingly, regardless of whether it is arguable that the plaintiff was itself a cause of the sales, on the material before me, the defendant has reasonable prospects of defending the claim on the basis that the plaintiff itself was an effective cause of the sales.
  5. [28]
    As to the other basis argued under this issue, there has been no evidence put on that the subject lots were in fact sold by the plaintiff’s agents, or sub-agents. Ordinarily then, the issue would be decided on the basis of the pleadings. If this allegation is not proven, the plaintiff cannot prove it was the effective cause of the sales by adopting the actions of its agents, or sub-agents. 
  6. [29]
    In the pleadings, the defendant denied the plaintiff was the, or an, effective cause of sale and in so doing gave as one reason for the denial the assertion that the variously named employees of Freedom and Alliancecorp were the effective cause of sale of the respective lots.[9]  The manner in which the defendant pleaded its Counterclaim was to incorporate the explanation in the Defence that the employees of Freedom and Alliancecorp were the effective cause of sale of other various lots the subject of the Counterclaim.[10]  The plaintiff, in its reply, “adopts the admission that the sale of each of the Properties was effected by through [sic] the use of subagents engaged by Podium”[11] but admits that assertion for the purposes of the Counterclaim, albeit not very clearly.[12] It denied that the salespersons were required to be licensed under the POA.[13]
  7. [30]
    Strictly, the defendant’s pleading that the salespersons were the effective cause of sale was not an admission that could be adopted in the Reply. The plaintiff’s assertion that it was the, or an, effective cause of the respective sales was put in issue by the denial and the further assertion was the explanation for the defendant’s belief that the allegation is untrue.[14]  The explanation therefore remains a fact in issue in the Claim, but not the Counterclaim, and the summary judgment application might ordinarily be refused on the lack of evidence or express admission in the Claim.  However, it is plainly clear that both parties are aware of the allegation, and are proceeding on that basis as a matter of fact.
  8. [31]
    Although an application such as the present will usually pay close attention to the pleadings, it has been held that rule 292 of the UCPR “does not limit the power to give summary judgment to instances where the plaintiff’s argument precisely accords with its pleading”.[15] It seems to me that in the current circumstances there is no unfairness to the defendant in proceeding on the basis of its explanation. It is, after all, its own case and must, for present purposes, be assumed to accord with the manner the issue would be pursued at trial.
  9. [32]
    Proceeding on the basis that the sales were made by the salespersons employed variously by Freedom and Alliancecorp, those salespersons were the sub-agents of the plaintiff, and the plaintiff is thereby imputed with their conduct, in the present circumstances.[16] That is, the plaintiff is taken to have been the effective cause of the respective sales and, on the material before me, the defendant has no reasonable prospects of defending the Claim on this basis.

The statutory construction issue

  1. [33]
    Section 89 of the POA does not deem the sales conduct imputed to the plaintiff to be illegal, but it does preclude the plaintiff from suing for or recovering a reward[17] for the performance of an activity as a property agent, unless it holds a property agent licence.  For present purposes, that can be limited to a consideration of the holding of a real estate agent licence.  It is overly simplistic however to conclude that because the relevant conduct is imputed to the plaintiff, which held a relevant licence, but which was not in any way used to authorise the relevant conduct, that the provision does not apply.
  2. [34]
    On the pleadings, none of the actual salespersons held such a licence, or at least it is not alleged that they did. Accordingly, they cannot act as real estate agents[18] by, inter alia, acting as an agent for reward in the buying or selling of interests in real property.[19] There is no evidence to suggest they fall within the exception at section 151(2)(c), nor at section 97(4) of the POA.
  3. [35]
    But can they, in effect, be deemed to be licensed by acting under the licence of their respective employers, Freedom and Alliancecorp, or that of the plaintiff?[20]  The answer is, no.  They cannot shelter under the protection of section 56 of the POA as each of them are not licensees in the first place and there is no evidence, nor pleading, to establish that any of the salespersons could lawfully act in reliance of section 55 of the POA. Therefore, none of them would have been entitled to sue for or recover a reward for the performance of the sales activity under section 89 of the POA,[21] yet the plaintiff asserts it can when it relies on their conduct to establish a basis for the claim. That cannot be correct.
  4. [36]
    The intent of the legislation is clear.  The POA is designed, in part, to achieve industry regulation and consumer protection.[22]  The obvious intent of section 89 of the POA is to provide a disincentive for unlicenced conduct, that is to deny the ability to claim, inter alia, commission on the sale of real estate unless the claimant’s actions raising the entitlement were performed in accordance with and under the authorisation of a real estate agent licence.
  5. [37]
    While the plaintiff was licensed itself, the actions of those who were, on the material before me, the effective cause of the sales were not operating under the authority of that licence.  Therefore, the fact that the plaintiff itself was relevantly licensed is, in itself, irrelevant.
  6. [38]
    It can be accepted that the legislation does not expressly cover the present factual scenario.  However, I consider my findings give “effect to the … imputed will of Parliament”[23] and adopt the interpretation that best achieves purpose of the Act.[24]  The construction promoted by the plaintiff would allow for business arrangements to readily circumvent the prohibition on the receipt of commission by unlicensed persons.  That would render the legislated disincentive nugatory and, in my view, is contrary to the purposes of the Act. My conclusion is also consistent with the operation of section 55(4) of the POA.
  7. [39]
    The conduct amounting to being the effective cause of sale cannot be severed from the fact it was performed while unlicensed. The plaintiff cannot claim the benefit of the conduct by the agent (or sub-agent) without the detriment of doing so. The interpretation I favour maintains the disincentive by way of precluding principal from claiming commission where the sales were effected by unlicenced individuals.
  8. [40]
    It cannot be said that the defendant has no real prospect of defending the Claim on this basis and the application must fail.

The timing issue

  1. [41]
    Although this issue need not be determined given my conclusion above, it can be dealt with in short compass.
  2. [42]
    The defendant asserts that the pleadings show that none of the 12 lots were sold prior to the execution of the “novated” agreement between the plaintiff and Freedom, and therefore commissions cannot be payable in respect of those sales, because the only claims that can be made are in respect of sales under the “novated” agreement.
  3. [43]
    The argument turns on a highly restrictive, and I consider untenable, reading of the pleadings. On a fair reading, all relevant sales were made under one or the other of the agreements between the plaintiff and Freedom. The defendant’s submission on this issue cannot be accepted.

Costs

  1. [44]
    The plaintiff wished to make submissions on costs in the event it was unsuccessful in the application.  It will have that opportunity.
  2. [45]
    Orders
  1. The plaintiff’s application for summary judgment is refused.
  2. I will hear the parties as to costs.

Footnotes

[1]  Paragraph 4 of the Statement of Claim refers to the agreements being signed between about May 2022 and July 2022. Both dates are clearly typographical errors in light of the rest of the pleadings. Paragraph 5 pleads a specific first date of 21 May 2021, which was admitted by the defendant.

[2]  Paragraph 6 pleads a specific date of 16 July 2021. The defendant pleaded that it was dated 19 July 2021.

[3]  Rule 292 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”).

[4]  Paragraph 8(d).

[5]  Plaintiff’s written submissions, paragraph 19.

[6] Moore v Luxury Boat Holdings Pty Ltd [2020] WASCA 144, [48] citing Moffitt P in Berben v Hedditch [1982] ANZ ConvR 535, 536-537.

[7] Moore v Luxury Boat Holdings Pty Ltd, supra at [47].

[8] LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52, 86.

[9]  Paragraphs 8(b), (c), (d) and 11(c)(ii) of the Amended Defence and Counterclaim.

[10]  Paragraphs 1 and 4 of the Counterclaim.

[11]  Paragraph 8(d)(i) of the Reply.

[12]  Paragraph 1 of the Answer to Counterclaim.

[13]  Paragraph 8(e)(iii) of the Reply.

[14]  Rule 166(4) of the UCPR.

[15] Equititrust Limited v Gamp Developments Pty Ltd [2009] QSC 115, [12].

[16]  If authority is required for the proposition, see City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55, 66.

[17]  A reward, by definition, includes commission.

[18]  Section 151(1) of the POA.

[19]  Section 26(1)(a) of the POA.

[20]  Sections 55, 56 and 97(1)(b) of the POA.

[21]  See also Sultana Investments Pty Ltd v Cellcom Pty Ltd [2008] QCA 357, [36], [38].

[22]  See s 12 of the POA and Sultana Investments Pty Ltd v Cellcom Pty Ltd, supra at [53] concerning earlier, analogous, legislation.

[23] Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215, per Kirby J at 247.

[24]  Section 14A of the Acts Interpretation Act 1954.

Close

Editorial Notes

  • Published Case Name:

    Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd

  • Shortened Case Name:

    Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd

  • MNC:

    [2024] QDC 3

  • Court:

    QDC

  • Judge(s):

    Byrne KC DCJ

  • Date:

    02 Feb 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Berben v Hedditch [1982] ANZ ConvR 535
2 citations
Jump To
Cite 1 - [1982] ANZ ConvR 535
Cite 2 - [1982] ANZ ConvR 535
City Finance Co. Ltd v Matthew Harvey & Co. (1915) 21 CLR 55
2 citations
Jump To
Cite 1 - (1915) 21 CLR 55
Cite 2 - (1915) 21 CLR 55
Equititrust Limited v Gamp Developments Pty Ltd [2009] QSC 115
2 citations
Jump To
Cite 1 - [2009] QSC 115
Cite 2 - [2009] QSC 115
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
2 citations
Jump To
Cite 1 - (1997) 189 CLR 215
Cite 2 - (1997) 189 CLR 215
L J Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52
2 citations
Jump To
Cite 1 - (1977) 138 CLR 52
Cite 2 - (1977) 138 CLR 52
Moore v Luxury Boat Holdings Pty Ltd [2020] WASCA 144
2 citations
Jump To
Cite 1 - [2020] WASCA 144
Cite 2 - [2020] WASCA 144
Sultana Investments Pty Ltd v Cellcom Pty Ltd[2009] 1 Qd R 589; [2008] QCA 357
2 citations
Jump To
Cite 1 - [2008] QCA 357
Cite 2 - [2008] QCA 357

Cases Citing

Case NameFull CitationFrequency
Podium Project Marketing Pty Ltd v B Global (Aust) Pty Ltd (No. 2) [2024] QDC 81 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.