CATCHWORDS CONTRACT - Statutory Illegality. PRINCIPAL and AGENT - Statutory Illegality - whether applicant acted as a "real estate agent" for the purposes of the prohibition in the Auctioneers and Agents Act 1971 (Qld). Auctioneers and Agents Act 1971 (Qld) ss 5, 14, 62, 70, 71A and 130. Property, Stock and Business Agents Act 1941 (NSW) ss 3, 20, 42 and 87. Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 419. Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410. WARWICK COLBRON v ST BEES ISLAND PTY LTD & ORS No NG 326 of 1994 Lindgren J 3 March 1995 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY) No G326 of 1994 GENERAL DIVISION ) WARWICK COLBRON Applicant ST BEES ISLAND PTY LTD (ACN 010 400 572) First Respondent LIONEL NEIL BERCK Second Respondent MARGARET OTTLLIE BERCK Third Respondent JOHN FRANCIS URCH Fourth Respondent WHITSUNDAY ISLAND DEVELOPMENTS PTY LIMITED (ACN 059 374 882) Fifth Respondent CORAM: LINDGREN J PLACE: SYDNEY DATE: 3 MARCH 1995 MINUTE OF ORDERS THE COURT: 1. ORDERS that the order made on 19 December 1994 that certain questions be decided separately from any other question in the proceedings be set aside. 2. ORDERS that the costs of the hearing of the questions ordered to be separately decided be the parties' respective costs of the proceedings. 3. DIRECTS that the proceedings stand over to Wednesday 8 March 1995 at 9.30 for further directions. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY) No G326 of 1994 GENERAL DIVISION ) WARWICK COLBRON Applicant ST BEES ISLAND PTY LTD (ACN 010 400 572) First Respondent LIONEL NEIL BERCK Second Respondent MARGARET OTTLLIE BERCK Third Respondent JOHN FRANCIS URCH Fourth Respondent WHITSUNDAY ISLAND DEVELOPMENTS PTY LIMITED (ACN 059 374 882) Fifth Respondent CORAM: LINDGREN J PLACE: SYDNEY DATE: 3 MARCH 1995 REASONS FOR JUDGMENT NATURE OF PROCEEDINGS The applicant ("Colbron") seeks to recover from the first, second, third and fourth respondents ("the Vendors") the amount of a commission arising out of the sale by them of the leasehold of St Bees Island (I will refer to that leasehold as "the Island") to the fifth respondent ("Whitsunday"). By his Amended Statement of Claim filed on 15 July 1994 Colbron alleges that in or about late September or early October 1993 it was agreed between him and the fourth respondent ("Urch") on behalf of himself (Urch) and the first to third respondents ("St Bees", "Berck" and "Mrs Berck") that if he (Colbron) introduced to the Vendors a potential purchaser of the Island with whom he was in contact and that potential purchaser "purchased" the Island, the Vendors would pay him an amount equal to 4% of the purchase price. Paragraph 6A of the Amended Statement of Claim pleads that the agreed time for payment of the 4% fee was within seven days of the consent by the relevant Minister to the sale (title was in the form of leases from the Crown). Colbron alleges that in October 1993 he introduced Whitsunday to the Vendors, that in October and November he facilitated negotiations between the Vendors and Whitsunday, that on 29 November 1993 the Vendors entered into a contract with Whitsunday for a sale of the Island to Whitsunday for $6,000,000. In the Amended Statement of Claim and other documents referred to below, Colbron alleges that on 12 or 13 December 1993 Ministerial consent to the transfer from the Vendors to Whitsunday was granted; that the consent was "modified" on 15 December 1993; and that on 19, 20 or 22 December 1993 (depending on which of 12, 13 or 15 December was properly to be regarded as the date of the Minister's consent), he became entitled to be paid $240,000 (4% of $6,000,000) by the Vendors which they failed to pay. In the alternative to the above claim in contract, Colbron pleads that the Vendors engaged in misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth). This claim is not presently relevant. In their Defence, the Vendors plead, inter alia, that Colbron was not entitled to succeed by reason of certain provisions of the Auctioneers and Agents Act 1971 (Qld) and/or of the Property, Stock and Business Agents Act 1941 (NSW). It is to those statutory provisions that these Reasons relate. On 19 December 1994, by consent, I ordered pursuant to Order 29 r 2 of the Federal Court Rules that certain questions be decided separately from any other question in the proceedings. They are set out as follows: "[In the following statement of assumptions and questions, the following terms have the following meanings: "Colbron" means the applicant. "The Vendors" means the first, second, third and fourth respondents. "The Purchaser" means the fifth respondent. "the Island" means the Vendors' leasehold estate or interest in St Bees Island, Queensland. "The Colbron agreement" means the agreement pleaded and particularised in paragraph 6A of the amended statement of claim filed on 15 July 1994 in these proceedings. "The Sale agreement" means the agreement by which the Vendors agreed to sell the Island to the Purchaser]. On the following assumptions: (a) that the Colbron agreement was made by an offer made by Colbron in Queensland and accepted by the Vendors in New South Wales; (b) that the following were terms of the Colbron agreement; (i) that if Colbron introduced to the Vendors a purchaser of the Island, who entered into a sale agreement which received the consent of the Minister and proceeded to completion, Colbron would be paid by the Vendors a consideration of 4% of the purchase price; (ii)that in effecting any such introduction Colbron would not be acting as agent of either the Vendor or the Purchaser; (c) that Colbron introduced the Purchaser to the Vendors as a purchaser of the Island in the circumstances set out in paragraphs 3, 4, 5 and 6 of the applicant's affidavit sworn 6 December 1994; (d) that Colbron facilitated the making, implementation and completion of the Sale agreement, which facilitation took place partly in Queensland and partly in New South Wales; (e) that the Island is located in Queensland; (f) that Colbron was not at any relevant time the holder of a licence as a real estate agent under either the Auctioneers & Agents Act 1971 (Qld.) or alternatively under the Property Stock & Business Agents Act 1941 (NSW); (g) that Colbron was beneficially interested from January 1994 in an agreement with the Purchaser, as co-ordinating consultant in respect of the development of the Island by the Purchaser; (h) that it was agreed in November 1993 between Colbron and the Purchaser that the Purchaser would transfer to Colbron a block of land on the Island once it was developed by the Purchaser; (i) that the Sale agreement was completed in March 1994; 1. Which, if any, of the statutory provisions pleaded by the Vendors are applicable to the: (a) formation of the Colbron agreement; (b) performance of the Colbron agreement; and (c) any right of Colbron to recover consideration from the Vendors pursuant to the Colbron agreement. 2. What is the answer to question 1 if, instead of assumption (a) above, the Colbron agreement was made by an offer made by the Vendors in New South Wales accepted by Colbron in Queensland. 3. What is the answer to question 1 if the term referred to in assumption (b) (ii) above was not a term of the Colbron agreement. 4. What is the answer to question 1 above if both instead of assumption (a) it is assumed that the Colbron agreement was made by an offer made by the Vendors in New South Wales accepted by Colbron in Queensland and the term referred to in assumption (b) (ii) above was not a term of the Colbron agreement. 5. Is the Colbron agreement rendered illegal, void, contrary to public policy and/or unenforceable by reason of the application of the statutory provisions pleaded by the Vendors." Where I use expressions defined above, I use them as having the respective meanings given to them above. I will call the assumptions referred to in paras (a) to (i) above "the Assumptions". Assumption (c) refers to paragraphs 3, 4, 5 and 6 of Colbron's affidavit sworn 6 December 1994 (I will call those paragraphs "Colbron's affidavit"). The parties agreed that I should also take into account matters which were alleged by Colbron, or alleged by the Vendors and not disputed by Colbron, in certain other documents. These were the pleadings (Colbron's Amended Statement of Claim filed 15 July 1994, the Vendors' Defence filed 29 July 1994, Colbron's Reply filed 22 August 1994, the Vendors' Cross-Claim filed 5 September 1994, and Colbron's Defence to Vendors' Cross-Claim filed 16 September 1994) ("the Pleadings") and particulars supplied by Colbron in response to requests by the Vendors ("the Particulars"). The parties supplied a bundle of the requests and replies with parts which they respectively wished me to notice marked by them. As a result, the facts for the purpose of the questions for separate decision are as set out in the following paragraphs. FACTS FOR THE PURPOSE OF THE SEPARATE QUESTIONS On 3 October 1993 when he was holidaying on Queensland's Gold Coast, Colbron telephoned Urch who was in Sydney, inquiring whether the Island was still for sale and Urch told him that it was. Colbron said that he might have somebody interested and asked for some documents, and Urch undertook to send him copies of the leases. On the next day, 4 October 1993, there was a further telephone conversation between Colbron on the Gold Coast and Urch in Sydney in which it was agreed that if Colbron introduced the potential purchaser, the Vendors would pay him a commission of 4% of the purchase price "payable on completion which could be say 7 days after Minister's consent" (Colbron's affidavit, para 4). Colbron said "I am not an agent for anybody, I'll just be a facilitator". He revealed that the potential purchaser was Alan Bond who might contact Urch. Urch told Colbron that he had spoken to Berck who would "go along" with what he (Urch) agreed to. I interrupt this chronological account to refer in more detail to the term as to the time for and condition of payment of the fee to Colbron. As noted earlier, para 6A of the Amended Statement of Claim pleaded that it was to be paid within seven days of the Minister's consent to the sale and, consistently with this, Colbron alleges that it became payable on 19, 20 or 22 December 1993 depending upon the correct view as to when that consent was given. However, as just noted, para 4 of Colbron's affidavit was to the effect that the agreement was that the fee was to be paid "on completion which could be say 7 days after the Minister's consent". The Vendors' Defence, in sub-para 2 (d), also pleads that the Colbron agreement was to the effect that Colbron was to be paid an amount of "4% of the purchase price received ...". Clearly, according to Colbron's affidavit and the Defence, the time for payment was upon or immediately following completion. Paragraph 1(B) (a) of Colbron's Reply pleads that the amount was to be paid to Colbron "if the Applicant introduced a potential purchaser who ultimately purchased the leasehold of the Island." Paragraph 2 (A) (i) of Colbron's Reply pleads that the time for payment was "upon completion" and para 2 (A) (iii) pleads that the Sale agreement provided for completion seven days after the granting of the Minister's consent. I will refer to the significance of these discrepancies later. The next day, 5 October 1993, Colbron on the Gold Coast again telephoned Urch in Sydney. He told Urch that he had spoken to Alan Bond who was acting for his son, Craig, to whom Colbron had also spoken, that they were definitely interested, and that he (Colbron) wished to take them to St Bees Island to introduce them to Urch and Berck within the next few days. Urch told Colbron that Berck had agreed to the "facilitator's fee" and knew that Colbron was "not the agent or the solicitor for either party". Later that day (5 October 1993), Colbron on the Gold Coast telephoned Berck who was at St Bees Island. Berck said that he would "go along with" what Urch had agreed to in relation to Colbron's "introduction fee". Colbron said that he and Alan Bond, and Craig Bond would travel to St Bees Island soon from Sydney and added: "I take it that he [Urch] has made it clear that I have got to be at arms [sic] length and the parties will do their own deal. I am just a facilitator to provide information and get you together for a meeting. I am not the Bond's [sic] solicitor and I am not acting as a solicitor in the deal." On 11 October 1993 Colbron travelled by helicopter to St Bees Island with Alan Bond whom he introduced to Berck and Urch. There was a discussion for some two hours for most of which Colbron was present. The facts as to the role played by Colbron in this meeting are not before me. Urch produced a large number of documents to Alan Bond. At lunch later in the day a price of $6.5 million was agreed on. Alan Bond said that he was representing his son Craig, that the purchaser would be a shelf company (no doubt, Whitsunday), and that its solicitor would be Bill Redmond. Alan Bond said, "The solicitors will need to get together to nut out the terms and naturally it is subject to the solicitors agreeing to the terms." During October and November 1993, Colbron "facilitated and participated in negotiations between the Vendors and Whitsunday for the purchase of the Island" (Defence para 2 (f) and Reply para 1 (C)). The nature and place of this facilitation and participation in October and November 1993 does not appear. It may have been all in Queensland, all in New South Wales, or partly in one State and partly in the other. By 29 November 1993 the Vendors and Whitsunday had agreed on a reduced price of $6,000,000. On that date they entered into the Sale agreement. However, the Sale agreement did not proceed smoothly to completion. There was a dispute between the Vendors and Whitsunday arising out of allegations by Whitsunday that the Vendors were in breach of warranties given by them in the Sale agreement as to the state of development approvals in relation to St Bees Island. At a meeting at Colbron's office in Sydney attended by Urch and his solicitor Mr Rodgers representing the Vendors, and Alan Bond and Whitsunday's solicitor Mr Bill Redmond representing Whitsunday, Mr Redmond tabled a list of alleged breaches of warranties and Mr Bond tabled a paper containing a revision downwards of the purchase price to be paid. In January and February 1994 there were negotiations between the Vendors and Whitsunday as to "compensation" by way of reduction of the purchase price. In the period from early January 1994 to 14 March 1994 Colbron participated in the negotiations. Again, the nature and place of his "participation" down to late February 1994 is not revealed. It may have been all in Queensland, all in New South Wales, or partly in Queensland and partly in New South Wales. As at late February 1994 the negotiations were inconclusive. According to the Particulars, by then it had become apparent that unless the Vendors and Whitsunday continued to negotiate, the Vendors' leases of St Bees Island would be the subject of forfeiture by the Queensland Department of Lands. Accordingly, in late February and early March Colbron "participated in negotiations with the [Vendors] as to the amount of compensation adjustment by way of reduction in purchase price ..." (Colbron's Defence to Cross-Claim, sub-para 5 (c)). According to the Particulars, Colbron participated first in Sydney by telephone, then at St Bees Island and then Mackay for the purpose. At various times the Vendors were represented by Peter Dwyer of Anderson Brody (the Vendors' Queensland solicitors), Berck and Mrs Berck. At various times Whitsunday was represented by Alan Bond, Peter Holsworth and Whitsunday's solicitor, Bill Redmond. As part of his participation, Colbron faxed a letter dated 2 March 1994 to Peter Dwyer of Anderson Brody. A copy of that letter is annexed to these Reasons. According to the Particulars, at St Bees Island and Mackay, Colbron "acted as a facilitator to convey" offers from the Vendors to Whitsunday and from Whitsunday to the Vendors. The result of the negotiations was that Whitsunday agreed to accept a lesser amount of compensation than it had been insisting upon. According to Colbron's Defence to Cross-Claim (sub-paras 5 (e) and (g)) on 9 March 1994 the Vendors and Whitsunday executed a "varied agreement" which was completed on 14 March 1994. By Colbron's Reply (para 1 (D) (iv)), however, Colbron both denies that the Sale agreement was terminated and pleads that the Vendors and Whitsunday "purported to mutually rescind the agreement made on 29th November, 1993 and substitute [sic - "replace"] the said agreement with a further agreement made on 14th March, 1994"! According to both pleadings, an amount of $122,134.05 previously paid by Whitsunday under the Sale agreement was acknowledged as part payment of the deposit of $200,000.00 payable by Whitsunday under the varied or substituted (as the case may be) agreement of March 1994. LEGISLATION I set out below the provisions of the Queensland and New South Wales Acts relied on by the Vendors in their submissions (the emphasis is mine)in the form which, the parties agreed, was applicable at the relevant time. The Vendors sought leave to amend their Defence in certain minor respects to make the references in it to statutory provisions accord with those which appear below. Colbron resisted this course but pointed to no prejudice other than the fact that there was additional matter to deal with on the hearing. The amendments caused no prejudice to Colbron who had adequate opportunity to address, and did address, on the hearing of the questions for separate decision, the issues of law raised by all the statutory provisions referred to. Auctioneers and Agents Act 1971 (Qld) ("the Queensland Act"). Subsection 5 (1): "'Real estate agent' means any person who, as an agent for others, and whether on commission or for or in expectation of any fee, gain, or reward, and either alone or in connection with any other business, and either generally or in respect of any 1 transaction, exercises or carries on or advertises or notifies or states that the person exercises or carries on or that the person is willing to exercise or carry on or in any way holds the person out as ready to undertake the business of buying, selling, exchanging, or letting houses, land, or estates, or negotiating for such buying, selling, exchanging, or letting, ... " Paragraph 14 (4) (a): "14.(4) Subject to this Act, no person (either alone or as a member of a partnership) - (a) shall act as a real estate agent unless the person is the holder of a real estate agent's licence; or ... " Paragraph 62 (1) (a) and (c): "62.(1) It shall not be lawful for-- (a) any ... real estate agent ... to purchase or be in any way concerned or beneficially interested in the purchase of any property ... placed in the person's hands ... for sale privately or by auction or on commission by any principal without having obtained the consent in writing in the prescribed form of such principal to such purchase before the making of the agreement relating to such purchase; ... (b) ......................................... (c) any ... real estate agent ... to charge commission to the principal in respect of any property that is taken over by such ..., real estate agent ... as a purchaser or for the person's own use or in respect of any property that is the subject of a purchase in which the ..., real estate agent ... is beneficially interested ... Maximum penalty-- (a) in the case of an individual--$5 000; or (b) in the case of a corporation--$10 000. (2) ............................................ (3) Where an offence against subsection (1) has been committed, the ... real estate agent, ... shall, upon conviction, and in addition to any other penalty the court may impose, be ordered by the court to pay over to the convicted person's principal such amount in respect of profits resulting from the purchase in respect of which the offence was committed as is determined by the court." Paragraphs 70 (1) (a) and (c): "70.(1) No person shall be entitled to sue for or recover ... any fees, charges, commission, reward, or other remuneration for or in respect of any transaction as ... a real estate agent, ... unless - (a) at the time of the transaction the person was the holder of a licence as ... a real estate agent, ... under this Act; and (b) ............................................ (c) the engagement or appointment to act as ... real estate agent ... in respect of such transaction is in writing signed by the person to be charged with such fees, charges, commission, reward, or remuneration, or the person's agent or representative; and (d) ............................................" Sub-section 71A (1): "No person shall, whether on commission or for or in expectation of any fee, gain or reward, supply or undertake to supply or advertise or hold out in any manner that the person will supply to any person addresses or other particulars of - (a) houses that are to let; or (b) houses, land or estates that are for sale; unless the first person is the holder of a real estate agent's licence and has obtained the consent of the landlord, or as the case may be, the vendor to supply the particulars." Paragraph 130 (1) (a) "130.(1) Any person who contravenes any provision of this Act shall be guilty of an offence against this Act and shall be liable, if no specific penalty is prescribed for that offence, to a penalty not exceeding-- (a) in the case of an individual --$2,000 or imprisonment for a term not exceeding 6 months, or to both such fine and imprisonment; ..." Property, Stock and Business Agents Act 1941 (NSW) ("the New South Wales Act"). Sub-section 3 (1): "'Real estate agent' means a person (whether or not the person carries on any other business) who, for reward (whether monetary or otherwise), carries on business as an agent for: (a) inducing or attempting to induce or negotiating with a view to inducing any person: . to buy, sell, exchange, lease, assign or otherwise dispose of any land; or . to make an offer to buy, sell, exchange, lease, assign or otherwise dispose of any land; or . to accept an offer to buy, sell, exchange, lease, assign or otherwise dispose of any land; or . to enter into a contract for the buying, selling, exchanging, leasing, assigning or other disposal of land; or (b) buying, selling, exchanging, leasing, assigning or otherwise disposing of any land, ... (c) ................................................ (d) ..............................................." Paragraph 20 (1) (a): "20.(1) A natural person must not act as or carry on the business of (or advertise, notify or state that the person acts as or carries on or is willing to act as or to carry on the business of): (a) a real estate agent, unless the person is the holder of a real estate agent's licence; or (b)-(f) ........................................" Paragraph 42 (1) (a): "42.(1) Subject to this Act, no person shall be entitled to bring any proceeding in any court to recover any commission, fee, gain or reward for any service performed by him: (a) as a real estate agent, unless the person was the holder of a real estate agent's licence, or employed such a holder, at the time of performing the service: ... " Sub-sections 87 (1) and (2) "87.(1) Every person who commits any contravention of or fails to comply with any of the provisions of this Act shall be guilty of an offence against this Act. (2) Where no penalty is specially provided for any offence against this Act any person guilty of such offence shall be liable, if a corporation, to a penalty not exceeding 40 penalty units, and, if an individual, to a penalty not exceeding 20 penalty units." THE CASE GENERALLY The formulation of the questions for separate decision assumes that the Colbron agreement can be appropriately analysed in terms of offer and acceptance and may assume that the place of acceptance is the place where the Colbron agreement was made. In the view which I take, it is not necessary for me to consider these matters. The reason is that, in my opinion and as submitted by the Vendors, the various statutory provisions are directed to conduct of the kinds described in them respectively having an appropriate territorial connection with the State in question (cf Kay's Leasing Corporation Pty Ltd v Fletcher (1964) 116 CLR 124 esp at 134 (Barwick CJ, McTiernan and Taylor JJ), 143 (Kitto J)). For example, para 14 (4) (a) of the Queensland Act is directed to a person's acting as a real estate agent in Queensland. So much is established by Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 ("Freehold") in which the High Court considered relevantly similar provisions in The Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts, 1922 to 1961 (Qld). Similarly, in my opinion, sub-s 70 (1) of the Queensland Act is directed to a transaction in respect of which the person has acted as a real estate agent in Queensland where that "acting" is said to entitle him or her to the remuneration sued for or sought to be recovered. The other prohibitions referred to are to be construed in a similar manner. In my opinion, the Assumptions, Colbron's affidavit, the Pleadings and Particulars do not enable me to say that Colbron conducted himself in New South Wales in any of the ways referred to in para 20 (1) (a) of the New South Wales Act. That provision and para 42 (1) (a) of the same Act depend on the definition of "real estate agent" in sub-s (3) (1). Essential to the definition of "real estate agent" in the New South Wales Act is the notion of the carrying on of a business - a notion which requires some continuity or repetition. I will assume that the course of activity denoted by the "carrying on" of a business can exist within the confines and for the purposes of a single transaction: cf Mercer v Dalley [1934] VLR 14 (Vic/Lowe J); Farrell v Bannister (1952) 52 SR (NSW) 73 (NSW/FC). Nonetheless, on the basis of facts revealed by the Assumptions, Colbron's affidavit, the Pleadings and the Particulars alone, I do not think that it can be concluded that in New South Wales he carried on business of the kind referred to in the definition. It follows that the provisions of the New South Wales Act referred to earlier may henceforth be ignored. The definition of "real estate agent" in the Queensland Act contains the expression, "either generally or in respect of any one transaction". This expression was considered in Freehold. The High Court held that a person who, in respect of one transaction, engaged in conduct which, if engaged in repeatedly, would constitute the carrying on of the business of a real estate agent, falls within the definition. In conformity with that decision, if Colbron, in Queensland, in respect of the "transaction" the subject of these proceedings, did acts which, if done repeatedly, would constitute the carrying on of a business described in the definition, he falls within the definition of "real estate agent" in the Queensland Act and acted as such in respect of the subject transaction. Colbron did not submit that if he would be disentitled in a Queensland court by reason of the application of the provisions of the Queensland Act, the defence provided by those provisions should not be recognised in this Court. It is common ground that Colbron was not at the time of the transaction the holder of a licence (it was also common ground that there was no engagement or appointment of him in writing). Paragraphs 14 (4) (a) and 70 (1) (a) and (c) of the Queensland Act If a person acted repeatedly in the ways in which Colbron in fact acted in Queensland, would he or she have acted as a "real estate agent" (as defined in sub-s 5 (1) of the Queensland Act) in respect of the subject transaction? The submissions which Colbron put in favour of a negative answer to this question were: (i) that it is an essential element that the person should have authority to commit the client contractually, and Colbron lacked such authority; (ii) that the possibility that Colbron acted as a real estate agent in the instant transaction is excluded by the fact that it was an express term of the Colbron agreement that Colbron would not be acting as agent of either the Vendors or the purchaser; (iii)that Colbron did not, in Queensland, exercise or carry on, even in respect of this one transaction, a business activity which could be described as "buying", "selling" or "negotiating for" buying or selling, for the purposes of the definition of "real estate agent" in sub-s 5 (1) of the Queensland Act; and (iv) that in any event Colbron did not act "as an agent for others" for the purposes of the definition of "real estate agent" in sub-s 5 (1) of the Queensland Act. I will deal with these submissions in turn. "(i) that it is an essential element that the person should have authority to commit the client contractually, and Colbron lacked such authority". Colbron's submission is that in order that it might be said that a person, as an agent for others, exercises or carries on a business of buying or selling land or estates, or negotiating for such buying or selling, the person must have authority to commit the client contractually. According to the submission, it follows from this that the possession of such authority is also an essential characteristic of the "one transaction real estate agent". Professional real estate agents acting in respect of the sale or purchase of real estate commonly lack authority to commit their clients contractually (cf Davies v Sweet [1962] 1 All ER 92 (CA) at 94F (Danckwerts LJ); J R Murdoch "The Nature of Estate Agency" (1975) 91 LQR 357 at 357; FMB Reynolds, "Agency: Theory and Practice" (1978) 94 LQR 224 at 228). If the presence of such authority was required by the words "as an agent for others", the legislation would fail to catch the ordinary way in which professional real estate agents carry on business. It is not lightly to be supposed that the legislature intended this result. Further, no reason suggests itself as to why the presence of authority to commit contractually would be required before it could be said that a person had, as an agent for others, negotiated for the buying or selling of land. The point is that whereas the language "buying, selling, exchanging, or letting houses, land, or estates" suggests transactions which, by one means or another, take effect, the notion of "negotiating for" such a result is something antecedent to it. Authority to commit contractually is irrelevant to the idea of negotiating for the buying, selling, exchanging or letting referred to. Although cases decided on the entitlement of real estate agents to commission depend upon construction of the individual contracts of retainer and the work done in the particular case, it is not amiss to note that it has commonly been held that the authority of particular real estate agents has not embraced authority to commit the principal to a sale and has not extended beyond authority to introduce prospective purchasers, the commission being earned when that introduction is the effective cause of the sale in question: cf Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571 (Qld/FC) esp at 581 (McPherson J); Max Christmas Real Estate Pty Ltd v Schumann Marine Pty Ltd [1987] 1 Qd R 325 (Qld/FC) esp at 334 (McPherson J); Simpson v Sawtell (1953) 53 SR (NSW) 251 (NSW/FC) at 256; Sharpley v Ward [1944] NZLR 661 at 666-667; Williams & Co Pty Ltd v Bond [1965] VR 610 (Vic/O'Bryan J) at 613. "(ii) that the possibility that Colbron acted as a real estate agent in the instant transaction is excluded by the fact that it was an express term of the Colbron agreement that Colbron would not be acting as agent of either the Vendors or the purchaser". In my view, whether Colbron "as an agent for others ... in respect of any one transaction, exercise[d] or carrie[d] on ... the business of buying [or] selling, ... land ... or negotiating for such buying, [or] selling ... " is not concluded by the fact that it was a term of the agreement between him and the Vendors that if he introduced a purchaser to them, he would not be acting as agent of either of them or of the purchaser. On the contrary, in my opinion it is possible for a person to act "as an agent for others" for the purposes of the definition, notwithstanding such an express term. It is not uncommon for parties to seek, by express agreement, to avoid certain unwanted consequences of particular categories of legal relationship, such as that of employer and employee (Australian Mutual Provident Society v Allan (1978) 52 ALJR 407 at 409 (PC) citing with approval Lord Denning MR in Massey v Crown Life Insurance Co, unreported, 4 November 1977) and that of partnership (Ex parte Delhasse; In re Megevand (1878) 7 ChD 511 (CA)). Many legal relationships can exist notwithstanding an express disclaimer of that relationship in terms by the parties. In relation to agency Lord Pearson observed in Garnac Grain Company Incorporated v H M F Faure & Fairclough Ltd [1968] AC 1130 at 1137 (HL), "The relationship of principal and agent can only be established by the consent of the principal and the agent. They will be held to have consented if they have agreed to what amounts in law to such a relationship, even if they do not recognise it themselves and even if they have professed to disclaim it, as in Ex parte Delhasse." The meaning and effect of the term referred to in Assumption (b) (ii) in the present case are not obvious. One possibility is that the term signifies that Colbron was not to have authority to commit either party contractually. If that is its meaning, it will be clear from what I have said in (i) above that the term does not prevent a conclusion that a person has acted in the ways referred to in the definition of "real estate agent" as an agent for others. Another possibility is that the term signifies that the parties intended that Colbron was not to fall within the very definition in question in this case. If so, in my view it does not achieve that purpose. Whether a person acts in a way described in the definition as an agent for others is a question of mixed law and fact and is not concluded by the mere terms of the parties' agreement. The question to be answered is whether Colbron's introduction, with the Vendors' consent, of the potential purchaser to the Vendors, his bringing Whitsunday's representative (Alan Bond) to St Bees Island to meet Berck and Urch, and his subsequent facilitation of and participation in negotiations, signify that he negotiated as an agent for others for the buying or selling of the Island. Contrary to Colbron's submission, the question is not whether the Vendors consented to Colbron's falling within the legal classification called "agent". If "consent" be an essential element of agency (see below) the question is whether there was consent to Colbron's doing things which in fact and in law constitute his acting as an agent for others. "(iii)that Colbron did not, in Queensland, exercise or carry on, even in respect of this one transaction, a business activity which could be described as 'buying', 'selling' or 'negotiating for' buying or selling, for the purposes of the definition of 'real estate agent' in sub-s 5 (1) of the Queensland Act". Colbron did not "buy" or "sell" the Island. It must be considered whether he "negotiated for" such buying or selling. According to the Assumptions, Colbron's affidavit, the Pleadings and the Particulars, Colbron in Queensland made the telephone calls on 3, 4 and 5 October referred to earlier securing the Vendors' agreement to pay him for introducing a potential purchaser who purchased the Island; took Whitsunday's representative, Alan Bond, to St Bees Island on 11 October, introduced him there to Berck and Urch and remained present throughout some two hours of negotiation; participated in unidentified ways in negotiations in January and February 1994; when the parties were at a stalemate by the end of February 1994, caused his fax dated 2 March 1994 to be received by the Vendors' Queensland solicitor; and in late February and early March 1994, at St Bees Island and Mackay, conveyed offers and counter offers between the parties. He did all this with the Vendors' authority. Dictionary definitions of "negotiate" include the following: "The Macquarie Dictionary (2nd Revised Edition), (1987) negotiate ... v.i. 1. to treat with another or others, as in the preparation of a treaty, or in preliminaries to a business deal - v.t. 2. to arrange for or bring about by discussion and settlement of terms: to negotiate a loan. ..." "The New Shorter Oxford English Dictionary, (1993) negotiate ... 1 v.i. a Communicate or confer (with another or others) for the purpose of arranging some matter by mutual agreement; have a discussion or discussions with a view to some compromise or settlement. ... b Do business, engage in commerce. ... 2 v.t. a Conduct a negotiation or negotiations about (a matter, affair, etc.) ... b Arrange for, obtain, or bring about by negotiation. ..." Colbron's acts in Queensland were "for", in the sense that they were directed to, the buying or selling of the Island. What he did seems, prima facie, to be no different from what many professional real estate agents do. Detailed evidence of what he did would, no doubt, make the position clearer, one way or the other. But, for reasons which appear below, I refrain from reaching a final view on the question whether Colbron's acts in Queensland, as revealed for present purposes, constituted "negotiation". "(iv) that in any event Colbron did not act 'as an agent for others' for the purposes of the definition of 'real estate agent' in sub-s 5 (1) of the Queensland Act". According to Bowstead: " ... Agency is the fiduciary relationship which existed between two persons, one of whom expressly or impliedly consents that the other should act on his behalf, and the other of whom similarly consents so to act or so acts." (Bowstead (15th ed, 1985) at 1). According to the American Restatement of the Law of Agency (Restatement, Second, Agency (1958) para (1)), agency is: " ... the relationship which results from the manifestation of consent, by one person to another, that the other shall act on his behalf and subject to his control, and consent by the other so to act." Fridman, on the other hand, contends that the hallmark of an agency relationship is not the principal's consent but the power of the agent to affect the principal's legal relations with the outside world (G H L Fridman, The Law of Agency (6th ed, Butterworths, 1990), Ch 1). It is the expression "as an agent for others" in the particular context of the definition of "real estate agent" in sub-s 5 (1) of the Queensland Act with which I am concerned. I do not accept that whether Colbron's conduct was "as an agent for others" is concluded by Freehold. The words "as an agent for others" clearly mean at least "not as party principal", that is to say in the present context, not as vendor or purchaser. For reasons which appear below, I refrain from reaching a final view as to whether Colbron acted "as an agent for others". My tentative view is that these words have a meaning related to the meaning of the expression "real estate agent" as it is commonly understood, and so catch at least a person who is authorised by a landowner to introduce prospective purchasers, who does so and who then participates in the process by which the landowner and prospective purchaser come to terms by conveying offers and counter offers. Again, in this respect too the relationship between Colbron on the one hand and the Vendors and Whitsunday respectively on the other hand seems not to have been substantially different from the relationship between a professional real estate agent on the one hand and the landowner-client and a prospective purchaser respectively on the other hand. However, Colbron's submissions (iii) and (iv) raise difficulties. Paragraph 70 (1) (a) of the Queensland Act requires a "transaction" to be identified. The transaction in this case may have come to an end at the point of time when Colbron is said, on his case, to have earned his fee. On the other hand it may have extended to completion of the Sale agreement. At least it is a relevant consideration for me to know what the "fee earning event" was and when it occurred. As noted earlier, there is no agreement between the parties as to this, and Colbron's own Pleadings and Particulars themselves do not speak with one voice on the matter. Of course, I cannot resolve the issue in the context of deciding the separate questions. If Colbron's case should be regarded as being that he became entitled to the fee once Whitsunday entered into the Sale agreement on 29 November, the Minister's approval was given, and a further seven days passed (that is to say, irrespective of whether the Sale agreement proceeded to completion subsequently) there is at least a question whether "the transaction", for the purposes of para 70 (1) (a), encompasses subsequent events, and in particular, whether it encompasses or allows to be considered Colbron's subsequent "facilitation" of, and "participation" in, negotiations. Moreover, in relation to all provisions of the Queensland Act which depend upon the definition of "real estate agent" a careful consideration of the Pleadings and the Particulars (these were not explored in detail on the hearing) has convinced me that it is unsatisfactory to determine whether Colbron negotiated for the buying or selling of the Island in the context of the artificial "half facts" presented by those documents, the Assumptions and Colbron's affidavit. To hold that Colbron "negotiated" in Queensland for the subject sale or purchase, I would have to hold that the telephone conversations from the Gold Coast on 3, 4 and 5 October, the taking of Alan Bond to meet Urch and Berck on St Bees Island on 11 October 1993, the "participation" in and "facilitation" of negotiations by the conveying of offers and counter offers directed to "saving" the transaction from late February 1994 to 14 March 1994 and the causing of his facsimile transmission dated 2 March 1994 to be received by the Vendors' solicitor in Queensland, necessarily and in the absence of any further context, constitute "negotiating" for the buying or selling of the Island by the Sale agreement. In context, they may well do so but in the absence of any context I am not prepared to hold that they necessarily do so. I have formed the view that those defences of "statutory illegality" which depend upon the definition of "real estate agent" in the Queensland Act should be dealt with on a final hearing when all relevant evidence is before the Court. Unfortunately, in my view, for the foregoing reasons it has proved inappropriate to deal with Colbron's submissions (iii) and (iv) in the context of the decision of the separate questions. Paragraphs 62 (1) (a) and (c) of the Queensland Act Assumptions (g) and (h) are relevant to the issues raised by paras 62 (1) (a) and (c) of the Queensland Act. Colbron's affidavit, the Pleadings and the Particulars do not significantly add to them. Paragraphs 62 (1) (a) and (c) make unlawful the kinds of conduct referred to in them if engaged in by "any ... real estate agent". In the earlier discussion of paras 14 (4) (a) and 70 (1) (a) and (c), I rejected Colbron's submissions (i) and (ii) in support of the proposition that he did not act as a real estate in respect of the subject transaction. I did not reach a concluded view on his submissions (iii) and (iv). In relation to para 62 (1) (a), my tentative view is that although Colbron was at least, "concerned in" the purchase of the Island (cf Lees v Fleming [1980] Qd R 162 (Qld/Conolly J)), it cannot be said that the Vendors "placed [the Island] in [Colbron's] hands for sale" for the purposes of para 62 (1) (a). In relation to para 62 (1) (c), Assumption (h) is relevant. That Assumption is that it was agreed in November 1993 between Colbron and Whitsunday that Whitsunday would transfer to Colbron an unidentified block of land "on St Bees Island" once St Bees Island was developed by Whitsunday. Colbron has not taken over the Island as a purchaser or for his own use. But is he "beneficially interested" in it? This raises questions of some difficulty. I am not asked to assume that Whitsunday undertook, expressly or by implication, to develop St Bees Island at all. I am certainly not asked to assume that it agreed to do so in accordance with any particular development plan. Neither the dimensions nor the location of the proposed "block of land" referred to in Assumption (h) are specified. There is therefore a real question whether Colbron was "beneficially interested" in the Island. My tentative view is that he is not. Paragraphs 62 (1) (a) and (c) depend upon a conclusion that Colbron was a "real estate agent". For the reasons given above whether he was is inappropriate to be determined in the context of the decision of the separate questions. Sub-section 71A (1) of the Queensland Act Sub-section 71A (1) prohibits any "person" from acting in the ways described in that sub-section. At some time not identified in the Assumptions, Colbron's affidavit, the Pleadings or the Particulars, Colbron may have supplied the address of St Bees Island or particulars of the Island to Whitsunday. Those documents do not make it clear that he did so, or if he did, that he did so "in expectation of any fee, gain or reward". It is conceivable that the representatives of Whitsunday were already aware of the address and particulars of St Bees Island prior to Colbron's first telephone call to Urch on 3 October 1993. It is also conceivable that Colbron himself had, prior to the making of the Colbron agreement, supplied them with the address and the particulars at a time when he had no expectation of any fee gain or reward. The Vendors submitted that Colbron both undertook and held out to them that he would supply particulars of their leases to the potential purchaser. According to para 3 of Colbron's affidavit, in his first telephone call on 3 October 1993, he requested Urch to send him copies of the leases. It does not appear whether they were sent and if so whether Colbron supplied them or copies or particulars of them to Whitsunday. It is difficult to conceive of any purpose which Colbron could have had in requesting copies of the leases other than to supply them or copies or particulars of them to the prospective purchaser with whom he was in contact. I accept that in this first telephone conversation Colbron held out that he had an intention of supplying particulars of the Island to the prospective purchaser. But my tentative view is that he did not undertake or represent that he "would" do so. The plural form of "addresses", "houses", "estates" and "are" in sub-s 71A (1) suggests that the sub-section is directed to activity of the kind referred to in respect of more than one property. Although it is possible to select the words "particulars" and "land" and thereby to frame a prohibition relating to any single property, I doubt that this is the correct construction of the sub-section. The plural "are", in particular, suggests that the word "land" is being used in a generic sense rather than as signifying a parcel of land. I do not find it necessary to resolve the questions referred to above because, in my view, even if Colbron contravened sub-s 71A (1), this did not disentitle him to the fee claimed. The sub-section is not directed to the making or performance of a contract to the effect that if a person introduces a prospective purchaser to a landowner and a sale results, the introducer will be paid a fee calculated as a percentage of the price. The Colbron agreement can usefully be considered in the context of the four classes of contract referred to by Gibbs ACJ in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410. The Colbron agreement was one under which Colbron promised nothing but was himself promised a fee if he introduced a person who purchased the Island. Accordingly, and firstly, the Colbron agreement was not a contract to do something which sub-s 71A (1) forbade. Secondly, the Colbron agreement was not one which sub-s 71A (1) expressly or impliedly prohibited. Thirdly, the Colbron agreement was not one which, although lawful on its face, was made in order to effect a purpose which sub-s 71A (1) rendered unlawful (the supply of the address or particulars). Fourthly, the Colbron agreement is arguably a contract which might be "performed" in a manner which sub-s 71A (1) prohibited (even this is not clear since Colbron did not promise to do anything), in that in the course of introducing the prospective purchaser, Colbron might supply the address and particulars of the Island. But if Colbron contravened sub-s 71A (1), there is a sanction provided by sub-ss 87 (1) and (2), namely the commission of an offence and liability to a penalty. The position is akin to that in Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 in that the legislation does not reveal an intention to render unenforceable an agreement, such as the Colbron agreement, merely because, in the course of introducing a prospective purchaser the introducer might contravene sub-s 71A (1). Support for this view is found in the fact that the sanction of deprivation of fees is provided for expressly in s 70 and it is reasonable to think that if the legislature had intended that sanction as well as the penalty under s 130 to be attracted by contravention of s 71A, it would have said so. CONCLUSION Although it would be possible consistently with the foregoing reasons, to answer in complex and heavily qualified form some of the questions posed, the answers would serve little purpose other than, perhaps, to encapsulate in short form those reasons. I think it better not to answer any of the questions. In those circumstances I propose to set aside the order made on 19 December 1994. Unfortunately, it emerges that that order has been of little utility. A minor achievement is that certain arguments have been put and dealt with - a fact which may narrow the area of controversy and some time on the final hearing. The case illustrates the not uncommon experience of difficulties arising from a course of attempting to resolve a litigious dispute in a piecemeal fashion. In relation to costs, the appropriate order is that the costs of the hearing of the questions ordered to be separately decided be the parties' respective costs of the proceedings. The proceedings will now be listed for the making of orders directed to ensuring that the matter is ready for a final hearing and that the final hearing takes place as soon as practicable. I certify that this and the preceding 34 pages are a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 3 March 1995 Heard: 19 December 1994 Place: Sydney Decision: 3 March 1995 Appearances:Mr W Colbron of Colbron & Associates appeared as and for the applicant. Mr S Burchett of counsel instructed by Brock Partners appeared for the first to fourth respondents.