Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2

HIGH COURT OF AUSTRALIA

GLEESON CJ,

McHUGH, GUMMOW, KIRBY AND CALLINAN JJ

MONEYWOOD PTY LTD APPELLANT

AND

SALAMON NOMINEES PTY LTD RESPONDENT

Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2

8 February 2001

B22/2000

ORDER

1. Appeal allowed with costs. 2. Orders of the Court of Appeal of Queensland made on 22 December 1998 set aside. In lieu thereof, order that the appeal to that Court be dismissed with costs.

On appeal from the Supreme Court of Queensland

Representation:

W Sofronoff QC with K Buxton for the appellant (instructed by Russell and Company)

P A Keane QC with L D Bowden for the respondent (instructed by Brown & Fowler)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Moneywood Pty Ltd v Salamon Nominees Pty Ltd

Principal and agent – Commission – Action for recovery of commission by agent – Sale of property – Whether agent was effective cause of sale – Whether engagement or appointment of agent complied with s 76(1)(c) of the Auctioneers and Agents Act 1971 (Q).

Contract – Written agreement to engage agent and oral agreement to pay commission – Terms of the contract – Whether commission payable in respect of sale of part only of the property – Whether appointment of agent complied with s 76(1)(c) of the Auctioneers and Agents Act 1971 (Q).

Words and phrases – "effective cause" – "implied terms" – "evidenced in writing".

Auctioneers and Agents Act 1971 (Q), s 76(1)(c).

1. GLEESON CJ. The issues in this appeal concern a real estate agent's disputed claim to commission. The appellant was engaged as agent by the respondent, and found a purchaser, BMD Constructions Pty Ltd ("BMD"), which entered into a contract to purchase land from the respondent. The contract identified the appellant as the vendor's agent. That contract was never completed, and there was no commission payable in relation to it. By a later contract, which was completed, and which made no reference to the appellant, BMD agreed to purchase, for a lesser sum, part of the land which was the subject of the first contract. The dispute is as to whether the appellant was entitled to commission on the sale price under the second contract. 2. The detailed facts and circumstances surrounding the appointment of the appellant as agent, and the dealings between the respondent and BMD, are set out in the reasons for judgment of Gummow J. At first instance, in the District Court of Queensland, Botting DCJ found in favour of the appellant[1]. By majority (de Jersey CJ and Chesterman J; McPherson JA dissenting), that decision was reversed in the Court of Appeal[2]. 3. The issue upon which the Court of Appeal found against the appellant was whether there had been satisfaction of a condition on the right of recovery of commission imposed by s 76(1)(c) of the Auctioneers and Agents Act 1971 (Q) ("the Act"). That was the principal issue in the appeal to this Court. 4. The appellant established that it was appointed as agent by the respondent, in relation to the sale the subject of the first contract, and that such appointment complied with the requirements of the Act. The appellant also satisfied both the trial judge, and all the members of the Court of Appeal, that the work it performed in its capacity as agent in relation to the first contract was an effective cause of the sale the subject of the second contract. 5. The finding of Botting DCJ on that matter was as follows: