Freehold Land Investments Ltd v Queensland Estates Pty Ltd [1970] HCA 31

High Court of Australia Barwick C.J. McTiernan, Menzies, Owen and Walsh JJ. Freehold Land Investments Ltd v Queensland Estates Pty Ltd [1970] HCA 31

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 31 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Walsh. As I agree both with the conclusion to which my brother Walsh comes and the reasons which he gives for his conclusion, I find no need to add anything on my own behalf. I agree that the proper conclusion from the evidence as a whole is that the appellant in procuring the execution of the contract of sale between the respondent and Golden Acres Ltd. did act in Queensland as a real estate agent within the meaning and operation of The Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Acts, 1922 to 1961 Q. and that this appeal should be dismissed.

McTiernan J.

I am of opinion that the appeal should be dismissed.

It is an appeal from a decision of Hoare J. in proceedings in the Supreme Court of Queensland in which the appellant claimed to be entitled to obtain payment of part of a sum of money paid into court in another action in which the appellant was not a party. The appellant claimed the money, which was in the nature of part of instalment payments on a sale of land paid to a "prescribed authority" under s. 5 (c) of The Contracts of Sale of Land Act of 1933 Q., as commission pursuant to the provisions of a deed executed by the respondent, under which the appellant was to act as agent with "an exclusive world-wide franchise for the sole right to sell" a certain piece of land situated in Queensland. The deed stated that the agreement should be "deemed to be entered into in the Colony of Hong Kong". The respondent contended that the appellant was prevented from claiming the money by reason of s. 23 (1) of The Auctioneers, Real Estate Agents, Debt Collectors and Motor Dealers Act of 1922 Q.. That section provides that a real estate agent "shall not be entitled to sue for or recover or retain any fees, charges, commission, reward, or other remuneration for or in respect of any transaction", unless he has complied with certain conditions which, it is not disputed, have not been complied with. The relevant parts of the definition of real estate agent in s. 4 of the Act are as follows: