Gandy v Guardian Real Estate (NSW) Pty Ltd

1. [1]

   The plaintiffs in these proceedings, John Gandy and Vanessa Gandy, appeal and insofar as it is necessary to do so, seek leave to appeal, against a decision of the Local Court of New South Wales handed down by Magistrate George on 28 August 2015.

2. [2]

   The application relates to the question of whether the defendants were entitled to a commission on the sale of a property owned by the plaintiffs, the defendant having been the real estate agency acting on behalf of the plaintiffs for a sale which was not completed.

3. [3]

   The Gandys jointly owned a residential property situated at 24 Emperor Place, Kenthurst ("the Kenthurst Property"), which was purchased by them in July 2007.

4. [4]

   In November 2013, the Gandys contractually engaged the defendant, Guardian Real Estate Agency (NSW) Pty Ltd ("the Agency"), to sell the Kenthurst Property.

5. [5]

   The Auction Agency Agreement ("the Agreement") was signed by the Gandys on 25 November 2013. Clause 5 of the Agreement stated that the Agency was to be remunerated at a rate of 2%, inclusive of GST, of the selling price.

6. [6]

   The defendant introduced a prospective purchaser to the Gandys ("the purchaser"), who entered into a Contract for the Sale of Property in respect of the Kenthurst Property for the sum of $1,242,000.00 on 12 February 2014. Special conditions inclusive in the Contract for Sale provided for part-payment of the deposit within a 12 month completion period; the settlement date being 12 February 2015. As a result of this delayed settlement, a further special condition in the contract stipulated that the purchaser lease the Kenthurst Property from the Gandys for $1000.00 per week from the date of exchange until the date of settlement.

7. [7]

   On the date of settlement, the purchaser failed to pay the balance of the purchase moneys owed and failed to complete the contract. A Notice to Complete issued by the plaintiffs was not complied with and the plaintiffs terminated the sale agreement.

8. [8]

   The partial deposit already paid by the purchaser, an amount of $62,000.00, was forfeited by the Purchaser upon default. The Gandys were entitled to a further $62,100.00 under the contract for failure to complete, amounting to 10% of the purchase price, and unsuccessfully pursued the Purchaser for this amount.

9. [9]

   The property was soon after sold by the plaintiffs, through a different real estate agency, to another purchaser.

10. [10]

    The defendant sought payment from the plaintiffs of $25,000, being a fee it claimed was owed to it pursuant to the agency agreement, and as a consequence of the uncompleted contract for sale. On 20 March 2015, a letter was received by the Gandys from the solicitor for the Agency seeking the payment and attaching a draft Statement of Claim. The plaintiffs disputed the debt, and proceedings in the Local Court followed.

11. [11]

    To avoid confusion, I will refer to the plaintiffs (the defendants in the lower court proceedings) jointly as the Gandys, and the defendant (who was the plaintiff in the Local Court) as the Agency, when referring to both the Local Court proceedings, and those in this Court.

The Local Court Proceedings

1. [12]

   On 28 August 2015, Magistrate George sitting at the Parramatta Local Court heard and determined the claim filed by the Agency against the Gandys. The transcript of those proceedings forms part of the evidence before this Court.

2. [13]

   There was no dispute between the parties that the Gandys had signed an agency agreement on 25 November 2013 and the signed agency agreement was delivered by Mrs Gandy to the Agency. The agency agreement provided for the Agency to claim a commission on sale where the Gandys were entitled to the proceeds of any forfeited deposit, and the amount of the commission was equal to or less than the forfeited deposit.

3. [14]

   In defence of the Statement of Claim, the Gandys advanced a defence in which they asserted that they were not provided with a signed copy of the Agreement, as required by s 55(1)(c) of the Property Stock and Business Agents Act 2002 (NSW). It was additionally argued that the Agency had engaged in misleading and deceptive conduct by not disclosing its entitlement to a commission on a failed contract for sale, thus disentitling the Agency from payment of a commission.

4. [15]

   The Local Court proceedings turned on resolution of a number of factual issues: whether the Agency in fact provided a copy of the signed agreement to the Gandys; whether certain representations were made to the Gandys by the Agency, and relied upon by the Gandys, as to the purchaser's capacity to complete the contract for the sale of property; whether the Agency made any representation by silence to the Gandys in respect of the entitlement to a commission; and, ultimately, whether the Agency was entitled to the commission claimed.

5. [16]

   The evidence before the Local Court was by way of agreed fact, affidavit, and oral evidence. The Magistrate had the benefit of seeing those witnesses who gave evidence, including – critically – Mr Jobberns, the agent who dealt with the Gandys on the sale of their property, and Mrs Gandy, who had delivered the signed agreement to the Agency and claimed that she was not provided with a copy of it.

6. [17]

   Mr Jobberns deposed that the proposed agency agreement had been provided to the Gandys and they had taken the document away to consider and sign it. He told the court that Mrs Gandy attended the agency premises on the morning of 25 November 2013 and handed him the Agreement, signed by her and her husband on that date. His evidence was that he took the document to the photocopier and copied it, handing Mrs Gandy a copy for her records.

7. [18]

   An image of the signed agreement was “uploaded” to the Agency’s computerised record system four days later, on 29 November 2013.

8. [19]

   Mr Jobberns deposed that it was the practice of the agency that marketing and other activities which incurred a cost would not be commenced until the signed agency agreement had been obtained. He said that on 25 November 2013, after receiving the signed agreement, he had made a booking for the property to be photographed. This was marketing that incurred a cost to the agency.

9. [20]

   After he was challenged in cross-examination about that evidence, a “screen shot” of the agency agreement showing the date on which it was loaded into the agency’s computer record was identified and tendered in re-examination. The plaintiffs complain about the admission of the document into evidence.

10. [21]

    Mrs Gandy’s evidence was that she did not deliver the signed agency agreement on 25 November 2013 as she was not in Sydney on that day. She was employed as a flight attendant and was regularly out of Sydney and the State. She founded her claim that she could not have delivered the Agreement on that day on her work roster, which she had reviewed for the purpose of preparing her evidence. She said in evidence that she was working on 25 November 2013, flying from Sydney to Melbourne and thereafter to Perth. She said that she did not have leave until 27 November 2013.

11. [22]

    The effect of her evidence was that her work commitments were such that she could not have delivered the Agreement to the agency on 25 November 2013 because she was not in Sydney, and could not have done so for some days after that date. She contended that the Agreement was delivered in early December, and she was not given a copy of it.

12. [23]

    In cross-examination it was revealed that Mrs Gandy did not commence work until after 5pm on 25 November 2013. That cross-examination proceeded as follows:

13. [24]

    There was other evidence before the Local Court from the failed purchaser of the property, to the effect that he had the capacity to purchase the property, but his funding had been delayed and he had required a further period of a fortnight or so beyond the final date for completion. He defaulted on the contract when the additional time was not extended to him.

14. [25]

    The Magistrate received and read the documentary evidence, and heard the oral evidence. His Honour then heard the submissions of the parties and delivered his reasons ex tempore. Asserted failings in the reasons are complained of by the plaintiffs.

The Proceedings before the Supreme Court

1. [26]

   By way of summons filed in this Court on 25 September 2015, the Gandys seek to appeal the whole of the decision of the Local Court. Seven grounds of appeal were relied upon:

2. [27]

   Whilst the grounds advanced are numerous and multi-faceted, they all ultimately turn upon the legitimacy of the conclusions made by the Magistrate. Those conclusions, in turn, rest upon the assessment of the evidence placed before the court by the parties, and upon the adequacy of the reasons given for the conclusions made.

3. [28]

   In short, in his reasons the Magistrate did not accept Mrs Gandy’s evidence as to the failure of the Agency to provide her with a copy of the signed sales agreement, and did not accept that there had been any conduct by the Agency of the misleading and deceptive nature alleged by the Gandys. Although there was, as Mr Heath for the defendant in these proceedings expressed it, some delicacy in the way his Honour’s conclusions were framed, it is plain that the Magistrate did not accept Mrs Gandy as a reliable witness.

4. [29]

   That being the case, the first of the Gandys’ claims, that the Agency had failed to provide a copy of the signed agreement in accordance with the requirements of s 55(1)(c) of the Property Stock and Business Agents Act, necessarily failed.

5. [30]

   His Honour accepted the evidence of Mr Jobberns, and accepted that the Agency had made out its claim for commission payable on the failed contract for sale. His Honour was not persuaded that there had been any conduct by the Agency of a misleading and deceptive conduct.

The Question of Leave

1. [31]

   All grounds save ground 4 purport to raise errors of law. Ground 4 raises a ground of mixed fact and law.

2. [32]

   The jurisdiction of this Court to determine an appeal from a decision of the Local Court is grounded in ss 39 and 40 of the Local Court Act 2007 (NSW). An appeal may be brought as of right regarding questions of law, but the leave of the Court is required to determine questions of mixed law and fact.

3. [33]

   The Gandys argue that the Court’s leave is required only with respect to ground 4 while the Agency submits that each of the grounds is dependent upon a review of findings of fact, and thus the leave of the Court is required with respect to each of the seven grounds.

4. [34]

   There is considerable force in the defendant’s submission in that regard. Whilst framed as errors of law and clothed in the language of legal error, the appeal as a whole turns upon a contention that the Magistrate was wrong in concluding as he did that Mr Jobberns’ evidence was to be accepted, and in concluding that there had been no misleading or deceptive conduct by the Agency. The plaintiffs’ real complaint is with the findings of fact by the Magistrate, he having rejected the facts as they had asserted them to be.

5. [35]

   It is not possible to determine grounds 1 – 3 and 5 – 7 without consideration of the correctness of the conclusions of the Local Court in that regard, and to that extent, the proposed grounds raise issues of fact and law mixed.

6. [36]

   Whilst the line between a ground raising an error of law alone and one reliant upon mixed questions of fact and law can be blurred, the grounds advanced by the plaintiff are, in my view, more properly characterised as raising questions of both fact and law. To that extent, the Court’s leave is required to advance them.

7. [37]

   The question of leave to appeal was considered by Gleeson CJ in Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517, at [2]:

8. [38]

   In Be Financial Operations Trust v Das [2012] NSWCA 164 Basten JA outlined a number of matters of significance when considering a question of leave:

9. [39]

   This Court does not sit to re-determine questions of fact, or to re-hear factual disputes at large. That is particularly so where issues of credit of the principal witnesses are, as here, critical to the determination of fact.

10. [40]

    Although there is a degree of uncertainty as to whether the grounds are grounds reliant purely on error of law, or errors of fact are relevant to their determination, I am prepared to approach the matter on the basis that grounds 1 – 3 and 5 – 7 are brought as of right, whilst leave is required with respect to ground 4.

The Proposed Grounds

1. [41]

   These grounds can be dealt with together as they raise the same issues.

2. [42]

   As noted above, in delivering his ex tempore reasons the Magistrate rejected the evidence of Mrs Gandy, accepted that of Mr Jobberns, and rejected the defences advanced by the Gandys.

3. [43]

   On a fair reading of the whole of the Magistrate’s reasons – which I consider to include what was said in response to questions from counsel (T71 – T73 of 28 August 2015) – it is plain that his Honour simply did not accept the veracity of what had been advanced by the Gandys. Since their defence to the Agency’s claim (a defence which should perhaps have been advanced in part as a cross-claim) rested upon acceptance of the facts as advanced by the Gandys and of Mrs Gandys evidence, a rejection of the facts and evidence of the Gandys was a rejection of the defence of misleading and deceptive conduct.

4. [44]

   His Honour referred to the evidence that the Gandys had taken the agency agreement away with them and had had time to consider it. Clauses 5(i) and 5(vi) of the Agreement clearly set out the entitlement of the Agency to payment of commission on a failed sale where the vendor was entitled to the forfeited deposit, and the commission was equal to or less than the forfeited deposit.

5. [45]

   His Honour did not accept that the Agency had made any sort of false claims or representations as to the capacity of the purchaser to complete the contract. His Honour concluded that there was no evidence capable of establishing the contrary view.

6. [46]

   Whilst the Magistrate did not set out the detail of the claim, or every aspect of the relevant evidence, or necessarily draw together the basis of his rejection of the false and misleading conduct defence into one neat paragraph or section of his judgment, it was nevertheless there to be seen. It rested in his rejection of Mrs Gandy as a witness of truth.

7. [47]

   It may be that the “delicacy”, which I have earlier referred to earlier, led his Honour to state his conclusions in the way that he did, but they were plain nonetheless.

8. [48]

   It was open to his Honour to conclude that Mrs Gandy gave her evidence in support of her defence in a way intended to mislead. Her evidence about her asserted absence from Sydney on 25 November 2013 appeared to be designed to suggest that she could not have delivered the agency agreement on 25 November 2013, even though she had virtually the whole of that day in Sydney in which to do so.

9. [49]

   That fact was revealed only in cross-examination.

10. [50]

    The assertions relating to the capacity of the purchaser to complete the contract for sale seemed similarly hollow: the Magistrate referred to them as “supposed representations”, the reference in its context clearly being a dismissive one. He additionally referred to the question of provision of a copy of the agency agreement as the “only plausible defence”; again, this makes it clear that his Honour did not consider the remaining defence to be a plausible one.

11. [51]

    It is clear that his Honour considered the defence, but was simply not persuaded by the Gandys’ case as to misleading and deceptive conduct, in all likelihood regarding it as lacking in credibility.

12. [52]

    It was entirely open to his Honour on the evidence to so conclude.

13. [53]

    His judgment was delivered ex tempore in the very busy atmosphere of the Local Court at Parramatta. He stated clearly that there was no misleading and deceptive conduct, there being no evidence capable of supporting the defence. In the circumstances of this case, as a small claim dealt with quickly in a busy Local Court, more should not have been required.

14. [54]

    These grounds are without substance.

15. [55]

    This ground can be quickly dealt with because it is entirely without merit. The ground seems to mistake the piece of paper upon which the screen shot was reproduced, and the contents of the piece of paper.

16. [56]

    The Gandys contend that the screen shot was precluded from admission into evidence by s 69(3) of the Evidence Act 1995 (NSW). That section is in the following terms:

17. [57]

    The screen shot of the signed agency agreement was admitted into evidence during re-examination of Mr Jobberns. His evidence as to the date of receipt of the signed agency agreement was disputed, as was his evidence concerning the commencement of marketing of the property. The contents of the screen shot showed that the Agency was in possession of the signed agreement by 29 November 2013 because it had been uploaded to its computer records on that date.

18. [58]

    Although the document would have been more sensibly tendered in evidence in chief, it went to something that arose in cross-examination, and it was in itself a business record. The piece of paper upon which the screen shot was recorded may have been produced for the purposes of litigation, but the contents of the computer record, which was the evidence the defendant relied upon, was not.

19. [59]

    The document was admissible and there was no error in its admission.

20. [60]

    I would dismiss this ground of appeal.

21. [61]

    I have already concluded that the screen shot was properly admitted. It was a document of some significance since it supported the evidence of Mr Jobberns and, to an extent, contradicted that of Mrs Gandy.

22. [62]

    It was, however, only one piece of evidence, and I am unable to conclude that the Magistrate drew an unavailable inference from it, or placed too great an emphasis upon it in concluding that the agency agreement was delivered by Mrs Gandy to the Agency on 25 November 2013, and that she was given a copy of it on that date.

23. [63]

    The screen shot provided some support for that conclusion of fact, but the most significant evidence in that regard was the evidence of Mr Jobberns that Mrs Gandy had dropped the Agreement in to him that morning, supported as it was by a diary entry for that date which recorded that he was to see Mrs Gandy so that she could return the signed agreement.

24. [64]

    The fact that cost incurring marketing was booked on that date provided further support for the agent’s evidence, since common sense suggested that a business was unlikely to put itself to expense in execution of a contract it did not have.

25. [65]

    Conversely, it was open to the Magistrate to conclude that Mrs Gandy’s evidence as to the date on which the Agreement had been delivered to the agency was disingenuous, and thus that her evidence of other critical facts, such as whether she had been given a copy of the Agreement, may not have been reliable.

26. [66]

    The screen shot was no more than a piece of evidence in a case where the overwhelming weight of the evidence was favourable to the Agency.

27. [67]

    I would not grant leave to advance this ground.

28. [68]

    The plaintiffs raise multiple complaints about the conduct of the hearing in the Local Court, but the transcript of the proceedings does not establish those complaints. Having read it, I can see no procedural irregularity of such a nature as to have denied the Gandys procedural fairness. The fact that a judicial officer does not accept the case advanced by a party is to be distinguished from a judicial officer who does not permit that case to be fairly put.

29. [69]

    There was initially an issue about the receipt of affidavit evidence because his Honour had expected it to be filed, in circumstances where there had been no directions for evidence to be filed ahead of time. The Gandys referred to the possible need for evidence “in reply” to that of the Agency, and his Honour made it clear that, if necessary, the matter could be adjourned to another day with the parties given “every opportunity” to advance their cases. The plaintiffs, in fact, made no application for an adjournment to adduce further evidence.

30. [70]

    Witnesses were called and sworn, each identified his or her affidavit, and oral evidence followed. There was a proper opportunity for cross-examination of witnesses, and re-examination as appropriate.

31. [71]

    The plaintiffs complain that his Honour did not “call for” objections to the affidavit evidence, but it was at all times open to the parties to raise any objection that might be taken. Although it is open to a judicial officer to ask about objections to an affidavit to be read in proceedings, I do not equate a failure to do so with a denial of procedural fairness. The parties were represented by counsel; counsel can and should raise objections where they are to be taken. It should not be necessary to wait for the court to invite them.

32. [72]

    Since the Magistrate made it plain that he would favourably entertain any application for an adjournment to address evidence not expected or anticipated, there can be no denial of procedural fairness where counsel for the Gandys did not seek an adjournment for that purpose.

33. [73]

    This ground cannot be made good.

34. [74]

    These grounds appear to complain about the conclusions of the court concerning the provision of the agency agreement by Mr Jobberns to Mrs Gandy on 25 November 2013, and the adequacy of reasons for those conclusions.

35. [75]

    Much of what has been said in relation to grounds 1 and 2 above are applicable to these complaints.

36. [76]

    The Magistrate, having heard the evidence and enjoyed the considerable advantage of seeing the witnesses give that evidence before him, concluded that he could not accept Mrs Gandy’s evidence. He did accept the evidence called on behalf of the Agency. Those conclusions were well open to him on the evidence.

37. [77]

    His Honour’s reasons are clear in that regard. He did not accept Mrs Gandy as a witness upon whom he could rely. He did not accept her assertions about the provision by her to the Agency of the signed agreement, and he did not accept her claim that she was not given a copy of it. He preferred and accepted as credible the evidence of Mr Jobberns.

38. [78]

    The dictates of justice require that an adequate statement of reasons is provided to the parties. What is adequate is relative and will depend upon the nature of the case.

39. [79]

    The relevant principles are summarised in Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127, at [56] – [59]:

40. [80]

    In my view, his Honour has – albeit with brevity in an ex tempore judgment – referred to the relevant evidence, set out his findings of fact, and given his reasons for the findings he made.

41. [81]

    On a fair reading of the whole, and bearing in mind that the judgment was delivered ex tempore, there can be no legitimate complaint of inadequacy. This ground has not been made good.

The Amount of Money the Subject of the Local Court’s Orders

1. [82]

   The Statement of Claim filed by the Agency before the Local Court sought payment of the commission on the contract for sale, being 2% of a sale price of $1.25 million dollars. An agreed fact before the Local Court was that the purchase price contracted for was in fact $1.242 million dollars.

2. [83]

   The Statement of Claim was not amended to reflect the agreed fact and thus the order made by the Local Court was for payment of $25,000 by the Gandys to the Agency, being the commission on the higher sale price.

3. [84]

   Although this does not form any ground of or argument on the appeal, the defendant agrees that the claim should have been for $24,840, and the order of the Local Court should have been for that amount rather than for $25,000.

4. [85]

   This Court has the power to vary the Local Court’s order pursuant to s 41(1)(a) of the Local Court Act and I propose to vary it to the extent that the sum the Gandys were ordered to pay should have been $24,840, in lieu of $25,000.

   1. (1)

      Pursuant to s 41(1)(a) of the Local Court Act, the order of the Local Court is varied to substitute the amount of $24,840 to be paid to the defendant in these proceedings in lieu of the amount of $25,000. The orders of the Local Court are otherwise confirmed.

   2. (2)

      Leave to appeal on ground 4 is refused.

   3. (3)

      Summons otherwise dismissed.

   4. (4)

      Costs of these proceedings are awarded in favour of the defendant.