Forbat v Meriton Apartments P/L [2004] NSWSC 1026 (3 November 2004)

Last Updated: 9 November 2004

NEW SOUTH WALES SUPREME COURT

CITATION: Forbat v Meriton Apartments P/L [2004] NSWSC 1026



CURRENT JURISDICTION:

FILE NUMBER(S): 50047/03

HEARING DATE{S): 25/10/04, 26/10/04, 27/10/04, 28/10/04

JUDGMENT DATE: 03/11/2004

PARTIES:
Istvan Forbat
v
Meriton Apartments Pty Ltd

JUDGMENT OF: White J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Plaintiff: In Person
Defendant: Mr M Wood

SOLICITORS:
Plaintiff: N/A
Defendant: Richard de Carvalho


CATCHWORDS:
CONTRACT - Claim for commission - Whether plaintiff's endeavours resulted in defendant's purchase of the property - No question of principle.

ACTS CITED:
Bankruptcy Act 1966 (Cth)
Auctioneers and Agents Act 1971 (Qld)
Property Agents and Motor Dealers Act 2000 (Qld)
Property Stock and Business Agents Act 1941 (NSW)
Property Stock and Business Agents Act 2002 (NSW)
Interpretation Act 1987 (NSW)

DECISION:
Summons dismissed.


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST


WHITE J

Wednesday, 3 November 2004


50047/03 ISTVAN FORBAT v MERITON APARTMENTS PTY LTD

JUDGMENT

1 HIS HONOUR: The defendant is a property developer specialising in the construction of blocks of residential apartments. The plaintiff has worked as a consultant in the field of property development. In these proceedings the plaintiff claims commission arising from the purchase, by companies related to the defendant, of a property on the Gold Coast for $54,500,000. The commission claimed is 5%. The property was purchased from Sundale Group Pty Limited and has been called the Sundale property. Contracts for its purchase were exchanged on 8 October 2002. The purchase was completed on 8 January 2003.

2 The agreement under which the plaintiff claims commission was made in January 1994 between the plaintiff and Mr Triguboff of the defendant. It is recorded in a letter dated 18 March 1994 from Mr Spira, the general manager of the defendant, to the plaintiff. It is in these terms:

“I wish to confirm that our company is prepared to pay you a commission of 5% on any deal which is consummated as the result of your endeavours.”

3 The defendant did not dispute that the 1994 agreement, or unilateral offer, continued to apply to dealings between the plaintiff and the defendant. The defendant did not contend that no commission was payable because the property was acquired by subsidiaries of the defendant and not by the defendant itself. The principal issue was whether the purchase of the Sundale property in 2002 was consummated as a result of the plaintiff’s endeavours.

4 If this question is answered favourably to the plaintiff, the defendant contends that the plaintiff is precluded from recovering the commission because he does not hold a real estate agent’s licence in either New South Wales or Queensland.

5 The plaintiff was made bankrupt on 23 November 1999. He was discharged from bankruptcy on 1 December 2002. These proceedings were commenced on 14 May 2003. One of the grounds of defence was that the cause of action upon which the plaintiff sued was vested in the Trustee in Bankruptcy. On or about 2 October 2003 the Trustee in Bankruptcy assigned to the plaintiff any cause of action which the plaintiff might have against the defendant as alleged in the proceedings which might have vested in the Trustee. On the first day of the hearing, the summons was amended to plead the assignment of the cause of action from the Trustee in Bankruptcy to the plaintiff. Thereafter the defendant did not raise any issue under the Bankruptcy Act.

The Sundale Property

6 The property in question was owned by Sundale Group Pty Ltd. Its managing director was a Mr Chiu. Mr Frank Zaidan was its operations director. The property is located on the southern precincts of Southport on the Gold Coast, Queensland. A shopping centre had been constructed on the site but by 1997 it was essentially vacant. The vendor was waiting for State and Local government approvals to permit the site to be re-developed. In 1998 the Sundale Group obtained approvals which allowed for a mixture of high-rise buildings including residential, commercial and hotel components. The 1998 development approval allowed the construction of low-rise multi-unit residential buildings of three or four storeys; three towers from seventeen to thirty storeys for residential units; a thirty-storey motel; and a seventeen-storey building described as “combined motel/commercial premises”.

7 The development consent did not specify the number of units, or number of bedrooms, that could be constructed.

8 On 26 August 1998 Mr Zaidan wrote to Mr Antonas who was a land buyer employed by the defendant. Mr Zaidan had contacted Mr Antonas to sound out the possibility of the defendant purchasing or becoming involved in a joint venture with the owners of the site. In his letter of 26 August 1998 Mr Zaidan said that up to 816 bedrooms could be constructed within towers 1, 2 and 3 and that a total of 1,629 bedrooms could be achieved for the whole site area. Based on the zoning at that time, it appears that this would have included bedrooms in the hotel and commercial components of the site. He indicated a price per bedroom for the tower components and invited a response from the defendant.

9 In early 1999 Mr Zaidan, Mr Chiu, Mr Triguboff, and Ms Arden-Wood who is the defendant’s sales representative on the Gold Coast, had a meeting to discuss the site. Mr Triguboff is the managing director and founder of the defendant. He is the principal decision-maker when it comes to the defendant’s buying, or refusing to buy, land for development.

10 Mr Triguboff was familiar with the Gold Coast area. From about 1994 the defendant constructed eight blocks of residential apartments in the Main Beach area of the Gold Coast. It employed several full-time staff based on the Gold Coast to sell Meriton Apartments there. Mr Triguboff owned a holiday apartment on the Gold Coast which he visited regularly and often drove around looking for sites and inspecting sites that were being offered for sale.

11 At the meeting in 1999 Mr Triguboff and Ms Arden-Woods inspected the site with Mr Zaidan and Mr Chiu. They were taken to an apartment owned by Mr Chiu on level 19 of a building next door to the site. This provided a good overview of the site and also approximately inidicated what the view from the developed site would be like.

12 In the period from January to March 2000 two firms of real estate agents in the Gold Coast, Ray White of Surfers Paradise and Jones Lang Lasalle, were jointly engaged by the Sundale Group to market the site. During the marketing campaign from January to March 2000, Mr Bell sent a full property package on the site to Mr Triguboff. This included a marketing pamphlet prepared by the agents which he sent to Mr Triguboff. The document in question is a glossy brochure showing photographs of the surrounding area and depicting what the completed construction might look like. The brochure described what development had been approved and the number of bedrooms which could be constructed within the towers and low-rise apartments.

13 The site was not sold during this marketing campaign. It is common ground that by March 2000 Mr Triguboff had no interest in acquiring more property on the Gold Coast. It is clear, however, that the defendant’s officers were aware of the development opportunity and had had dealings with the vendor.

14 The reason for Mr Triguboff’s lack of interest in acquiring more land on the Gold Coast was that it was his perception that the market for apartments on the Gold Coast was depressed. He regarded the market as being very difficult for a developer. In order to sell units in Meriton’s Main Beach developments he was having to offer finance to prospective purchasers of up to 80% of the purchase price. This was well in excess of Meriton’s standard policy of offering vendor finance for up to 30% of the purchase price. Mr Triguboff emphasised that the cost of acquiring a development site was only a small part of the overall cost of the development. In 2000 he also considered that Southport had a terrible name for apartment builders.

The Plaintiff’s Involvement

15 In 1994 the plaintiff successfully negotiated Meriton’s purchase of a development site on Main Beach. Between 1994 and 1999 he was mostly resident overseas although he continued to visit Australia from time to time. He learned of the marketing campaign for the Sundale site that was being conducted in early 2000. In May 2000 he made enquiries from one of the agents and ascertained the Sundale site was still available. In early June 2000 he telephoned Mr Spira, Meriton’s general manager, and told him that he had a great site for him to consider and identified the disused Sundale shopping centre in Southport. Mr Spira told him that Sundale was not for them. The plaintiff was not deterred and asked to speak to Mr Triguboff about the Sundale site. He was referred by Mr Spira to Mr Antonas.

16 Prior to meeting Mr Antonas, the plaintiff collected a number of documents. He performed a title search of the property and a company search of Sundale Group Pty Ltd. He obtained an extract from the advertising brochure to which I have previously referred, which identified the potential number of bedrooms that could be constructed in units in the different towers for which approval had been given. He prepared his own estimates of how many 1 bedroom, 2 bedroom and 3 bedroom units could be constructed in the high-rise towers and the low-rise residential sections.

17 Mr Antonas met the plaintiff in Mr Antonas’s office in mid June 2000.

18 Mr Antonas gave evidence that he agreed to see Mr Forbat out of politeness because of his apparent relationship with Mr Spira although Meriton had no particular interest in the Sundale property or the Gold Coast. They discussed the Sundale property. Mr Forbat told Mr Antonas that he thought that the likely selling price would be under $20,000,000. The plaintiff left a copy of the coloured brochure showing the zoning approval with Mr Antonas. This was the same document that had been prepared by the estate agents for their marketing campaign in early 2000 which had previously been supplied by those agents to Meriton. The plaintiff had removed the agents’ names from the document.

19 The meeting with Mr Antonas was short. Mr Antonas took the plaintiff to see Mr Triguboff in Mr Triguboff’s office. According to the plaintiff, the meeting with Mr Triguboff lasted ten to fifteen minutes. Mr Triguboff could not recall any of the detail from the meeting. That is not surprising. I had the impression that Mr Triguboff had many calls on his time. The meeting was more important to the plaintiff than it was to Mr Triguboff. I think it more likely that the plaintiff would recall details of what was said than would Mr Triguboff. Mr Antonas also had little recollection of the meeting. He said it was very brief. According to him, he took the plaintiff to see Mr Triguboff as a public relations exercise. That may have been Mr Antonas’s reason for reintroducing the plaintiff to Mr Triguboff. The fact remains however that the plaintiff’s purpose in seeking the meeting was to attempt to excite Mr Triguboff’s interest in buying the Sundale site. Mr Antonas said that there was an extremely brief discussion about Sundale and that Mr Triguboff was pretty negative.

20 In his affidavit the plaintiff deposed that he provided a detailed commentary upon the advantages of the Sundale site: its location; the cost for which he believed it could be acquired; the history of government approvals; the financial position of the vendor company; the type of offer that would need to be made to secure the property; the state of the market on the Gold Coast; the terms of the development approval; the number of bedrooms which could be constructed on the site; and the possibility of the Council approving increases in the precinct height limit. No notes were taken at the meeting. On any view, the meeting was very brief. The plaintiff’s affidavit deposing to these matters was prepared more than three years after the conversation occurred with Mr Triguboff. Whilst I accept that the plaintiff is likely to have a better recollection of the meeting than Mr Triguboff, I do not accept that he was able to recall the detail of the matters which he says he put to Mr Triguboff. I have no doubt however that he spoke to Mr Triguboff about the advantages of Meriton acquiring the site. In what detail I cannot say.

21 The plaintiff said that the conversation concluded by his saying that, in the absolute worst-case scenario, Meriton could develop part of the land and sell off the rest for more than it had paid for it. According to him Mr Triguboff then said that that was true, that they could always flick it, and that he said to the plaintiff, “Alright Steven I’ll buy it. Go and do what you have to do and let me know.”

22 These statements were denied by Mr Triguboff and the last quoted statement was denied by both Mr Triguboff and Mr Antonas. I do not think it matters whether or not Mr Triguboff acceded to the proposition that Meriton could sell part of the site if it did not wish to develop it. However, the assertion that Mr Triguboff said that he would buy the site and that the plaintiff should go and do what he had to do to acquire it, if accepted, would indicate that the plaintiff had changed Mr Triguboff’s mind about the desirability of buying the Sundale site.

23 I think it improbable that in the brief meeting the plaintiff would have succeeded in changing Mr Triguboff’s mind about buying the Sundale site. He had no new information about the site than that which had already been made available to Meriton. Mr Triguboff was unlikely, in my view, to have paid any regard to the opinions of the plaintiff in relation to the prospects for development. Meriton was a major, perhaps the major, property developer on the Gold Coast. Mr Triguboff had much more experience and expertise than did the plaintiff. His decision whether or not to purchase was fundamentally determined by his assessment of the market. He was not influenced in making that assessment by the views of any individual agent, let alone of the plaintiff who was not closely familiar with the Gold Coast area having been resident for most of the previous six years outside Australia. I accept Mr Triguboff’s denial of the statement attributed to him that he told the plaintiff that he would buy the property and that the plaintiff should go and do what he had to do.

24 It does not follow that Mr Triguboff told the plaintiff that he was not interested in buying the Sundale site. He may well have given the plaintiff the impression that if the plaintiff could negotiate a deal with the vendor and present it to Meriton, he might be prepared to look at it then. There is no express evidence to that effect as the plaintiff pitches his case higher and the defendant contends that the plaintiff was brushed off. However it can be inferred from the steps which the plaintiff took after his meeting with Mr Triguboff and from what Mr Antonas said to him in later telephone conversations.

Plaintiff’s Actions After the Meeting with Mr Triguboff

25 The plaintiff was prompted to devise strategies with Mr Maguire, a real estate agent in Queensland, to try to coax the vendor into committing to a contract or to a price. On instructions from the plaintiff, Mr Maguire made an offer of $12,000,000 for the site in the name of Dr Sam’s Australia. Mr Maguire described this as being a unit trust whose principal was Mr Richard Forbat, the plaintiff’s son. The name was used by Mr Maguire to conceal Meriton’s involvement as Mr Maguire and the plaintiff thought that the price would go up if the vendor knew that Meriton was involved. Mr Chiu rejected the offer. He told Mr Maguire that he already had an offer from a person, whose identity he did not reveal, for $18,000,000. He showed Mr Maguire a draft contract for that price whilst hiding the name of the purchaser.

26 This was the only negotiation with the vendor to acquire the site which was carried out by the plaintiff or anyone acting on his instructions.

27 The plaintiff obtained various documents from Mr Maguire. They were: a copy of the decision of the Planning and Environment Court setting out the conditions of development approval; some conceptual design prepared by a firm of architects for the site showing the possible location of the tower buildings and car park, the number of one, two and three-bedroom units in each of the towers that could be built and the number of storeys of the towers; and a valuation performed by firm of valuers called Landmark White valuing the site at $18,850,000 which Mr Maguire obtained from Mr Chiu. The plaintiff said he sent these documents to the defendant.

28 The defendant said that it had no record of receiving these documents and its officers said they had no recollection of having received them. It is clear that at least one page of the executive summary of the valuation was sent by facsimile to the defendant on 16 August 2000. The page sent by fax set out the valuer’s opinion of the market value of the property as being $18,850,000.

29 Mr Antonas said that he never received any schematic drawings or feasibility studies from the plaintiff. However I accept the plaintiff’s evidence that such documents were delivered to Meriton. Nonetheless they were not used by the defendant. It is probable that after 30 August 2000 they were discarded.

30 In July and August 2000 the plaintiff telephoned Mr Antonas on a couple of occasions to talk about Sundale. During this period the plaintiff met Mr Antonas again in his office. He wanted to discuss a site in Kent Street which he proposed the defendant consider acquiring. Mr Antonas told the plaintiff that Mr Triguboff had told the plaintiff to concentrate on Sundale and to leave Sydney to Meriton.

31 After Mr Chiu had rejected the $12,000,000 offer put to him by Mr Maguire, the plaintiff instructed Mr Maguire to prepare a draft contract for the purchase of the site for $14,000,000. He asked Mr Maguire to leave the buyer’s name blank but to provide for a price of $14,000,000 with a 10% deposit and a 30 day “cooling-off period”. His intention in doing this was to have the draft contract later made out in the name of the shelf company and to procure from Meriton a cheque for a deposit, although not one drawn on a Meriton company. He proposed to send a signed copy of the contract and a cheque for the deposit to Mr Maguire so that Mr Maguire could present it to Mr Chiu. He anticipated that Mr Chiu would reject the document but that Mr Maguire could then invite Mr Chiu to insert in the document the price which he required. In this way he hoped to commit Mr Chiu to a price below $20,000,000 for the property without disclosing Meriton’s involvement.

32 Whether this elaborate scheme would have worked will never be known. The draft contract was delivered to Meriton on 25 August 2000. The plaintiff discussed it with Mr Antonas on 29 August. Mr Antonas did not recall receiving the document from the plaintiff but I prefer the plaintiff’s recollection of this event. However on the next day, 30 August 2000, Mr Antonas told the plaintiff that Mr Triguboff had decided not to buy Sundale and that it had been put on the backburner. This was the end of the plaintiff’s involvement in the defendant’s acquisition of the Sundale site, except for his having made sporadic inquiries about what was happening.

33 The plaintiff did minimal work on the project. The negotiations with the vendor got nowhere before he was told on 30 August that Mr Triguboff had decided not to buy the property and that it was put on the backburner. The documents which the plaintiff supplied to Meriton were not used by Meriton and they would have been of no value to Meriton in its later acquisition of the site in 2002.

34 The thrust of the defendant’s evidence was that the plaintiff’s approach in June 2000 was completely dismissed. I have not accepted that. I consider that the work which the plaintiff did after that meeting, the delivery of documents by the plaintiff to the defendant, the fact that Mr Antonas told the plaintiff to concentrate on Sundale, and his later having told the plaintiff that Sundale had been put on the backburner, are not consistent with the plaintiff’s initial approach having been dismissed as out of hand. On the other hand, I do not accept the plaintiff’s contention that as a result of his presentation to Mr Triguboff in June 2000 he had changed Mr Triguboff’s mind about buying the Sundale site. Rather, the defendant waited until shortly after the plaintiff presented a draft contract before then dismissing his approach. I am satisfied that as at 30 August 2000 Mr Triguboff did not want to buy the Sundale site. That was for the reasons to which I have already referred in paragraph 4.

35 The plaintiff cross-examined Mr Triguboff upon a statement which he made to a journalist about his philosophy in acquiring property. Mr Triguboff accepted that in February 2000 he had said that his approach was to buy land cheap when the market was bad and then wait until the market was really bad and then buy more land so that it could be bought cheaply. Mr Triguboff also said that Meriton bought land all the time to provide continuous work to its builders. Although this was part of his general philosophy, he said that he regarded the market for apartments in Surfers Paradise at that time as being catastrophic, and that in 2000 he did not want to buy any land there. I accept this evidence. It is consistent with his conduct.

Events After 2000

36 Between the end of 2000 and October 2002 there were three significant changes. The first and most significant was that Mr Triguboff’s perception of the market for apartments on the Gold Coast changed. By 2002 he also thought that Sundale was a good area to go into because other developers had been building successfully in areas north of Southport.

37 The second significant change was to the development approval for the Sundale site. The principal changes were the approval of four high towers for residential development, “low rise” residential development of up to ten storeys, and changes to the commercial space. The Gold City Council resolved to approve the new terms on 19 July, 2002.

38 The third significant change was that the vendor entered into a joint venture with another developer called Austcorp for the development of the site. Although the evidence about the terms of that joint venture is sparse, I infer that Austcorp’s approval, as well as the vendor’s approval, was required before a sale of the property could proceed.

39 In July or August 2002 Mr Triguboff instructed Meriton’s staff on the Gold Coast to look out for a suitable development site. In July or August 2002 Ms Arden-Wood introduced Mr Triguboff to a Mr Pearsall on the Gold Coast who worked for a real estate and development company called Inland Pty Ltd. Unsurprisingly, Mr Pearsall encouraged Mr Triguboff’s interest and took him to look at a number of sites. There were five such sites including the Sundale site. Mr Pearsall was aware of the changes to the terms of the development consent and suggested to Mr Triguboff that it was worth having a closer look at that site. He also believed that the relationship between the joint venture partners was not healthy at the time and said so to Mr Triguboff. Mr Pearsall brought in a Mr Bonifant, an estate agent at Surfers Paradise. Mr Pearsall negotiated with Mr Chappell of Austcorp and asked Mr Bonifant to speak with Mr Chiu. They each had separate meetings with Austcorp and Sundale Group Pty Ltd. They procured an agency agreement from Sundale Group Pty Ltd and Austcorp authorising them to negotiate the sale of the property.

40 Mr Pearsall then flew to Sydney and made a presentation about the site to various officers of Meriton including Mr Triguboff, Mr Spira and a Meriton land buyer, Mr Wall. On 5 September 2002 Mr Pearsall recommended that Meriton make an offer of $50,500,000 for the property. Mr Triguboff authorised an offer of that amount. Following that offer, which was made at some time prior to 9 September 2002, there were further negotiations on price through Mr Pearsall which resulted in the vendor accepting the price of $54,500,000. Contracts for sale were negotiated between lawyers for Meriton and for the vendor. Contracts were signed on 8 October 2002.

41 The plaintiff had no involvement in any of the activities which took place in 2002 in relation to the acquisition.

Was the Deal Consummated as a Result of the Plaintiff’s Endeavours?

42 Essentially the plaintiff’s case was that it was his meeting with Mr Triguboff in June 2000 that changed Mr Triguboff’s attitude to buying the Sundale site. Before he met with Mr Triguboff, Mr Triguboff had no interest in acquiring more property on the Gold Coast and had no interest in land at Southport in general or the Sundale site in particular. According to the plaintiff, after his presentation to Mr Triguboff, Mr Triguboff was willing to buy the site when the time was right. Cost was not a major criterion because it was a small part of the total development costs. According to the plaintiff, Mr Triguboff waited until 2002 for whatever reasons seemed good to him and then arranged for the acquisition of the site without involving the plaintiff. Nonetheless, the plaintiff says that he provided the spark which ultimately led to the defendant acquiring the property. Hence he says that the deal was consummated as a result of his endeavours.

43 To accept that submission I would have to reject Mr Triguboff’s evidence about his attitude in 2000, after he met the plaintiff, about purchasing land on the Gold Coast and at Southport. I would have to attribute to the plaintiff an extraordinary power of persuasion in a brief meeting with Mr Triguboff, which at best took ten to fifteen minutes, when the plaintiff had made no contact with the vendor and where he had no information about the vendor, or about the site, which Meriton did not already know.

44 I see no basis for rejecting Mr Triguboff’s evidence about his perception of the Gold Coast market in 2000 and the change to his perception in 2002. I do not consider that the plaintiff changed Mr Triguboff’s attitude to buying property on the Gold Coast or to buying the Sundale site in 2000. The reasons for Mr Triguboff’s change of attitude were his perception in 2002 that the market had changed and the fact that the development approval for the site had been changed so that more residential apartments could be built without delays.

45 It follows that the defendant’s acquisition of the Sundale property was not the result of the plaintiff’s endeavours.

46 Even if I had accepted the plaintiff’s contention that in June 2000 he succeeded in changing Mr Triguboff’s mind about the Sundale site, I would still not have been satisfied that the acquisition of the property in 2002 was the result of the plaintiff’s endeavours. I would not regard his actions as being an effective cause of the defendant’s acquiring the site in 2002. (L J Hooker Ltd v W J Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52 at 59, 67, 86; Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351 at 358, 361, 376-377, 388-389). Indeed, I would not even accept that what the plaintiff did was a step, without the taking of which the purchase would not have been effected. Without the plaintiff’s involvement Mr Triguboff’s interest would still have been aroused in 2002 and matters would have proceeded in 2002 as they did.

47 There were many things that brought about the purchase in 2002. The most important was the change in Mr Triguboff’s perception of market conditions. Also important was the work which Mr Pearsall did in suggesting to Mr Triguboff that the time was then ripe for Meriton to acquire sites on the Gold Coast, Mr Pearsall’s taking Mr Triguboff back to the site, his liaising with Mr Wall, his marketing presentation to the defendant’s officers in Sydney, his negotiations with Mr Chappell of Austcorp, his arranging with Mr Bonifant to liaise with Mr Chiu, and his conduct of the negotiations between the defendant and Sundale Group Pty Ltd on price. Even if the plaintiff had excited Mr Triguboff’s interest in the site in June 2000, his endeavours were insignificant compared with what was done by Mr Pearsall in 2002 to bring about the purchase.

48 The changes after 2000 to which I have referred in paragraphs 36-38 above also show that there was no causal nexus between the steps the plaintiff took to interest Mr Triguboff in acquiring the Sundale property in June 2000 and the acquisition of the property by subsidiaries of the defendant in 2002.

49 For these reasons the plaintiff’s claim fails. It is not necessary to consider the defences based upon the fact that the plaintiff did not hold a real estate agent’s licence in either New South Wales or Queensland. It is sufficient to record that the plaintiff’s conduct which was alleged to constitute the carrying on of business of a real estate agent took place in New South Wales and not in Queensland. The plaintiff submitted that because his conduct did not take place in Queensland, the Auctioneers and Agents Act 1971 (Qld) and the Property Agents and Motor Dealers Act 2000 (Qld) were inapplicable. (Freehold Land Investments Ltd v Queensland Estates Pty Ltd [1970] HCA 31; (1970) 123 CLR 418; Colbron v St Bees Island Pty Ltd [1995] FCA 1107; (1995) 56 FCR 303 at 311-312). He submitted that the Property Stock and Business Agents Act 1941 (NSW) and the Property Stock and Business Agents Act 2002 (NSW) were inapplicable as they applied to persons carrying on business as an agent for the purchase, sale or other disposition of land in New South Wales. (Interpretation Act 1987 (NSW) s 12(1)(b)). I do not find it necessary to decide these questions.

50 For these reasons the amended summons is dismissed.

51 Counsel for the defendant invited me not to deal with the question of costs in this judgment. I will hear the parties separately on costs.


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LAST UPDATED: 08/11/2004