TERRY PFEIFFER V CONNORS [2000] NSWSC 452

Procedural Posture

Appeal From Local Court on Question of Law / Supreme Court Appeal Against Local Court Decision Awarding Recovery of Real Estate Commission

Legal Issues

1. 1 ['Whether the agent served a copy of the signed agency agreement on the vendors within 48 hours as required by Property Stock and Business Agents Act 1941 s42AA(1)(e).' 'Whether the Local Court magistrate reversed the onus of proof on the question of service of the agency agreement.' "Whether the magistrate failed to give adequate reasons for accepting Mr Connors' evidence and rejecting the agent's case about service." 'Whether the vendors waived or elected not to rely on any statutory right to recover commission by authorising payment of the commission.' 'Whether ignorance of the requirement in s42AA(1)(e) was ignorance of a material fact preventing waiver by election.']

Ratio Decidendi

The appeal was dismissed because it was open to the magistrate to accept Mr Connors' evidence that he did not receive the disputed letter or a copy of the second agency agreement, and the magistrate did not reverse the onus of proof or commit an error of law in his reasons. The waiver defence also failed because Mr Connors did not know of the statutory obligation under s42AA(1)(e) to serve a signed copy of the agency agreement within 48 hours, and that obligation was a material fact necessary for waiver by election.

Court Disposition

Appeal dismissed.

Orders

• ['The appeal must be dismissed.']