Colbron, W. v St Bees Island Pty Ltd & Ors [1995] FCA 85

Colbron, W. v St Bees Island Pty Ltd & Ors [1995] FCA 85

The facts available were insufficient, on the interlocutory materials and agreed partial assumptions, to finally determine whether the applicant acted as a real estate agent under the Queensland Act and whether the statutory defences fully applied. As such, it was inappropriate to answer the separate questions in the absence of complete evidence, and prior orders for separate determination were set aside.

Parties
Applicant: Warwick Colbron; First Respondent: St Bees Island Pty Ltd (ACN 010 400 572); Second Respondent: Lionel Neil Berck; Third Respondent: Margaret Ottllie Berck; Fourth Respondent: John Francis Urch; Fifth Respondent: Whitsunday Island Developments Pty Limited (ACN 059 374 882)
Jurisdiction
Australia
Judgment Date
03 March 1995
Procedural Posture
Civil / Interlocutory (decision on Separate Questions and Preliminary Statutory Issues)
Outcome
Order for separate questions set aside; costs of the hearing of the separate questions to be parties' respective costs; proceedings stood over for directions.
Legal Topics
Statutory Illegality, Real Estate Agent Licensing, Commission Entitlement
Contract Law Agency Law Statutory Illegality Real Estate Agent Licensing Commission Entitlement

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Parties

Warwick Colbron

Applicant

St Bees Island Pty Ltd (ACN 010 400 572)

First Respondent

Lionel Neil Berck

Second Respondent

Margaret Ottllie Berck

Third Respondent

John Francis Urch

Fourth Respondent

Whitsunday Island Developments Pty Limited (ACN 059 374 882)

Fifth Respondent

Procedural Posture

Civil / Interlocutory (decision on Separate Questions and Preliminary Statutory Issues)

Legal Issues

  1. 1 Whether the applicant acted as a 'real estate agent' within the meaning of the Auctioneers and Agents Act 1971 (Qld) for the purposes of statutory prohibitions on unlicensed agency and recovery of commission.
  2. 2 Whether the applicant is entitled to recover commission given the statutory requirements for written appointment and holding a licence under the Queensland Act.
  3. 3 Whether the relevant New South Wales legislation applies to the applicant's activities.

Ratio Decidendi

The facts available were insufficient, on the interlocutory materials and agreed partial assumptions, to finally determine whether the applicant acted as a real estate agent under the Queensland Act and whether the statutory defences fully applied. As such, it was inappropriate to answer the separate questions in the absence of complete evidence, and prior orders for separate determination were set aside.

Court Disposition

Order for separate questions set aside; costs of the hearing of the separate questions to be parties' respective costs; proceedings stood over for directions.

Orders

  • Order made on 19 December 1994 for separate questions to be decided is set aside.
  • Costs of the hearing of the separate questions ordered to be the parties' respective costs of the proceedings.