The commission payable to a real estate agent on the
sale of a property is a significant expense for any seller. If you
are considering engaging an agent to sell a property, you should
review the terms of the agent's appointment carefully to
understand the circumstances in which the agent may claim
commission. You should also consider the consequences of changing
Some sellers unwittingly expose themselves to multiple claims
for commission by not taking into account that an agent may still
be entitled to commission for a sale that takes place after expiry
of the agent's appointment if the agent was the effective cause
of the sale. West Property Solutions t/as Century 21 West
Property Group v Lewis & Anor  QCATA 42 and 66 is a
case in point.
In brief, the relevant facts were as follows:
In October 2013, the vendors appointed West Property Solutions
t/as Century 21 West Property Group (West) as
agents to sell their property.
On 1 February 2014, Mr and Mrs Bartlett inspected the property
with an agent from West.
On 12 February 2014, West presented the vendors with a contract
from Mr and Ms Bartlett.
On 13 February 2014, the vendors requested a variation to one
of the special conditions proposed.
On 14 February 2014, West prepared the new special conditions
and sent them to the vendors and Mr and Mrs Bartlett. Later that
day, after further dealings, West sent an email to the vendors
advising that Mr and Mrs Bartlett were happy with the revised
On 15 February 2014, West's appointment as agent
On 24 February 2014, through a different agent, the vendors
signed a contract with Mr and Mrs Bartlett on the same terms as
West presented on 12 February 2014.
On 26 March 2014, the sale settled and West claimed commission
on the sale.
At first instance, the Queensland Civil and Administrative
Tribunal dismissed the claim on the basis that there was not a
sufficient nexus between West and the eventual sale of the
On appeal, the Appeal Tribunal referred to the High Court's
decision in LJ Hooker Ltd v WJ Adams Estates Pty Ltd
(1977) 138 CLR 52, which determined that if an agent introduces a
person who ultimately becomes the purchaser, the agent was the
effective cause of the sale and the intervention of the seller, or
another person, is irrelevant. The Appeal Tribunal noted that the
Tribunal at first instance had focussed on whether the nexus
between West and the eventual sale had been broken, rather than
examining whether West was the effective cause of the introduction
of Mr and Mrs Bartlett that resulted in the sale.
The Appeal Tribunal also considered the Supreme Court of
Queensland's decision in Rankine & Ors v Rankine &
Ors  QSC 281, in which Justice Ambrose held that the
real estate agent introduced the purchaser by the calling of public
tenders and the conducting of negotiations which led to the sale.
The Appeal Tribunal found that, in the same way, West had
introduced Mr and Mrs Bartlett to the property by advertising,
holding open homes and negotiating the terms of a contract. The
fact that the vendors paid for the advertising and went to the
expense and trouble of engaging another agent were not relevant
The Appeal Tribunal therefore found that West introduced Mr and
Mrs Bartlett and was entitled to the commission.
This case is a basic reminder for agents and vendors alike that
the agent who was the "effective cause of the sale" will
generally be the agent that introduced the person who ultimately
becomes the purchaser, which will give rise to an entitlement to
The High Court of Australia has granted special leave to appeal a decision of the NSWCA that upheld an adjudication determination under the NSW 1999.
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