A Bribie Island principal who had not caught up with changes to agency appointment forms that came into effect in December has been ordered to repay her sellers the commission earned by introducing the prospects who acquired the Bongaree property.
In February 2015 Michael Millar appointed Gayle Cox of Premium realty as agent for the sale of his bayside property.
Ms Cox introduced Mr and Mrs Fisher who ultimately purchased the residence. But because the sale to the Fishers was subsequent to her appointment and through another agent, Millar refused her any commission.
Her plea to the Queensland Civil and Administrative Tribunal that she was the effective cause of sale was upheld and Millar pay Cox commission of $7.7k.
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Millar appealed on the basis that the PAMD Form 22a appointment he signed became obsolete from 1 December 2014 and claimed a valid appointment could only have been by way of a Property Occupations Form 6.
Senior QCAT Member Peta Stilgoe considered the effect of POA s 89(1)(c) that states “a person is not entitled to sue for commission unless that person was properly appointed” and s 104(1) that requires it to be by way of the approved form.
“Ms Cox should have known about the new Form 6,”ruled judge Stilgoe. “She should have been using it and her failure to do so indicates that she was not appropriately aware of her obligations under the Act.”
Because there were no discretionary or transitional provisions in the Property Occupations Act, the tribunal had no choice but to deny her the commission she had earned.
Cox was ordered to repay what commission she had received.
The episode is an exquisite epitaph for the ignominy that was PAMDA. That the OFT omitted to even allow a transitional period for the adoption of new forms – as it did on numerous other occasions since 2000 when its fancy demanded them – is emblematic of the wanton maladministration that wreaked human and financial carnage of huge proportions over its 15 year operation.
Millar v Cox [2016] QCATA 002 Senior Member Stilgoe OAM published 15/02/2016
