A property consultant who “sourced” early learning centres for investors at a fee of $2000 per approved child place has fended off allegations he was working unlicensed as a real estate agent to recover $1.2 million in site introduction commissions.
Hilton Headley – whose previous experience at Colliers, JLL, Macquarie Group, Stockland and Colorado ensured he had a wide network of industry connections – had let his commercial real estate licence lapse in May 2014.
He understood the use of his personal relationships to connect experienced childcare operators such as Guardian and Kids Club Childcare with agents and developers did not require any license.
At an encounter at the Woollahra Hotel with former Stockland colleague Glenn Dumbrell in September 2017, Headley told the nascent ELC developer that he was “happy to steer” further opportunities his way for the same fee he charged others in the industry.
Their renewed association developed quickly.
Within days, Headley provided Dumbrell and his financial backer Simon Larcombe the first deal they would consummate, a 94 place childcare centre at Hurstville.
The trio discussed the terms – $2,000 plus GST “per kid” with half payable on signing a lease and the balance on opening of the centre – at a “boozy lunch” over several hours at the Woollahra Hotel’s Bistro Moncur.
Headley knew Larcombe as a school friend of his younger brother and hence did not seek immediately any written confirmation of the terms.
Following the execution of an agreement for lease and development approval for the Hurstville site in June 2018, Larcombe’s company paid 50% of Headley’s asking fee based on a downsized occupation of 72 children.
Headley sourced a further seven sites in the ACT – through Burgess Rawson’s Guy Randell – that Larcombe’s company took on.
By the end of 2019 – after Headley had received close to $500,000 in first stage payments for his introductions – Larcombe became frustrated with the delays being encountered on developer compliance with DA conditions and getting his centres opened.
He proposed revised payment terms for each site, ranging from $500 to $1,650 “per pax” and “drop dead” dates for premises construction to begin.
Under financial pressure of his own, Headley contemplated accepting the revised terms to ensure immediate payment, actions which Larkham interpreted as acceptance.
Headley filed proceedings in the NSW Supreme Court to recover his full entitlement under the original terms.
Justice Kelly Rees accepted that an agreement had been reached at Bistro Moncur or shortly thereafter substantially in the terms that Headley alleged noting that such terms had been met by Larcombe until he made his counterproposal. She rejected the agreement was negatively affected by reason of the parties’ alcohol consumption at the event.
The judge also rejected the contention that Headley was bound by his “agreement” to accept a lower fee noting that the absence of any consideration for the downward fee revision other than that which was by its nature “illusionary”.
She closely scrutinised Headley’s activities in relation to each site he “sourced” and concluded that the introduction of particular properties on behalf of a developer or to an investor met the requirements of “carrying on business” as a real estate agent.
Because Headley had though in respect of the ACT sites, worked through Mr Randall – himself a licensed agent who conducted all of the interaction between the relevant parties – such introductions were not “as an agent” thereby avoiding the consequences of the NSW real estate licensing requirements.
That was not the case in respect of Hurstville, meaning that – had the part 1 payment not be made – Headley would have been prohibited from recovering it. That said, Justice Rees declined to order that he be required to refund it.
There was no dispute in respect of the second tranche of the Hurstville fee because Larcombe had abandoned the deal which he ultimately determined to be unfavourable.
The court ordered that Larcombe’s company pay Headley a total of $750,000 for the further sites “sourced” in respect of which leases had been executed and noted that a further sum of $418,000 would be payable on the opening of three further centres.
Note that in Queensland the mere “introduction” of properties to a prospective buyer, lessee or seller may not of itself be an activity that requires a real estate licence if the introducer does not engage in any negotiation. Unlicensed persons are however prohibited from recovering commissions payments where the work performed requires the possession of a license and must refund any payments they have received if convicted of an offence under the relevant sections. Specific legal advice should be obtained in relation to the particular circumstances in every case.
White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817 Rees J 25 July 2023 Read case
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