An exclusive listing agent who cancelled a written conjunction agreement just days after the other agent’s client signed up for the buy, was last week told it must let go a half share of the commission.

Ray White Main Beach had no signed PAMDA appointment pursuant to PAMDA s 133 either from the sellers themselves or the listing agent.

The listing agent, Miami’s Propcare Real Estate, had argued that its colleague was therefore barred by PAMDA s 140 from recovering its commission share.

With no authority on point and noting in particular that PAMDA had been poorly drafted as compared to comparable legislation in Victoria, the District Court in Brisbane held that PAMDA s 140 did not apply to conjunction arrangements.

It arrived at this conclusion in the absence of any specific PAMDA exemption, by deducing there was “no reason to interpret s 133 as applying to the formation of a conjunction agreement between two real estate agents” in the same way as it would not require licensed employee agents to hold an appointment from their employer  principal.

The court also ruled that the absence of a PAMDA appointment from the sellers “would only be relevant if [Ray White] was seeking to recover directly from the vendors”.

Neither was Ray White disentitled to its share because it had allegedly breached various code of conduct provisions, even though they were established by regulation under PAMDA s 154: “There is nothing to indicate that a breach of a provision of the code is a matter which can be raised in civil litigation”.

In further arguments raised by the self-represented Miami agent – that the conjunction agreement was invalid because the Ray White employee who signed it did not hold a PAMDA licence – was dismissed on the basis that he was not purporting to sign on his own behalf but for the licensee and had been duly authorised to do so.

Lack of particulars in the conjunction agreement as to the specific legal entity who was to be the ultimate buyer, made no difference. Neither was it relevant that the conjunction agent had already lined up the buyer prior to the time the agreement was entered into.

The District Court thus upheld the earlier ruling of the Southport Magistrates Court that Propcare of Miami must pay out $20,022.75 of the commission, to its Main Beach colleague.

Propcare Pty Ltd v Orchid Avenue Realty Pty Ltd [2012] QDC 361 Brisbane McGill SC DCJ, published 19/12/2012


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