Cooloola Waters Holdings Pty Ltd v Madgwick [2025] QCATA 38

the Client and the Agent agree that the Client is not yet the registered owner of the property and that any contacts provided prior to ownership of the property will be considered to be a contact under this agreement, in which commission of 2.9% will be payable for any contacts resulting in a sale of a unit/units.

When commission is payable:

For sales, including auctions, commission is payable if a contract is entered into and settlement of the contract occurs.

• [7] Two things are of particular importance.
• [8] It is clear the parties provided in the agreement that although CWH was not yet the owner of the property, it agreed that "any contacts" (my underlining) provided prior to CWH becoming owner would be considered a contact under the agreement on which commission would be payable "for any contacts resulting in a sale".
• [9] This last paragraph reflects the second important aspect of the agreement - namely, that commission was payable on sales to such contacts "if a contract is entered into and settlement of the contract occurs".
• [10] In his evidence to the Tribunal, Mr Simonite said that CWH entered into a head of agreement to purchase a retirement village from the receiver/manager, Worrells Insolvency, in November 2021 and that the contract was eventually settled on 3 March 2022. I infer from this that CWH was incorporated prior to settlement of that contract under which it purchased the retirement village.
• [11] The issue in dispute between the parties is whether Ms Madgwick is entitled to commissions on the sale of two units at the retirement village to Mr and Mrs Steele ('Steeles') and Mr and Mrs Maybury ('Mayburys'). If she is so entitled, the quantum of such commission is not disputed. In turn, that question of entitlement is to be considered having regard to the terms of part 7 of the Form 6 - namely, were the Steeles and the Mayburys "contacts provided prior to ownership of the property... resulting in the sale of the unit."
• [12] If that question is answered in the affirmative, then commission becomes payable upon settlement of the contract of sale.

• [13] In his reasons, the member said the law provided a two-fold test for agents claiming commission:

(a) On the proper construction of the contract, what is the event entitling the agent to commission?

(b) Was the transaction brought about by the agent?

• [14] The member was well aware that, at the time the Form 6 was entered into, CWH did not then own the property. However, the member held this was expressly contemplated in the agreement, as seems clear, by reference to condition 7 in part 3 of the Form 6 (the member said this was condition 7 in part 3 of the Form 6 but it is actually part 7) and became binding on CWH upon its becoming owner of the property in March 2022. Next the member addressed the submission by CWH that Ms Madgwick had terminated the Form 6 agreement by an email on 19 April 2022. The member noted Ms Madgwick said in that email "I have no intention of selling any further units for [CWH]".
• [15] The member said this clearly referred to units not yet sold and not to events that had already occurred. The member said "I do not accept that Ms Madgwick terminated the contract by that email insofar as it related to events preceding the email." The member further found that the email of 19 April was preceded by earlier emails from Ms Madgwick to which CWH had failed to respond. This was not contested either below or on appeal. She had, the member found, "sought information to further the sale of the units". Ultimately the member found the Form 6 to be a binding agreement which entitled Ms Madgwick to commission if she came within the circumstances contemplated in part 7 of the agreement.
• [16] The member next considered whether Ms Madgwick brought that event about or whether there was a "break in the causal chain".
• [17] Next in the judgment, the member addressed a decision relied on by CWH of Outerbridge (t/as Century 21 Plateau Lifestyle Real Estate) v Hall [2020] NSWCA 205 ('Outerbridge').
• [18] The appellant in the proceedings below sought to rely on that decision to show that Ms Madgwick was not the effective cause of sale as that test required more than a mere introduction of the eventual buyer of the property. What was required in Outerbridge, the member said, was that agent must play a role in the negotiations to conclude the sale.
• [19] The member noted in his judgment below that CWH had relied on an affidavit of Ms Fisher who did not however give evidence and so was not able to be cross examined.
• [20] Ms Fisher said it was she who introduced the Steeles. The member ruled that to allow evidence by way of an affidavit when Ms Steele was not able to give evidence would be a denial of procedural fairness. I interpose that, in any case, it is irrelevant since it seems to be alleged only that Ms Fisher introduced the Steeles in the sense that it was she who told them of the retirement village with the result that they attended upon Ms Madgwick and had discussions with her about the village.
• [21] CWH also sought to rely on the evidence of Nicole McMullen who was the manager of the retirement village and was also, she said, the director of CWH. The member accepted Ms McMullen's evidence that further steps not involving Ms Madgwick were taken to affect the two sales. That was not disputed.
• [22] However, the member said that Ms Madgwick's unrefuted evidence was that "she showed the ultimate buyers around the village, had regular contact with them, introduced them to [CWH], and in the case of the Steeles, took their deposit. She then actively sought to procure further documentation to advance the sales... however [CWH] did not reply to her requests."
• [23] The member found this failure to provide Ms Madgwick with the information she sought prevented her from furthering the sales and ultimately brought about her termination of the Form 6 agreement.
• [24] In such circumstances, and in reliance on the authority of Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571, the member found that Ms Madgwick remained entitled to her commission on her resignation and subsequent inability to complete the necessary steps to effect the final completion of the sale because there was not a breach in the necessary causal relationship between her introduction of the buyers and the eventual sale by her. She remained, he found, the effective cause of sale. It was, rather, the actions of CWH in not providing her with the information which was the breach in the causal chain.
• [25] The member found Ms Madgwick "had a 100% chance of advancing those sales through to completion" but for CWH's breach of the contract she had with it.

• [26] The grounds of appeal are set out in a document filed in QCAT on 28 September 2023. Essentially, they are:

(a) the applicant was not the "effective cause of sale" as required by the Form 6 and enunciated in Outerbridge;

(b) the member was in error in finding that Ms Madgwick was entitled to commission for doing no more than "report to 'Expressions of Interest'" and took no further part in the sale process;

(c) the member failed to acknowledge the significance that the relevant properties were not in fact completed until July 2022;

(d) the member failed to find that Ms Madgwick terminated her Form 6 on 19 April 2022 rendering it impossible for her to be the effective cause of sale.

• [27] Subsequently CWH has sought to rely on fresh evidence in the appeal. It wishes to rely on two joint affidavits of Mr and Mrs Steele and Mr and Mrs Maybury.
• [28] On the appeal, CWH sought to rely on this fresh evidence, saying that those affidavits state clearly that Ms Madgwick had no involvement in completing the sales process after merely providing two referrals in the first instance.
• [29] Before proceeding further, I note that the issue is not whether Ms Madgwick was involved in "completing the sales process" but, in accordance with the Form 6, whether under the terms of that agreement she was entitled to commission. The terms do not refer to completing the sale process but to the introduction of contacts resulting in a completed sale, as I have earlier set out.
• [30] Before returning to the question of the circumstances in which a court will allow fresh evidence on appeal, it is helpful in this particular case to refer briefly to the two affidavits both affirmed on 3 November 2023.
• [31] Both of the Mayburys said:

(a) up until the time they signed a product disclosure statement and form of lease and residential agreement, they solely dealt with Nicole McMullen as agent for CWH;

(b) they saw the advertisement in the Bay Bulletin and had an initial meeting with Ms McMullen on 26 March 2022 who managed the transaction all the way through the settlement;

(c) at no time did we ever deal with any other sales agent in connection with the lease of or purchase of a unit.

• [32] They also said that prior to signing "any paperwork in connection with the purchase, we may have visited the CWH retirement village and looked at other units however ultimately, we decided to await the sale of the village from the prior owner (namely, the liquidator) to CWH and then await construction of the units.
• [33] The affidavit of the Steeles is in very similar terms. They do say however that they had a single meeting with Ms Madgwick and signed an "expression of interest" but had no other dealings with her.
• [34] The appeal material before the court below includes:

(a) an inquiry - tour form relating to the Steeles dated 19 January 2022;

(b) Ms Madgwick's evidence that on that day the Steeles paid a $1,000 deposit;

(c) a deposit confirmation in relation to the Steeles' proposed purchase of Unit 84 for $380,000 dated 21 February 2022;

(d) evidence in payment of a $1,000 deposit on 25 February 2022 to CWH's bank account with the ANZ bank.

• [35] Additionally there was a similar deposit confirmation on 25 March 2022 in relation to the Mayburys payment of a $1,000 deposit on Unit 38 on the same date.
• [36] Ms Madgwick said she had arranged both deposits.
• [37] The admission of fresh evidence on appeal is exceptional and ordinarily involves three criteria. In Clarke v Japan Machines (Aust) Pty Ltd [1984] 1 Qd R 404, 408 ('Clarke v Japan Machines') Thomas J, with whom Campbell CJ and Andrew SPJ agreed, said:

The classic statement of what amounts to "special grounds" for reception of further evidence upon an appeal was approved recently by Lord Bridge in Langdale v Danby [1982] 3 All ER 129, 137-138. Three conditions must be fulfilled.

First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.

• [38] Examination of the facts of this case and of that exposition of the law very clearly illustrates why the evidence of the Steeles and the Mayburys should not be admitted in this case. First, it cannot be shown the evidence was not available if CWH had used reasonable diligence to obtain it. The submission made by CWH that it was only when Ms McMullen (who was said to be a director of CWH) gave evidence that it became apparent that further evidence was required is untenable. It was necessary for CWH to properly prepare the matter for trial including having available to it the evidence required to prove its case. The statement Ms McMullen gave in evidence was not inconsistent with her written evidence and ought to have been anticipated. In any case, even if it was not, that is not a reason not to have called the Steeles and the Mayburys if their evidence was required.
• [39] Further, it appears doubtful that the evidence would be likely to have an important influence on the case. Further, it appears to have significant credibility issues. As I have said, the statement of the Mayburys that they dealt only with Ms McMullen is contrary to the written documentation of paying a $1,000 deposit to Ms Madgwick. The statement that they dealt with no other agent appears false.
• [40] So too the Steele's concession of signing only an expression of interest appears to underscore their payment of the $1,000 to Ms Madgwick to which I've referred.
• [41] In those circumstances, where it is necessary for all three criteria set out in Clarke v Japan Machines to be met before the "fresh evidence" would be admitted. On the appeal, the application to so admit it is dismissed.
• [42] Much of the submission of CWH turns on its view that Ms Madgwick was not the effective cause of sale. As I identified earlier the Form 6 in this case does not use the term "effective cause of sale" which was used however in the relevant contract in the case of Outerbridge on which CWH relied. In this case the term in the Form 6 is of providing a "contact resulting in the sale" and of commission being payable for sales "if a contract is entered into and settlement of the contract occurs".
• [43] Once it is accepted that Ms Madgwick did in fact provide CWH with the contact to both the Steeles and the Mayburys, as the member found, and which cannot in my view be doubted, and it is again found that both couples completed signed contracts for the purchase of units in the complex, then there is no reason in the absence of evidence of breach of contract by Ms Madgwick, why she should be disentitled to the agreed commission.
• [44] I accept there is no reason to doubt the member's acceptance of Ms Madgwick's evidence as to the circumstances in which she terminated the Form 6 agreement and no reason to conclude this disentitled her to the agreed commission.
• [45] Once it is accepted the breach in the relationship between Ms Madgwick and CWH was the company's failure to respond to Ms Madgwick's request for information, then it is clear the break in the causal connection between her introduction of the purchasers and the eventual sale, was the act of CWH and not Ms Madgwick.
• [46] In the circumstances I do not accept that the member's conclusion below that Ms Madgwick is entitled to her claim for commission is in any way wrong.
• [47] Both the application to admit fresh evidence and the appeal are dismissed