F. That the magistrate erred in law in
(i) failing to hold that the plaintiffs had waived their rights to receive a copy of the second agency agreement;
(ii) by holding that the plaintiffs had not waived their rights despite their having been aware of all material facts at the time of their election to treat the agreement as binding on them;
(iii) that the magistrate erred in law in treating ignorance of the requirements of s42AA(1)(e) as ignorance of a material fact.
Decision
13 It is necessary to state as a preliminary matter that, when I raised the matter, it was accepted there was no argument before the learned magistrate that any inference should be drawn from the failure of Mrs Connors to give evidence, nor that the vendors' case could not be proved without that evidence. Not only was this not argued but it was not stated to be a ground of appeal and it was not sought to argue it before me, other than to state that the vendors' case depended upon the evidence of Mr Connors alone. Thus while this might have been a matter of considerable significance, it does not arise on this appeal and it is possible that some explanation for the absence of Mrs Connors might have been available.
14 There is no basis for suggesting that the learned magistrate reversed the onus of proof. What he did was to accept the evidence of Mr Connors that he had not received the disputed letter and that he had not received a copy of the second agency agreement. That evidence had to be contrasted with the evidence of Mrs Pfeiffer as to the practice in the agent's office. It was open to the magistrate to find as he did. He did not suggest that the agent had to prove that it served a copy of the second agreement.
15 So far as the claim based on failure to give reasons is concerned, this is, for the most part, grounded upon the fact that there was some evidence which indicated that Mr Connors was not an altogether reliable witness. There was no obligation on the learned magistrate to deal with each of these matters in his decision. No doubt they were pointed out to him in submissions and there is no reason to suggest that he did not take proper account of what might be described as lapses in evidence of Mr Connors. He was entitled to accept his evidence on the crucial point, and he was entitled to consider that there was at least some confusion in the evidence of Mrs Pfeiffer as to the dates on the important documents. There were lapses in her evidence as well. While the wording of the disputed letter, by referring to a request for a copy of the second agreement, clearly indicated that it was intended to send this with the letter if that letter were sent, the magistrate was entitled to find that it was not sent. In view of his doubts, which were quite strongly expressed, about the defects in the agent's case on this aspect, he was entitled to accept the evidence of Mr Connors that he did not receive the letter or the agreement, thereby establishing the agreement was not served, because he was satisfied that had the documents been posted they would have been received within the necessary period of forty-eight hours. It follows from this that the grounds of appeal based on errors of law as to onus of proof and evidentiary matters fail. I should add that as there is no appeal on questions of fact, the obligation to give reasons for coming to decisions on questions of fact is not great: See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 and 280.
16 I come to the defence of waiver. This defence was not raised on the basis, if it exists, of abandonment of a right. In any event it is difficult to understand how there can be an abandonment of a right which is unknown. The claim is that the vendors, at a time when they were aware of the material facts, waived the entitlement to recover the commission paid as a debt, by electing to treat the agreement as binding. This is a difficult argument. As put by counsel for the agent, it would mean that once an authority is given, by the vendor with knowledge a sales agreement was required, to an agent to deduct commission from the deposit held by way of payment of commission then the vendor so authorising elects to affirm the right to commission and waives any right under the statute for recovery of it. Assuming for the moment that the right to refuse to pay commission and the right to affirm the agreement to pay commission in accordance with the agency agreement are inconsistent rights or positions bringing the doctrine of waiver through election into play, it seems to me that knowledge of entitlement to be served with a signed copy of the agency agreement within 48 hours is a material fact, without knowledge of which there can be no waiver of the right to refuse to pay commission by election to pay or by paying commission. The magistrate accepted that Mr Connors had no knowledge of the existence of s42AA(1)(e) of the Act and if that is so, his conclusion that election could not be made out was correct. The position may be different in a case of waiver of contractual rights by election; in such a case a party to the contract has knowledge of the terms and thus knowledge of a breach. The position is quite different where the obligation arises under a statute and unknown breach of such statutory obligation is concerned. In such a case those obligations are material facts, although knowledge of loss of the right to commission might not be required for waiver: see Sargent v ASL Developments Limited per Stephen J at 645. In these circumstances it is not necessary to consider whether or not the statutory right of recovery is one which can be subject to waiver.
17 It follows from this that the appeal must be dismissed.
Law Reform
18 The reasons for what would appear to be the harsh provisions of s42AA of the Act are of course perfectly clear. Parliament has decided that vendors should be protected from improper claims of unscrupulous agents and that there should be certainty of agency terms. Nevertheless, reasonable agents ought to be protected from what would be thought to be quite unconscionable claims by vendors, which can only result in unjust enrichment of vendors, who have, without that enrichment, obtained all the benefits which they contracted to get as a result of their agreement with the agent. It is extraordinary to think that a party who has suffered no loss can bring a claim such as the one brought here at any time up to the expiration of six years after the agency agreement was entered into. Urgent consideration should be given by the appropriate authorities to amending legislation to bring a reasonable balance between the rights of honest agents and the requirement to protect vendors from improper claims for commission by agents. At the very least there ought to be some limited time in which any claim for recovery can be made.