Cooloola Water Holdings loses QCAT appeal over $22k agent commission

The owners of a retirement company ordered to pay a former agent tens of thousands of dollars for her role in two unit sales has asked Qld’s industry watchdog to throw the decision out.

Glenwood agent Kathleen Madgwick (inset) won the order plus $439.75 in expenses in September 2023 when the Queensland Civil and Administrative Tribunal found Cooloola Waters Holdings (manager Nicole McCullen and director Gary Simonite) had failed to pay her two commissions.

The company behind a Tin Can Bay retirement village has lost its bid to overturn an order to pay more than $22,000 in commissions to a former real estate agent who helped broker two sales for them.

Glenwood agent Kathleen Madgwick originally won the order plus $439.75 in expenses in September 2023 when the Queensland Civil and Administrative Tribunal found Cooloola Waters Holdings failed to pay her after the company breached its contract with her.

At the 2023 hearings the Tribunal was told she had been contracted by Cooloola Water Holdings, which runs Cooloola Waters Retirement Village at Tin Can Bay, to find buyers for units at the complex.

It heard Ms Madgwick had built relationships with two prospective buyers across 2021 and 2022.

When the prospective buyers continued to pursue interest in the units Ms Madgwick asked Cooloola Waters Holding for more information, but never received a response.

Glenwood agent Kathleen Madgwick (inset) won the order plus $439.75 in expenses in September 2023 when the Queensland Civil and Administrative Tribunal found Cooloola Waters Holdings (manager Nicole McCullen and director Gary Simonite) had failed to pay her two commissions.

Her position was then terminated in April 2022, but the buyers ultimately purchased the units a few months later in July.

Magistrate Bevan Hughes, who heard the 2023 tribunal, found Ms Madgwick had a “100 per cent chance” of closing those sales and was only stopped by Cooloola Waters Holdings’ breach of her contract.

The company appealed the tribunal’s decision claiming Ms Madgwick was not the “effective cause of sale” and the tribunal erred in finding she was entitled to commission for doing “no more than “report ‘expressions of interest’”.

They argued the tribunal further failed to acknowledge the significance of the sales not being finished until two months after Ms Madgwick left her role, and this made it “impossible” for her to have made the sales.

The company sought to rely on new evidence in affidavits from the buyers which claimed Ms Madgwick had no role in the sale outside referring them.

This appeal was rejected by the tribunal which, in its published ruling, said it could not be shown any evidence in the affidavits was unavailable “if (Cooloola Waters Holdings) used reasonable due diligence to obtain it” during the original hearing.

It was also “doubtful” the affidavits would likely have “an important influence on the case”, with one appearing to have “significant credibility issues”, the published appeal decision said.

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Real estate agent Kathleen Madgwick appeared in Gympie Magistrates Court and won back her lost sales commission from Cooloola Waters Holdings.

The tribunal said a statement by one of the buyers they only dealt with Ms McMullen “is contrary to written documentation” they paid a $1000 deposit to Ms Madgwick as the deal unfolded.

“The statement that they dealt with no other agent appears false,” the tribunal said in its decision.

It rejected the other grounds of appeal too, saying the original contract with Ms Madgwick only required her providing a “contact resulting in the sale”.

“Once it is accepted that Ms Madgwick did in fact provide (the company) with the contact … 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,” the tribunal ruled.

“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.”

Originally published as Cooloola Water Holdings loses QCAT appeal over $22k agent commission