Al Maha Pty Ltd v Liu - [2020] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Al Maha Pty Ltd v Liu [2020] NSWCA 108
Hearing dates: 21 May 2020
Decision date: 11 June 2020
Before: Basten JA at [1];
Macfarlan JA at [6];
Leeming JA at [7].
Decision:
Appeal dismissed with costs.

Catchwords: CONTRACT – agency agreement – entitlement to commission – agency agreement drafted by client – client an experienced property developer – agreement did not comply with Property, Stock and Business Agents Act 2002 (NSW), s 55 – agent sued to recover unpaid commission – whether discretion under s 55A available and should be exercised
Legislation Cited: Property, Stock and Business Agents Act 2002 (NSW), ss 55, 55A
Property, Stock and Business Agents Regulation 2003 (NSW), Sch 7, cll 4-6, 9 and Sch 8, cll 1-7
Corporations Act 2001 (Cth), s 588FM
Cases Cited: Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295
Dumoine Holdings Pty Ltd v United & Commercial Holdings Ltd (1985) 13 ACLR 448
Re Appleyard Capital Pty Ltd; 123 Sweden AB v Appleyard Capital Pty Ltd [2014] NSWSC 782; (2014) 101 ACSR 629
Re Dudley Engineering Pty Ltd and Companies Act [1968] 1 NSWR 483
Re Freightlines Northern Territory Pty Ltd (In Liq) [2000] 2 Qd R 384; [1999] QSC 209
Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339
Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106
Category: Principal judgment
Parties: Al Maha Pty Ltd (Appellant)
Wei Liu (Respondent)
Representation:
Counsel:
D Talintyre, M Cobb-Clark (Appellant)
R Wilson SC, A Norrie (Respondent)
Solicitors:
Blackstone Waterhouse Lawyers (Appellant)
Revolance Legal (Respondent)

File Number(s): 2019/135932
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

[2019] NSWDC 106

Date of Decision:

5 April 2019

Before:

Strathdee DCJ

File Number(s):

2016/305475

HEADNOTE

[This headnote is not to be read as part of the decision]

In 2014, the appellant, a property developer, and the respondent, a real estate agent, entered into an agency agreement setting out the terms on which the appellant was to pay commission to the respondent for the sale of apartments off the plan in a development owned by the appellant. The agency agreement was drafted by the appellant and on the appellant’s letterhead.

Between July and November 2014, the respondent sold 10 apartments in the development for which the respondent received $126,170 commission. The respondent commenced proceedings against the appellant, claiming outstanding commission in the amount of $226,840.

The Property, Stock and Business Agency Act 2002 (NSW) (now the Property and Stock Agents Act 2002 (NSW)) and the Property Stock and Business Agents Regulation 2003 (NSW) governed, among other things, a licensee’s entitlement to commission. Section 55 of the Act provided that a licensee was not entitled to commission unless the services were performed pursuant to an agency agreement which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCA 108
Decision Date: 11 June 2020

CaseChat Overview and Summary

Al Maha Pty Ltd (the appellant) appealed a decision of the primary judge concerning an agency agreement with Mr. Liu (the respondent). The dispute arose from an agreement where the respondent acted as an agent for the appellant in relation to a property development. The appellant, an experienced property developer, had drafted the agency agreement. The respondent sued to recover unpaid commission allegedly due under this agreement.

The central legal issues before the Court of Appeal were whether the agency agreement complied with the requirements of section 55 of the *Property, Stock and Business Agents Act 2002* (NSW), and if not, whether the discretion conferred by section 55A of the Act was available and should be exercised in favour of the respondent to allow recovery of the commission.

The Court of Appeal affirmed the primary judge's finding that the agency agreement did not comply with section 55 of the Act. Applying established principles, the Court held that the discretion under section 55A was not enlivened in circumstances where the agreement was fundamentally flawed and did not meet the statutory requirements. The Court reasoned that to exercise the discretion in this case would undermine the protective purpose of section 55, which is designed to ensure clarity and certainty in agency agreements for the benefit of parties, particularly those who may not be sophisticated in property dealings. The appellant's experience as a developer did not override the statutory requirement for a compliant agreement.

The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Al Maha Pty Ltd v Liu [2020] NSWCA 108
Hearing dates:	21 May 2020
Decision date:	11 June 2020
Before:	Basten JA at [1]; Macfarlan JA at [6]; Leeming JA at [7].
Decision:	Appeal dismissed with costs.
Catchwords:	CONTRACT – agency agreement – entitlement to commission – agency agreement drafted by client – client an experienced property developer – agreement did not comply with Property, Stock and Business Agents Act 2002 (NSW), s 55 – agent sued to recover unpaid commission – whether discretion under s 55A available and should be exercised
Legislation Cited:	Property, Stock and Business Agents Act 2002 (NSW), ss 55, 55A Property, Stock and Business Agents Regulation 2003 (NSW), Sch 7, cll 4-6, 9 and Sch 8, cll 1-7 Corporations Act 2001 (Cth), s 588FM
Cases Cited:	Banque Commerciale SA (en liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11 Cherry v Steele-Park (2017) 96 NSWLR 548; [2017] NSWCA 295 Dumoine Holdings Pty Ltd v United & Commercial Holdings Ltd (1985) 13 ACLR 448 Re Appleyard Capital Pty Ltd; 123 Sweden AB v Appleyard Capital Pty Ltd [2014] NSWSC 782; (2014) 101 ACSR 629 Re Dudley Engineering Pty Ltd and Companies Act [1968] 1 NSWR 483 Re Freightlines Northern Territory Pty Ltd (In Liq) [2000] 2 Qd R 384; [1999] QSC 209 Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 Wei Liu v Al Maha Pty Ltd [2019] NSWDC 106
Category:	Principal judgment
Parties:	Al Maha Pty Ltd (Appellant) Wei Liu (Respondent)
Representation:	Counsel: D Talintyre, M Cobb-Clark (Appellant) R Wilson SC, A Norrie (Respondent) Solicitors: Blackstone Waterhouse Lawyers (Appellant) Revolance Legal (Respondent)
File Number(s):	2019/135932
Publication restriction:	Nil
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 106 Date of Decision: 5 April 2019 Before: Strathdee DCJ File Number(s): 2016/305475