Al Maha Pty Ltd v Liu

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.