Alan K Davies Pty Ltd v Agaiby - [2025] NSWSC 1271

Supreme Court

New South Wales

Case Name:	Alan K Davies Pty Ltd v Agaiby
Medium Neutral Citation:	[2025] NSWSC 1271
Hearing Date(s):	24 October 2025
Date of Orders:	30 October 2025
Decision Date:	30 October 2025
Jurisdiction:	Common Law
Before:	Griffiths AJ
Decision:	1. Leave to appeal is refused in respect of Ground 2 of the amended summons filed 17 April 2025 (as further amended with leave on 24 October 2025). 2. The amended summons filed 17 April 2025 (as further amended with leave on 24 October 2025) is dismissed. 3. The plaintiffs pay the defendants’ costs.
Catchwords:	APPEALS — right of appeal on question of law — whether rescission notice under s 925A(2) of the Corporations Act 2001 (Cth) was given within a reasonable period — whether the recipient’s state of mind was an irrelevant consideration — whether the primary judge asked the wrong question — no error established APPEALS — leave to appeal on question of mixed law and fact — whether appeal should be granted under s 40(1) of the Local Court Act 2007 (NSW) — no issue of public importance — lack of proportionality between the monetary amount at issue and the cost of proceeding — leave refused
Legislation Cited:	Aboriginal Councils and Associations Act 1976 (Cth), s 71 Corporations Act 2001 (Cth), ss 766A, 924A, 925A, 925B, 925E, 925F, 925G, 925I Local Court Act 2007 (NSW), ss 39, 40, 41 Supreme Court Act 1970 (NSW), s 101
Cases Cited:	ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1; [2014] FCAFC 65 Alan K Davies Pty Ltd v Agaiby (Local Court (NSW), Brender LCM, 31 March 2025, unrep) Guiseppe v Registrar of Aboriginal Corporations (2007) 160 FCR 465; [2007] FCAFC 91 Namoi Sustainable Energy Pty Limited v Buhren [2022] NSWSC 175 Souaid v Nahas [2019] NSWSC 1132 Styles v Rowley [2023] NSWSC 1053 Woodlawn Capital Pty Ltd v Motor Vehicles Insurance Ltd [2016] NSWCA 28
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Alan K Davies Pty Ltd (First Plaintiff) Alan Davies (Second Plaintiff) Khalaf Agaiby (First Defendant) Zeazaf Agaiby (Second Defendant) Jackie De Abreu (Third Defendant)
Representation:	Counsel: C Koikas (Plaintiffs) MJ Jones (Defendants) Solicitors: Kennedys Law Firm (Plaintiffs) Kazi & Associates (Defendants)
File Number(s):	2025/00149031
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	Local Court of New South Wales
Jurisdiction:	Civil
Date of Decision:	31 March 2025
Before:	Brender LCM
File Number(s):	2023/313897

JUDGMENT

The first plaintiff is Alan K Davies Pty Ltd, a company of which the second plaintiff, Mr Alan Davies, is the secretary and sole director. Mr Davies was banned by the Australian Securities and Investment Commission (ASIC) from providing financial services from 30 March 2020 until 6 May 2023. He has not held a financial services licence thereafter.
The first and second defendants are Mr and Mrs Agaiby. Their daughter, Ms Jackie De Abreu, is the third defendant. She holds a power of attorney in respect of each of her elderly parents. For…

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: [2025] NSWSC 1271
Decision Date: 30 October 2025

CaseChat Overview and Summary

Alan K Davies Pty Ltd and its director, Mr Davies, have appealed a decision of the Local Court of New South Wales, arguing that the primary judge erred in dismissing their claim for commission under a rescission notice issued by the defendants, Jackie and her parents. The plaintiffs sought a 20% commission fee under an alleged oral or written agreement for assisting the defendants to recover premiums paid to an insurer. The primary judge dismissed the claim on the basis that the agreements had been validly rescinded under s 925A of the Corporations Act 2001 (Cth) and were therefore unenforceable. The plaintiffs contend that the primary judge erred in law by considering the plaintiffs’ position on whether the rescission notice was necessary, irrelevant or misconceived when determining that the rescission notice was issued within a reasonable period. They also argue that the primary judge erred in a mixed law and fact decision regarding the same matter, and they seek leave to appeal this point.

The court was required to decide whether the primary judge erred in law by considering the plaintiffs’ position on the rescission notice, and whether the primary judge erred in a mixed law and fact decision regarding the same matter. The plaintiffs claim that the primary judge erred by taking into account the plaintiffs’ position on whether the rescission notice was necessary, irrelevant or misconceived when determining that the rescission notice was issued within a reasonable period. They also contend that the primary judge erred in a mixed law and fact decision regarding the same matter, and they seek leave to appeal this point. The defendants contend that, if error is established, the decision below should be affirmed because Mr Davies was unlicensed to provide financial services at the relevant times and was previously banned, the agreements are contrary to public policy, Mr Davies provided legal advice when he was not a legal practitioner, there was non-disclosure of the commission fee, and Mr Davies was only belatedly joined as a party. They also seek that the costs order made below not be disturbed.

The court found no error in the primary judge’s determination that the rescission notice was issued within a reasonable period. The court held that the primary judge did not consider the plaintiffs’ position on the necessity of the rescission notice as an irrelevant consideration, but rather considered it as one of several factors in determining whether the rescission notice was issued within a reasonable period. The court also found no error in the primary judge’s mixed law and fact decision regarding the same matter. The court held that the primary judge did not err in determining that the rescission notice was issued within a reasonable period, and that the agreements were therefore validly rescinded. The court further held that the plaintiffs had not established any error in the primary judge’s determination. The defendants’ contentions were not accepted by the court, and the costs order made below was affirmed.

The court refused leave to appeal on the basis that there was no issue of public importance and that there was a lack of proportionality between the monetary amount at issue and the cost of proceeding. The court held that the plaintiffs had not established any error in the primary judge’s determination, and that the appeal was therefore unlikely to succeed. The court also held that the cost of proceeding was disproportionate to the monetary amount at issue, and that the appeal was therefore not in the public interest. The court refused leave to appeal, and the plaintiffs’ appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

By an amended summons filed 17 April 2025, Mr Davies and his company appeal and seek leave to appeal from a decision dated 31 March 2025 by the primary judge (Brender LCM). In brief, the first plaintiff commenced proceedings in the Local Court claiming a 20% commission fee under an alleged oral or written agreement for assisting Jackie and/or her parents to recover allegedly exorbitant premiums paid by Mr and Mrs Agaiby relating to two insurance policies. The primary judge dismissed the claim on the basis that the agreements had been validly rescinded under s 925A of the Corporations Act 2001 (Cth) and were unenforceable. Mr Davies and his company appeal on two grounds. They claim that the primary judge erred in law by taking into account an irrelevant consideration (being the plaintiffs’ position on whether the rescission notice was necessary, irrelevant or misconceived) when determining that the rescission notice was issued within a reasonable period, as required by s 925A. They also challenge what is described in the latest iteration of the amended summons as an error of mixed law and fact in relation to the same matter, for which they seek leave to appeal. By a notice of contention filed 7 May 2025, the defendants contend that, if error is established, the decision below should be affirmed because: (a) Mr Davies was unlicensed to provide financial services at the relevant times and was previously banned; (b) the agreements are contrary to public policy; (c) Mr Davies provided legal advice when he was not a legal practitioner; (d) there was non-disclosure of the commission fee; and (e) Mr Davies was only belatedly joined as a party. They also seek that the costs order made below not be disturbed. In early March 2023, Jackie approached Mr Davies seeking assistance in resolving a complaint she had lodged with Resolution Life Australasia Limited (the Insurer) on behalf of her parents regarding the allegedly exorbitant premiums paid by them over many years. The Insurer ultimately agreed to pay a settlement sum of $380,000 to Mr and Mrs Agaiby. In early October 2023, Mr Davies’ company commenced proceedings in the Local Court, seeking 20% of the recouped amount as commission for services provided to the defendants pursuant to an alleged oral agreement made on 4 May 2023 (when Mr Davies was banned) and a written agreement dated 10 May 2023 (when Mr Davies was unlicensed). On 11 November 2024, Jackie served on the plaintiffs a notice of rescission pursuant to s 925A of the Corporations Act. On 6 December 2024, the matter was heard by Brender LCM. The parties provided written closing submissions in February 2025. Mr Davies was joined as a party to the proceeding after he filed a notice of motion dated 12 March 2025 seeking to be joined. On 31 March 2025, his Honour delivered judgment: see Alan K Davies Pty Ltd v Agaiby (Local Court (NSW), Brender LCM, 31 March 2025, unrep) (PJ). Several legal and factual issues were raised by the parties. They will be canvassed to the extent that they are relevant to the plaintiffs’ present claims.