Alan K Davies Pty Ltd v Agaiby

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 The primary judge dismissed the claim on the basis that the agreements had been validly rescinded under s 925A of the Corporations Act 2001 (Cth) and were therefore unenforceable.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.