Apartment Superstore Pty Ltd v Burstone Australia Pty Ltd
[2010] VSC 592
•17 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL AND EQUITY DIVISION
COMMERCIAL COURT
LIST D
No. 10064 of 2009
| APARTMENT SUPERSTORE PTY LTD (ACN 055 037 600) | Plaintiff |
| v | |
| BURSTONE AUSTRALIA PTY LTD (ACN 065 294 564) | Firstnamed Defendant |
| MAY WAN KHOR | Secondnamed Defendant |
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JUDGE: | Davies J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15-17 November 2010, 6 December 2010 | |
DATE OF JUDGMENT: | 17 December 2010 | |
CASE MAY BE CITED AS: | Apartment Superstore Pty Ltd v Burstone Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 592 | |
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CONTRACT – Commercial contract – Identification of contract – Identification of terms –Whether special conditions part of contract – Incorporation of terms by signature – Whether contract terminated – Whether plaintiff estopped by conduct from denying termination.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr J. F. Bleechmore | Glennen Burstyner & Co |
| For the Defendant | Mr M. S. Goldblatt | Khor & Burr Solicitors |
HER HONOUR:
The first defendant (“Burstone”) is the developer and vendor of the Alto Apartments at 594 St Kilda Road, Melbourne. The plaintiff (“AS”) is a real estate agency that was given an exclusive agency from Burstone to sell some of the apartments. AS has sued Burstone under the terms of its exclusive agency for commission on sales of apartments that it claimed were effected by other agents during the currency of its exclusive agency. Burstone raised as its principal defence that it had terminated AS’s exclusive agency before those sales were made, and that the relevant apartments sold by other agents had been listed with AS on a non-exclusive basis only.
The parties were in dispute about whether the agreement had been terminated. Burstone alleged that the agreement terminated thirty days after 12 September 2007, being the date on which the second defendant (“Ms Khor”), a director of Burstone, gave AS verbal notice of termination in exercise of Burstone’s contractual right to terminate, if AS had failed to meet a sales target by 31 August 2007. AS contended that:
(a) it was not given any notice of termination, verbal or otherwise; and
(b) that any purported exercise of the right to terminate was invalid because the contractual provision in the sole agency agreement that conferred the right on Burstone to terminate could not be exercised before 14 October 2007 and required that notice be given in writing.
The different positions put into issue the contract that each party contended constituted the exclusive agency agreement.
A. Identification of the contract constituting the exclusive agency agreement
Burstone contended that the exclusive agency agreement was constituted by “Heads of Agreement” that the parties signed on 18 January 2007, an Exclusive Authority Sales Agreement (“Exclusive Sales Authority”) that the parties signed on 27 February 2007 insofar as it was consistent with the Heads of Agreement and a “Heads of Agreement” signed and dated 18 June 2007.[1] The Heads of Agreement were in like form and each contained a provision that entitled Burstone to terminate for non-performance on thirty days notice, if AS did not meet a sales target by 31 August 2007. No requirements of form or content of notice were prescribed. The provision read:
[1]First and Second Defendant’s Defence filed 22 December 2009, 2[4].
Non Performance by Agent
In the event of [AS] failing to meet mutually agreed (i.e. between the Vendor and Agent) sales target being 50% by 31/8/2007 the Vendor may at its discretion terminate this agreement by giving the Agent 30 days notice.
AS contended that the Heads of Agreement were superseded by the Sales Authority which constituted the formal contract between the parties and, relevantly, that it was a term of that contract, contained in the special conditions, that the right to terminate was exercisable by thirty days notice in writing if AS did not meet a sales target by 14 October 2007. The provision that AS relied on read:
3. The Exclusive Authority Period will commence on the date of this Authority and continue until the earlier of:
(a)the date of sale of the last of the Apartments constituting the Total Sales Target; or
(b)the date 30 days after the date [Burstone] gives [AS] written notice of termination of the Exclusive Authority Period which [Burstone] may give only if and when [AS] fails to achieve sales of 50% of the Total Sales Target by 14th October 2007.
It was not common ground that the special conditions were terms of the contract, although the Exclusive Sales Authority that Ms Khor signed of behalf of Burstone provided that:
This Exclusive Sales Authority includes the attached Special Conditions which in the event of ambiguity takes precedent over this Sales Authority and attachments.
Burstone argued that clause 3 of the special conditions was not binding on it because it had not agreed to the special conditions and no special conditions were attached to the Exclusive Sales Authority document. Burstone argued that the non-performance provision contained in the Heads of Agreement continued to govern Burstone’s contractual right to terminate the exclusive agency after the Sales Authority was signed.
B. The facts
(a) Heads of Agreement
Burstone and AS had been in discussions since late 2006 about AS’s potential involvement in selling Alto Apartments. Those conversations for the most part took place between Ms Khor on the one hand and Jack Brukarz, a director of AS, and Leon (or Lee) Stone, who was a project marketing manager at AS, on the other hand. Burstone was looking to market the Alto apartments and AS was seeking an exclusive agency. One hundred apartments remained unsold at the end of 2006 which Ms Khor asked Mr Stone to review for marketability and pricing. He completed that task in early January and faxed his review to Burstone on 7 January 2007. On 9 January 2007 there was a meeting between Ms Khor, Mr Brukarz and Mr Stone at which general agreement on an exclusive selling arrangement was reached. Heads of Agreement were prepared by Mr Brukarz which he presented to Ms Khor for signing at a meeting on 18 January 2007 which Mr Stone also attended. At the meeting, the Heads of Agreement were reviewed and discussed and various amendments agreed on before Mr Brukarz and Ms Khor signed the document.
The Heads of Agreement did not prescribe any set period for the duration of the sole agency but rather made the agency terminable for non-performance, if AS did not reach a sales target by 31 August 2007. Otherwise the sole agency was to terminate when all available units (as determined by the vendor) had been sold. The Heads of Agreement provided that:
Apartment Superstore Pty Ltd is the sole agent for the project until the sale of the last available units (as determined by the vendor).
The words in parenthesis were inserted by Ms Khor. Although her evidence on why she added the words was somewhat confusing and contradictory, it is sufficiently clear that it was to give Burstone the right to determine which apartments would be allocated to AS to sell as sole selling agent, which Burstone did, initially allocating 61 of the remaining 100 unsold apartments to AS. That list changed from time to time as certain apartments were withdrawn and substituted.
The Heads of Agreement also made provision for the rate of commission payable, the schedule of the payment and a performance incentive by way of a bonus commission due and payable on the sale of the last of the available units if a specified total sales value was achieved. The final provision was the non performance clause.
It was not controversial that the terms as set out in that Heads of Agreement as amended constituted a binding contract. It was also not controversial that the parties intended that a formal contract would be prepared and entered into, formalising the Heads of Agreement. However I formed the view that Ms Khor was not entirely candid in her evidence. Ms Khor was capable of looking after the interests of Burstone in relation to the appointment of AS as sole agent. She is a property developer with some 28 years of experience. In addition she has carried on practice as a solicitor for a similar period and she holds a current practicing certificate. However, aspects of her evidence did not sit conformably with the objective evidence of the parties’ intentions, as evidenced by the Heads of Agreement.
Despite the clear terms of the Heads of Agreement, Ms Khor repeatedly stated in her evidence that she only intended to give AS a six month exclusivity period. Her evidence was that the rate of commission agreed on was based on a six month exclusivity period in respect of an allocated list of apartments. She said that in earlier meetings before the Heads of Agreement were signed she had told Mr Brukarz and Mr Stone that she would consider an exclusive arrangement for a limited number of apartments on the basis of a specified commission “but only if the period of exclusivity did not exceed 6 months”. Later in her witness statement when giving evidence about a meeting at which she was asked whether she would extend the 31 August 2007 performance date, she said that she “restated” her “previous advice” that she “would not enter into an exclusive arrangement of any sort for more than six months”. However that was not the contract that she entered into. No fixed duration was specified in the Heads of Agreement that she signed. Rather the appointment was expressed in terms that the sole agency would inure “until the sale of the last available units”, subject to the contractual right of Burstone to terminate for non performance if the sales target was not reached by 31 August 2007. Significantly, the agreement contemplated an ongoing contractual relationship beyond 31 August 2007 in the event that the sales target was met by that date. The contract that she signed gave Burstone the right to terminate only if there was non performance by 31 August 2007. It did not give Burstone the unconditional right to terminate after 31 August 2007 and more particularly it did not prescribe that the exclusivity period was a fixed term of six months only.
The sales target date of 31 August 2007 also took on importance. It is readily apparent that the contract allowed for a performance period in excess of six months, albeit by six weeks. Mr Brukarz’s evidence was that Ms Khor agreed to allow AS a clear six week marketing period before the six month performance period commenced to run, taking the commencement of the performance period to the end of February 2007. The six week marketing period was to enable the relevant marketing materials to be collated and the marketing arrangements to be put into place. Ms Khor said nothing about this in her evidence. The omission has significance in the context of her evidence that she would not agree to any extension of the sales target date. I will return to this.
The parties were in substantial disagreement about many of the relevant facts and the reliability and credit of the witnesses was put into question by both parties. Contested facts included whether only one copy of the Heads of Agreement was signed and dated on 18 January 2007 or whether there were two copies, each of which were signed and dated that day.
Mr Brukarz’s evidence was that he took two copies of the Heads of Agreement to the meeting on 18 January 2007 and that the amendments agreed on were handwritten on each copy which he and Ms Khor then signed and dated. He also said that he wrote on one copy the name of Burstone’s solicitor, Anthony McDonough and on the other copy the name of AS’s solicitors, Patrick Sweeney, Donaldson Trumble. He was adamant that both copies were signed that day by himself and Ms Khor and that he dated each copy 18 January 2007. Mr Stone confirmed that there were two copies and that amendments were made to both copies on 18 January 2007. Mr Brukarz was also adamant that he gave Ms Khor the copy with AS’s solicitors written on it that Ms Khor has identified as the new Heads of Agreement that the parties signed and dated 18 June 2007. Mr Brukarz was unable to explain why the counterpart that he said that he gave Ms Khor that day bears the date “18/06/2007”. He acknowledged that all but for the “6” was in his handwriting but stated that the “6” was not his handwriting. He suggested that there had been an alteration of the digit from “1” to “6”.
Ms Khor denied that she signed two copies. She said that she only signed one and that she did not get a copy. She also said that Mr Brukarz did not give her the name of AS’s solicitor until the meeting on 18 June 2007 when they signed new Heads of Agreement. Burstone’s case was that the 18 June 2007 Heads of Agreement was a new agreement in replacement of the 18 January 2007 Heads of Agreement and the Exclusive Sales Authority. It was her evidence that Mr Brukarz dated it “18/06/2007”.
I found the evidence of both witnesses on this point unsatisfactory and self serving. The suggestion that the date was altered was unsupportable on the evidence and, in my view, a self justification by Mr Brukarz for the date that appeared there. I could not conclude on the evidence on the balance of probabilities that the “6” in the date “18/06/2007” was not his handwriting. That being said, although the document bore the date “18/06/2007” it did not follow necessarily that Mr Brukarz in fact signed and dated it on 18 June 2007. It is open on the evidence to conclude that the date “18/06/2007” was written by him in error and should have instead been a “1”. It is reasonable to infer that it was in error for a number of reasons. First, the copy of the Heads of Agreement which he did date 18 January 2007 had originally been dated 18 January 2006, with the “6” crossed out and the “7” substituted. It is not improbable that Mr Brukarz mistakenly wrote “18/06/2007”. Secondly the evidence of both witnesses was that things were happening in haste that day. Again it is not improbable that Mr Brukarz mistakenly wrote the date as “18/06/2007” instead of “18/01/2007”. Next the only differences between the two documents are the handwritten amendments. Otherwise they are in identical terms. The handwritten amendments for the most part are identical also. The 18 January 2007 Heads of Agreement contained hand written changes in the hand writing of both Mr Brukarz and Ms Khor. Mr Brukarz’s evidence was that he copied those amendments onto the other copy but in his haste left out “several amendments”. In fact the only amendments not substantially copied were the name of the vendor, although there was the same crossing out of “Cabstone Pty Ltd” and the words ‘and balance on settlement’ in relation to the payment of commission. Next the uncontroversial fact was that both parties intended to have a formal agreement prepared. The evidence showed that each party intended their solicitors to be involved in the preparation of the formal agreement. It is entirely consistent with that intention that Mr Brukarz would write the names of the respective solicitors on each copy and retain for himself the copy of the Heads of Agreement on which he had written the name of Burstone’s solicitor and leave with Ms Khor the other copy with the name of AS’s solicitors (being the copy dated 18/06/2007). Next as the evidence will show, it is entirely improbable that the parties entered into a new agreement on 18 June 2007. Ms Khor’s evidence in her witness statement was that on or about 18 June 2007 Mr Brukarz came to her office without an appointment and handed her a Heads of Agreement that was undated and unsigned but with hand written amendments. She stated that when he handed the document to her he said the words to the effect “you needed my solicitor’s name for preparation of the formal document” and that until then she had not been advised of the name of AS’ solicitors. She stated that he then proceeded to sign and date the document in front of her. Ms Khor stated that it was her understanding that this document superseded the previous agreement and that she surmised that AS would probably propose a new agreement to her on the basis that:
(a)In June 2007, AS had only sold 2 out of the 60 apartments allocated after 3 and a half months, so had less than 2 and a half months to sell another 28 apartments. That meant that there was no realistic expectation of the anticipated sales target to allow any bonus commission to be achieved.
(b)I had previously discussed with Lee that when the exclusive sales agreement was terminated, Burstone would be prepared to enter into a new arrangement with AS in which they would receive a smaller allocation, which would be a more achievable sales target on a non-exclusive basis (say, $10 million of apartments). Therefore, I concluded that Jack wanted to enter into a new agreement to make it more realistic in terms of sales so that there was some prospect of them getting bonus commissions.
That evidence must be rejected. On her own evidence she said that she “checked the document which looked to be essentially the same as the previous Heads of Agreement signed in January 2007”. If so, it was self evident that the document presented to her was in identical terms as the extant agreement. Her “surmising” of the reason for the “new agreement” was fanciful and self serving. Next there was no objective evidence supporting that a meeting was held on 18 June 2007. Whereas Ms Khor was able to produce diary records of entries for other meetings with Mr Brukarz, no such diary record was produced for the 18 June 2007 meeting. She proffered in her witness statement that Mr Brukarz had come in without an appointment. Having regard to the totality of the evidence I am prepared to find that this was a reconstruction by Ms Khor. Mr Brukarz’ evidence was that there was no reason for him to enter into another Heads of Agreement which was incomplete in itself and more or less an identical copy of what he had signed and executed on 18 January 2007. Next there was no evidence that Ms Khor made any attempt to chase up a copy of the Heads of Agreement or the name of AS’s solicitors before she signed the Exclusive Sales Authority on 27 February 2007. I find it improbable that Ms Khor, with her legal and business experience, would not have insisted on being provided with a copy of the Heads of Agreement before she signed the authority. Next I found Ms Khor’s recount of what was said at that apparent meeting on 18 June 2007 contradictory and unpersuasive. Her evidence was that he came in with the Heads of Agreement and said “ ‘you wanted the name of my solicitors to prepare formal document’ so I accepted it because that’s what I haven’t had by that time”. She said that she “needed him to give me his solicitor’s names so that we can start preparing formal documents”. She then said that she signed the Heads of Agreement on 18 June 2007 because she saw “that it was quite similar terms and at that time, because I know they are not going to be able to perform these Heads of Agreement, I just signed it”. She then went on to say that Mr Brukarz’s solicitors “were supposed to prepare the formal documentation … because he prepared the Heads of Agreement”. When asked what formal documents she was talking about she answered:
In the Heads of Agreement I made it subject to preparation of formal documents agreements, because it was done in such a hurry that I wanted to make sure that they are the proper terms and understanding between the parties are put into a formal agreement.
I readily accept her evidence that she wanted a formal agreement to be entered into and that responsibility had been left with Mr Brukarz for that to happen. However, as the evidence showed, Ms Khor had been provided with a draft of the formal agreement by Mr Brukarz before she even signed the Exclusive Sales Authority on 27 February 2007. By June 2007 on her account, there was no need for any formal agreement giving effect to the terms of the January Heads of Agreement because AS had no real prospect of meeting the sales target date of 31 August 2007.
I find on the evidence on the balance of probabilities that both Heads of Agreement were signed on 18 January 2007 and that Ms Khor was given the copy of the Heads of Agreement bearing the date “18/06/2007”. I find on the evidence on the balance of probabilities that there was no meeting on 18 June 2007 and that the document that she described as the “new agreement” in fact was the counterpart that she received on 18 January 2007. I am satisfied on the evidence, on the balance of probabilities, that Mr Brukarz mistakenly wrote “18/06/2007” on Ms Khor’s copy of the Heads of Agreement.
(b) Draft formal agreement
The next relevant event was the preparation of a formal agreement. The evidence showed that Mr Brukarz did have a formal agreement prepared which he forwarded to Ms Khor for handing to Burstone’s solicitors, which shared the same premises as Burstone. Ms Khor received the documents under cover of an undated letter from Mr Brukarz to Burstone’s solicitors. The letter stated:
We have been instructed by May Khor to submit our Sale Authority for the above mentioned property in accordance with the Heads of Agreement dated 18/01/2007 a copy of which is attached.
We request that the documentation be approved and executed by your client at your earliest opportunity. Should you have any queries please feel free to contact me.
Your sincerely,
Jack Brukarz
The documents that came with the letter were:
· Special Conditions 1 to 6 (two pages);
· REIV general conditions;
· REIV notices and disclosures;
· an REIV rebate statement;
· an REIV Privacy Act 1988 Collection and Use of Personal Information statement; and
· a personal guarantee that Ms Khor was to provide in respect of Burstone’s obligations under the Exclusive Sales Authority.
The special conditions relevantly contained a clause in the following terms:
3. The Exclusive Authority Period will commence on the date of this Authority and continue until the earlier of:
(a)the date of sale of the last of the Apartments constituting the Total Sales Target; or
(b)the date 30 days after the date the Vendor gives the Agent written notice of termination of the Exclusive Authority Period which the Vendor may give only if and when the Agent fails to achieve sales of 50% of the Total Sales Target by 31 August 2007.
Ms Khor gave no evidence in her witness statement about receiving a draft of the formal agreement. In cross examination she agreed that she received and reviewed the draft sometime before 27 February 2007, before she signed the Exclusive Sales Authority. She was asked whether she recognised the documents attached to that letter as the formal agreement that she expected would be forthcoming after the January meeting. She answered:
No, because it wasn’t given to me by the solicitors. It was Jack who – this was an enclosure in Jacks’s letter and I didn’t really take much notice of it because I’m still waiting for the, you know, the solicitors to prepare formal documents.
She was asked “which solicitors were they?” and she said that she “didn’t know at that time”. She said that although she “scanned through” the special conditions she “just thought, you know, its not what we really agreed on with the Heads of Agreement, so I just left it”. The following exchange then occurred:
DR BLEECHMORE: I see. You looked at it enough to ascertain that it didn't reflect the heads of agreement; is that what you are saying?
MS KHOR: I didn't go into the details of this document. I still don't really understand what this document means, the special conditions.
DR BLEECHMORE: But you read them?
MS KHOR:I read it, but not really to understand it. It's too confusing for me.
Her evidence that she did not understand the special conditions cannot be accepted. Not only did she read the special conditions, she also made some notations on the document. Significantly, Ms Khor did not make any notation to clause 3 which introduced the requirement that written notice of termination be given.
The following exchange took place in cross examination:
DR BLEECHMORE: You didn't notify or send a copy of this document as changed back to Jack Brukarz, did you?
MS KHOR:No, because we are not dealing with solicitors and I'm not dealing with it either, or I wasn't dealing with it either. I couldn't do anything with it because we didn't have the heads of agreement at that time.
That explanation was not persuasive. It is implausible in my view that Ms Khor read the draft formal agreement, including the special conditions, before 27 February 2007 but did nothing with it on her evidence because she did not have a copy of the Heads of Agreement and because, on her evidence, the special conditions were not really what they had agreed on she, “just left it”. The documents were provided under cover of a letter to Ms Khor’s solicitors and she had been expecting the formal agreement from Mr Brukarz or his solicitors. Later on in cross examination she offered another reason. She said that she “wasn’t going to deal with the special conditions that were sent to [her] by Jack Brukarz until we have a formal agreement”. She then went onto say that “I believe I didn’t even realise there are special conditions attached to that, to that letter” and then contradicted herself yet again by saying “I noticed the special conditions being there at that time”. Her evidence was confusing, contradictory, vague and, in my view, evasive.
Significantly Ms Khor did not respond to Mr Brukarz either to inform him that she did not have the Heads of Agreement which she needed for the formal agreement to be drawn up or to tell him that the special conditions were not in her view reflective of the Heads of Agreement. It is even more surprising that she failed to do so given that the letter under cover of which the documents were sent advised that the Sale Authority was submitted “in accordance with the Heads of Agreement dated 18 January 2007 a copy of which is attached” and requested approval of the documentation and execution by Burstone at the earliest opportunity.
In my view, it is reasonable to infer that she read and understood the special conditions and had no specific objection to the terms. The special conditions as drafted were fuller and more precise than the Heads of Agreement, as would be expected, but not different in effect and substance. Specifically, it is reasonable to infer that Ms Khor read and understood the notice requirement in clause 3. It is unsurprising that a commercial contract would specify that any notice had to be in writing.
(c) The request for an extension of the performance period
The next relevant event was the meeting at which Ms Khor was asked if she would agree to an extension of the performance period. Mr Stone placed the meeting at some time before 16 February 2007 and Ms Khor placed it some time before 21 February 2007. It is reasonable to assume that the meeting occurred after Ms Khor had received the undated letter with the draft formal contract because clause 3 in the special conditions in that version still had 31 August 2007 as the performance date.
AS’s case was that Ms Khor agreed to an extension of the sales target date to 14 October 2007 in lieu of 31 August 2007. Ms Khor denied this.
Mr Stone gave evidence that he raised the suggestion at a meeting with Ms Khor that the sales target date be extended because only a very limited amount of material requested from Burstone had been received by AS in the weeks following the signing of the 18 January Heads of Agreement and there were many delays. His evidence was that Ms Khor had agreed that it would be reasonable to extend the target date by an additional six weeks due to the time required for completion and collation of all the marketing material. It was not his evidence that an actual date was agreed on. He thought that Mr Brukarz fixed 14 October 2007 with Ms Khor but he did say that the revised date was reflected in the special conditions attached to the Sales Authority that Ms Khor signed on 27 February 2007.
Mr Brukarz also gave evidence about lost time in marketing occasioned by delays, albeit that the evidence was in very general terms. It appeared from Mr Brukarz’s evidence that Mr Brukarz did not personally speak to Ms Khor about the extended performance date but rather was told by Mr Stone that Ms Khor had agreed to a six week extension. He had his solicitors amend clause 3 of the special conditions to reflect the new sales target date.
Ms Khor denied that there had been any delay in getting marketing material to AS and denied agreeing to a sales target date of 14 October 2007. Her evidence was that the relevant date was always 31 August 2007, as provided for in the Heads of Agreement. She recalled a meeting that she was able to place sometime between 14 February and 21 February 2007 at which Mr Brukarz and Mr Stone were present at which she was asked by Mr Brukarz whether she would extend the 31 August 2007 target sales date and that she responded “no”. She said that she restated her previous advice that she would not enter into an exclusive arrangement of any sort for more than six months and that there was no reason for an extension. She also said that from her point of view she did not want to give them beyond 31 August 2007, which she explained to them. The explanation that she said she gave them was that:
(a)AS were an unknown quantity and I was unsure how many sales they would make and therefore I did not want to tie up a chunk of apartments for any longer period;
(b)There was no reason to extend because all marketing materials that were required for marketing were available, including the marketing suite. AS’ sales staff could have access to all marketing materials, including bringing prospective purchasers to the marketing suite;
(c) Other agents were already working on that basis and were selling with our existing marketing material;
I prefer Mr Stone’s account of the meeting to the evidence of Ms Khor. First the general unreliability of Ms Khor’s evidence was shown by her often confusing, imprecise, contradictory and sometimes self serving evidence. Secondly, the unreliability of her account was evident when she once again contradicted her own evidence, this time about when the meeting was held at which the extension of time was raised. Her evidence in her witness statement, in which she placed the meeting between 14 February and 21 February, was based on diary records but in cross examination she changed her testimony and said that it was sometime after 18 June 2007 after the June Heads of Agreement were signed. That evidence appeared to me to be opportunistic and unsupportable.
The plausibility of the account given by Mr Stone is supported by other objective considerations. First, if there had been any delay in marketing arrangements being put into place, it was consistent with the original intent of the parties as evidenced in the Heads of Agreement signed on 18 January 2007 that Ms Khor would agree to a six week extension. Secondly, Burstone did not have a fixed six month exclusivity arrangement with AS. The Heads of Agreement that Ms Khor said that she discussed, reviewed and amended with Mr Brukarz before she signed it expressly contemplated that AS would have an on-going sole agency beyond six months in the event that the agreement was not terminable for non-performance. Thirdly, although Mr Stone and Mr Brukarz were inconsistent in their evidence insofar as Mr Stone thought that the date of 14 October 2007 was fixed by Mr Brukarz with Ms Khor, there was no substantial inconsistency between an agreement for a six week extension and 14 October 2007 as the performance date, particularly as the initial six week marketing period had been intended to run to the end of February and the exclusivity period only commence to run from the end of February.
I find on the evidence on the balance of probabilities that Ms Khor did agree with Mr Stone at a meeting held sometime before 27 February 2007 that it would be reasonable to extend the sale target date by six weeks.
(d) the formal contract
The next contested piece of evidence was whether the special conditions in their revised form were part of the bundle of documents presented to Ms Khor on 27 February 2007.
Mr Stone’s evidence was that he had the meeting with Ms Khor on 27 February 2007 at the request of Mr Brukarz for the purpose of executing the formal agreement. He said that a meeting had been arranged initially between Ms. Khor and Mr. Brukarz for 26 February but that it had been cancelled. He said that he phoned Ms Khor “to arrange to drop in on the 27th… and deliver these documents to her”. The documents were given to him by Mr Brukarz on 26 February. He made some notations on the first page of the Sales Authority and gave the documents back to Mr Brukarz for signature. Mr Brukarz gave them back to him signed on 27 February prior to his meeting with Ms Khor. He was specific that the documents that Mr Brukarz gave him to take to the meeting comprised the two page Sales Authority, the REIV attachments to that Sales Authority, the special conditions with the revised clause 3, the guarantee and indemnity. He also thought that the “crossed out” version of the schedule of apartments was attached. Mr Stone said that Ms Khor reviewed the documents in detail and read through them thoroughly before signing them and that he witnessed her signatures.
Ms Khor’s evidence was that the meeting occurred on 26 February 2007. She said that she recalled this because the Exclusive Sales Authority had already been signed and dated 27 February 2007 by Mr Brukarz but it was only 26 February. She said that the meeting had been scheduled for later that day but that he had rung to say he was coming in the morning. She said that Mr Stone only presented the first two pages of the Exclusive Sales Authority to her for signing, which she did, and “certainly” no document entitled “Special Conditions”. She recalled that it was at a later meeting with Mr Stone that she signed other REIV documents and a personal guarantee. She also said that the only document he produced was a two page sales authority which she signed. She said that Mr Stone had told her that he had some purchasers waiting and that the sales authority had to be signed by her before he could sign the purchasers up. She said that she was aware that estate agents are required to obtain a written authority from a vendor before selling a property. She said that Mr Stone gave her no advance notice before coming in that he wanted her to sign any document.
In cross examination Ms Khor was asked whether she was certain that the special conditions were not with the documents produced to her by Mr Stone. She stated “yes, to the extent I haven’t noticed any special conditions”. Ms Khor was also asked whether she had asked Mr Stone where the special conditions were. Once again, her answers in cross examination were often imprecise, vague, contradictory and evasive. At one point Ms Khor maintained in the witness box that she had only just seen the reference to special conditions on page 2 of the Exclusive Sales Authority for the first time in the witness box. At another point she said “[n]o, because I’m not concerned about the special conditions”. She stated “[t]his was presented to me by Lee Stone on that morning rushing through saying that they had purchasers waiting and just asked me to sign this exclusive sale authority because we haven’t got the formal agreement done yet, and it came with Jack’s signature already signed, so I just signed it”. She was asked whether she was saying that she signed that document without reading the words that she was signing. She answered:
Yes, because they presented – like, even in the front page it presented as an REIV exclusive sale authority. I have seen a lot of those before with special conditions, so therefore I just signed, I guess.
The following exchange took place in cross examination:
DR BLEECHMORE: Did you read this document? You say you didn't read the document at the time when you signed it, is that right? The document, I mean the first two pages, 148 and 149?
MS KHOR: Yes.
DR BLEECHMORE: You didn't read it?
MS KHOR: I would have read it, not as - I mean, not word-for-word, but I would have glanced and known what it was about.
DR BLEECHMORE: All right. You didn't see the reference to the special conditions?
MS KHOR: If I saw that I would have - at that time I guess I would have assumed that it will be the REIV standard special conditions.
DR BLEECHMORE: I see. So in fact you did turn your mind to the question and you did read those words and you interpreted them in a special way; is that right?
MS KHOR: No, I really didn't actually take note of this.
DR BLEECHMORE: When you say that you assumed they referred to the standard REIV special conditions, when did you make that assumption?
MS KHOR: Just then. Just now.
Again I found her evidence unreliable. It is unlikely on the evidence that the meeting happened on 26 February 2007 and not 27 February as stated by Mr Stone and corroborated by Mr Brukarz. I find it implausible that the first time that Ms Khor saw the reference to special conditions in the Sales Authority was in the witness box. She was on notice that special conditions were to be attached to the Exclusive Sales Authority. She had been provided with a copy of the proposed special conditions by AS prior to 27 February 2007 which she had reviewed. She did not ask for the special conditions before she signed the Exclusive Sales Authority.
Furthermore, the two page Exclusive Sales Authority contained no operative terms and made no sense without the special conditions. The Exclusive Sales Authority simply contained definitional provisions – namely, the “exclusive authority period” by reference to the period “as set out in the Special Conditions”, the “vendor’s asking price” “as set out in the special conditions”, the “agent’s commission” “as set out in the special conditions” and the “dollar amount of estimated commission” “as set out in the special conditions”.
Mr Stone’s reliability as a witness was questioned. It was submitted that Mr Stone had no existing memory of the events and that his evidence concerning the documents that he presented to Ms Khor for signing was not credible and was unreliable. Two matters in particular were focused on. Mr Stone had given evidence that hand writing that appeared on the version of the special conditions that AS contended formed part of the formal contract was the hand writing of Ms Khor and that she had written on those special conditions in his presence. It is evident from a consideration of the hand written comments that they would not have been written by Ms Khor. Although that aspect of Mr Stone’s evidence could not be accepted, it does not follow that his evidence generally was unreliable. Certainly it indicates to the Court that the Court needs to treat with caution the evidence that was given but where that evidence can be shown to be consistent with objectively determined facts, the reliability of the evidence is able to be established.
It was also contended that his evidence was inconsistent with two letters that he wrote to Ms Khor and with an email sent by the operations manager at AS to Burstone. The first letter was on 14 March 2007. In that letter Mr Stone wrote:
… I was surprised to find that the following items, which you forgot to sign and bring with you to the meeting on Tuesday, were not in the package:
a.Exclusive Authority and Commission Agreement. With Schedule One attached.
…
We intended to release Alto on The Boulevard to the sales consultants tomorrow. However, we cannot do so until we receive the Exclusive Authority and Schedule One that tells us what we can sell in the first instance. …
Please forward item (a) to my attention at the Elsternwick offices post haste.
The following day on 15 March 2007 Mr Stone faxed a handwritten note to Ms Khor which stated relevantly:
May. The following documents were emailed at 1.45pm. However, your office advised that they haven’t received them?
(1) The Exclusive Authority and the Heads of Agreement (4 pages) I gave you a New Schedule on Tuesday hence, replacing the one that was attached. So attach the new one.
…
(3) We still require the actual attachments to the Exclusive Authority to replace the “Heads of Agreement”.
Attached to the fax was the first two pages of the Exclusive Sales Authority which was executed by Mr Brukarz and Ms Khor on 27 February 2007, and a copy of the Heads of Agreement executed on 18 January 2007. The email referred to was the email from the operations manager.
Mr Stone could not recall this correspondence. It was urged on the Court that these documents provided confirmatory evidence that the only documents that Ms Khor was provided on the 27 February 2007 were the first two pages of the Exclusive Sales Authority. It was also submitted that the correspondence provided confirmation that the formal agreement was constituted only by the two page “Exclusive Sales Authority” and the Heads of Agreement. Much was sought to be made of the failure of AS to discover the original of the formal contract. It was put that the documents claimed by AS to constitute the formal contract were simply a bundle of documents that had been “cobbled together” and claimed by AS to constitute the formal contract which had not been proven. I disagree. The correspondence actually confirmed that the formal sales agreement comprised a bundle of documents, in particular, “attachments” to the Exclusive Sales Authority in replacement of the “Heads of Agreement”. Those attachments logically must have included the special conditions, which contained the relevant terms replacing the Heads of Agreement. Furthermore, it is implicit from the letters that Ms Khor had the attachments as Mr Stone was requesting them from her.
C. Conclusion
I find that the formal contract was constituted by the two page Exclusive Sales Authority, the revised special conditions containing a sales target date of 14 October 2007 and the other standard form REIV documents (which are not in dispute). Ms Khor’s signature on the Exclusive Sales Authority was conclusive evidence that Burstone agreed to be bound by the special conditions, including special condition 3. The fact that the special conditions were not separately signed does not mean that they did not form part of the formal contract. The reference to the attached special conditions was sufficient to incorporate the terms without the need for the special conditions to be signed separately. Furthermore the terms of the special conditions had been agreed on, whether or not the special conditions were before Ms Khor when she signed the two page Exclusive Sales Authority. The incorporation of those special conditions into the formal contract was not negated because Ms Khor, on her evidence, signed the Exclusive Sales Authority without reading or understanding the special conditions.[2]
[2]Seddon N C, Ellinghaus M P, Cheshire and Fifoot’s Law of Contract (9th Aust ed) 424 [10.26]; Toll (FGHT) v Aphafarm (2004) 219 CLR 165.
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[3] the High Court reaffirmed the significance of the act of signing a document intended by the parties to create legal relations. The Court stated that it was settled legal principal that knowledge of the terms need not be established for the party to be bound by the contract:
[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.
….
[47] … Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.[4]
Thus the act of signing is sufficient to bind the party, even though the party may not be aware of all the terms of the contract, subject to any vitiating factor such as misrepresentation or mistake.[5]
[3](2004) 219 CLR 165.
[4]Ibid [45] – [47].
[5]Ibid [57].
There was no vitiating factor. In the first place, Ms Khor knew that special conditions had been drafted for appending to the Exclusive Sales Authority as she had been provided with a draft of those conditions sometime prior to the meeting at which she was asked to agree to extend the sales target date. She agreed that she had reviewed those conditions.
In the second place, the Exclusive Sales Authority was redolent with references to the “special conditions”. The document could not make sense without those special conditions. Ms Khor has carried on business as a property developer for some 28 years and had carried on practice as a solicitor for a similar period. She holds a current practising certificate. It is implausible that Ms Khor would not have appreciated that the special conditions formed part of the terms of the Exclusive Sales Authority.
In the third place, the special conditions substantively formalised the Heads of Agreement.
In the fourth place, I have not accepted Ms Khor’s evidence that she did not agree to the new performance date. The evidence supported the finding on the balance of probabilities that she did agree to a six week extension. The evidence of Mr Stone about the meeting was credible.
I find that Burstone was bound by clause 3 of the special conditions to the Exclusive Sales Authority. It follows that the contractual right to terminate could not be exercised by Burstone before 14 October 2007 and required notification to AS in writing. It follows also that the oral notice of termination that Ms Khor claimed to give Mr Brukarz on 12 September 2007 was an invalid exercise of the contractual right to terminate.
D. Termination
It is necessary to make a finding on whether Ms Khor did purport to give notice of termination on 12 September 2007 because it was contended for Burstone that AS accepted that the exclusive agency terminated as from mid-October when the termination took effect and that both Burstone and AS thereafter conducted themselves on the basis that AS’s agency was on a non-exclusive basis. It was claimed that in those circumstances AS is now estopped from maintaining that the Exclusive Sales Authority was not terminated.
Ms Khor’s evidence was that she gave oral notice to Mr Brukarz and Mr Stone of termination of the exclusive agency agreement at a meeting at her office on 12 September 2007. She said she decided to terminate the agency on her return from overseas on 4 September 2007 when she found out that AS had only sold 9 apartments. Her evidence was that she said at the commencement of the meeting “So that things are clear before we discuss what you came to discuss, the 31 August 2007 deadline has now passed and I hereby give you notice to terminate the exclusivity agreement'”. She said that there was no objection from Mr Brukarz or Mr Stone. Her evidence was that “they went on to discuss about marketing”.
Mr Brukarz and Mr Stone refuted that Ms Khor said anything to them about terminating the exclusive agency, although Mr Brukarz did say in cross examination that he was aware of the Defendants rights to terminate but that he did not expect Ms Khor would terminate the exclusive agency on 12 September 2009. Each of them recalled that the meeting was convened to discuss the progress of sales and a marketing program to boost the sales of the apartments. Mr Brukarz had a proposal for Ms Khor for funding the cost of advertising out of the bonuses payable to AS. According to Mr Stone Ms Khor responded positively to the proposal. Mr Brukarz said that they also had a discussion about the licence agreement that Burstone had with AS for a display area at AS’s showroom which was to terminate on 13 October 2007 and agreed that the licence would be renewed on a monthly basis, if AS achieved a certain target of sales.
The content of the meeting is supported by two pieces of correspondence: a letter from Ms Khor to AS dated 13 September 2007, which reflected the resolution of the new licence agreement; and an email from Mr Brukarz to Ms Khor on 21 September 2007 confirming the details of that meeting. The email said nothing about the termination of the agreement nor about the basis on which AS would sell Alto Apartments for Burstone in the future. Rather, it dealt with the two issues that Mr Brukarz and Mr Stone said were discussed at the meeting with Ms Khor.
It was submitted that the evidence of Ms Khor should be preferred to the evidence of Mr Brukarz and Mr Stone. It was put that in his witness statement Mr Brukarz was adamant that no meeting did take place on 12 September 2007 but at trial he recanted and acknowledged that a meeting had occurred on 12 September 2007 and that his memory of it was quite detailed. Mr Brukarz explained that there was no diary entry in his diary for the 12 September 2007 but he realised there had been a meeting on that date when he read his email of 21 September 2007 which had not been available to him at the time that he prepared his witness statement. Mr Brukarz was challenged on this by reference to discovery that had been made at an earlier point in time which included the email of 21 September 2007. It was submitted that his evidence about when he regained his memory was not credible. It was further submitted that the actions of Mr Brukarz and Mr Stone belied their denials that notice of termination was given. Mr Brukarz had stated in his witness statement that he would have “propose[d] further marketing initiatives, or a new approach, in an attempt to increase the level of sales” if notice of termination had been given. Ms Khor gave evidence that this was precisely what occurred after she opened the meeting by giving notice. She also gave evidence that while she listened to their marketing proposal at this meeting, she did not give any positive response during the meeting or to their written request for approval of their marketing initiatives. Her evidence instead was that she “rejected” their proposals outright.
I am satisfied on the balance of probabilities on the evidence that Ms Khor did not give notice of termination at that meeting. The best evidence of what was said at the meeting are the two pieces of correspondence. That objective evidence is inconsistent with the claim that notice was given. Furthermore, Ms Khor’s evidence was again self-serving. The letter she wrote on 13 September 2007 referred to a “new agreement”. In evidence she maintained that this was a reference to a new Exclusive Sales Authority agreement. That patently cannot be accepted as correct. The reference plainly was to the new licence agreement.
E. Estoppel
I would, in any event, reject the contention that AS conducted itself so as to lead Burstone to assume that it had accepted that the exclusive agency agreement was terminated from mid-October 2007.
That claim was based substantially on Ms Khor’s dealings with Andrew McBeth, a sales manager at AS. Mr McBeth was introduced to Ms Khor around mid October 2007 as the replacement for Lee Stone who left AS for reasons that are extraneous to this case. Ms Khor gave evidence that she told Mr McBeth in his role as the new sales and marketing manager replacing Mr Stone that the agreement had been terminated and that any sales from 14 October 2007 onwards would be sold on a non-exclusive basis. AS would be able to keep its existing list, however it would not be exclusive and Burstone would be free to remove apartments from the list without any need for AS’s consent. AS could also request apartments that were not on the list but would need to check the availability of apartments before offering them to potential purchasers.
Mr McBeth confirmed that he had discussions to that effect with Ms Khor. He said that he understood from his discussions with Ms Khor that the AS list was a loose working document and that AS did not have those apartments exclusively for sale. He said he explained this arrangement to all AS sales staff. He said that all his dealings thereafter with Burstone were conducted on that basis.
Another AS employee, Ms Wood, gave evidence that she was told by Mr McBeth about the non-exclusive basis of the arrangement between Burstone and AS.
Critically, neither employee had personal knowledge of the contractual relations between AS and Burstone. They did not say that the agency was conducted any differently to the way in which it had been conducted previously. Apartments could and were withdrawn under the terms of the exclusive agency, without obligation on Burstone to substitute apartments. No separate authorities were produced for apartments sold after mid-October 2007.[6]
[6]Estate Agents Act 1980 (Vic) s 49A.
Mr McBeth gave evidence that for sales after October 2007 he took documents including sales authorities from Burstone to AS and that the authorities were signed by Mr Brukarz. On examination he backed away from that evidence. In evidence he also stated that Madeleine Cleaver had provided the authorities to him but when pressed as to whether this occurred in every case, he said – “[s]he basically gave me the contracts and on occasion that I can recall an invoice for payment and an authority that was signed. Obviously I can’t recall who it was signed by”. When asked whether he may be mistaken as to whether the documents included an authority, he stated that he could not recall. Although he was able to recall one specific occasion when he took an authority, he mentioned one of the sub penthouses. However it was a matter of common ground that this apartment was not included within the original allocation that had been subject to the Exclusive Sales Authority. That penthouse was sold under an independent authority authorised by AS. Burstone was unable to produce any written authorities in relation to those sales and the records of AS which were produced did not record specific authorities for those sales. I have found Mr McBeth’s evidence about the existence of such authorities unsatisfactory.
Ms Khor’s evidence was similarly unsatisfactory. She testified that she remembered receiving some authorities “and then that was already signed by somebody, I think it was already signed by Jack, and I just signed them and just returned them to Apartment Superstore”. When asked whether the authorities came to her signed by Mr Brukarz, she said “I’ve seen the authorities that are signed by Jack Brukarz, yes. I have seen, yes”. Immediately afterwards, inconsistently, she said “I don’t know whether they were signed by Jack, but I saw Jack’s signature in some … “. When asked to be careful in giving her evidence and then further questioned as to whether some or all of those authorities were signed by Mr Brukarz she professed not to remember and said “I don’t remember. I don’t recall … no, I don’t recall who signed those authorities”.
I have also taken into account the other specific matters raised by counsel for the defendants in his written and oral submissions. None of those other specific matters in my view support the claim of estoppel.
I reject the contention that AS led Burstone into an assumption that it no longer had exclusivity as from mid October 2009. I also reject the contention that that Burstone relied on conduct of AS and acted to its detriment by engaging in or allowing other agents to sell apartments that were on the exclusive list of AS. It was Burstone’s case that it terminated the exclusive agency and that it acted consistently with the state of affairs that Ms Khor held out to be the case. The evidence did not demonstrate otherwise.
F. Heads of Agreement 18 June 2007
It was contended for Burstone that the Heads of Agreement signed on 18 June 2007 was a new contract between the parties, albeit in like terms to the 18 January 2007 Heads of Agreement. I have dealt with this earlier in the judgment. That submission cannot be accepted. Apart from the fact that it was unnecessary for legal relations to be created between the parties in June 2007, I am satisfied on the balance of probabilities that the June Heads of Agreement were actually signed on 18 January 2007 and the date misstated.
G. The final payment
It was contended for Burstone that AS received a payment from Burstone in May 2009 on the basis that AS accepted it in full and final satisfaction of all claims that AS had against Burstone. The evidence relied on for this contention was evidence from Ms Khor and her personal assistant Lai Fong Yee. Ms Khor gave evidence that on the morning of 29 May 2009 Mr Brukarz called her and asked if it was ok for him to attend Burstone’s office to collect a cheque for the outstanding commission owing to AS. She agreed that he could come and she then asked Lai Fong Yee to prepare a cheque for the amount calculated as owing together with a letter to AS stating that the payment was for the full and final amount owing to AS. Then Mr Brukarz attended at Burstone’s office where Ms Khor told him that she would get his cheque ready together with the letter stating that the payment was in full and final settlement of the amount owing from Burstone to AS and that Mr Brukarz “made no adverse comment about the letter”. She then said that, in the presence of Lai Fong Yee, she said to Mr Brukarz words to the effect “Jack, this is the full and final payment, I will get Lai Fong Yee to write you a letter confirming such” and that he responded with words to the effect “It’s ok May, you can trust me”. In fact no letter was ever provided to Mr Brukarz. Lai Fong Yee’s evidence was that she forgot notwithstanding that she was reminded on at least two further occasions by Ms Khor to prepare the letter. It is apparent that her failure was not followed up by Ms Khor. Mr Brukarz denied that he accepted the payment in full and final settlement.
The defence has not been made out. The evidence fell far short of showing that any agreement was reached that the amount which AS was paid in May 2009 was in full and final settlement of all amounts owing under the exclusive agency agreement.
H. Adverse Inferences
Counsel for the defendants submitted that AS had failed to make proper and adequate discovery. It was further submitted that this failure and the failure of AS to call witnesses who had specific knowledge of matters relevant to these proceedings leads to an adverse inference being drawn against AS, applying the principles in Jones v Dunkel.[7] I disagree that any adverse inference can or should be drawn. The submission is premised on a proposition of relevancy to the issues in the proceeding. That premise is highly doubtful in view of the reasons for decision.
[7]( 1959) 101 CLR 298.
I. Personal Guarantee
Ms Khor was also sued on a guarantee and indemnity that she gave to AS in respect of Burstone’s obligations.
Ms Khor defended the claim against her on the basis that:
(a) no consideration was given by AS in exchange for the execution of the personal guarantee as the standard form REIV documents executed by Ms Khor on Burstone’s behalf were solely to enable AS to commence sales of apartments to purchasers that AS had in place already; and
(b) the guarantee, in any event, was of obligations of Burstone under the Heads of Agreement.
I find that the guarantee and indemnity were given in consideration of AS entering into the Exclusive Sales Authority constituted by the bundle of documents which included the special conditions. Accordingly, this defence also fails.
J. Approved Affiliate Sales
Finally it was submitted for the defendants that AS’s claim for additional commissions relating to sales made of Alto Apartments by third party estate agents was payable only if AS had approved such third party estate agents “in writing” at its sole discretion. It was submitted that no approval in writing was given and accordingly that the term was not complied with and that AS has not established its right to commission. However the intent of the approved affiliate sales provision, on the proper reading of the special conditions, was to protect the interests of AS. In other words, AS had the sole selling agency from Burstone. The requirement of approval in writing concerned the appointment of such third party agents to make affiliate sales. The sole exception to the sole and exclusive agency was that apartments could be sold as approved affiliate sales. Approval in writing of third party agent sales was not a condition of AS’s right to be paid commission on such sales under the Exclusive Sales Agreement. It had that entitlement by virtue of the fact that it was given the exclusive right to sell those apartments. It was a condition of the right of Burstone to appoint third party agents to sell apartments that it had allocated to AS to sell as sole agent, without being in breach of that exclusive agency. This defence must also fail.
K. Conclusion
The plaintiff is entitled to judgment on its claim. This conclusion raises one further matter for determination. The parties have agreed on the methodology for determining the amount for which judgment should be entered. However they are in disagreement about whether certain apartments should be taken into account. Those apartments fall into two categories – apartments that were not in the original allocation of apartments but added subsequently to the list (306, 307, 707, 1006, 1206, 1508/1509, 1611/1612); and apartments that were on the original list but which were consolidated without an amendment to the original list (1608/1609). Counsel for the defendants argued that only those apartments on the original list were subject to the exclusive authority. This submission is rejected. The contractual arrangement both under the Heads of Agreement and under the formal contract plainly provided that the apartments subject to the authority were those apartments that Burstone determined from “time to time” to be the apartments allocated to AS to sell as the sole selling agent and were not solely those allocated in the original list. Counsel for the defendants also argued that any addition to the apartments for sale under the exclusive agency had to be in writing and that as none of the apartments in issue were on the original list, which was the only list in evidence, those apartments should not be included in calculation of the commission owing to AS. This submission should also be rejected. Burstone made those apartments available to AS to sell under the excusive agency which AS accepted. That agreement was not vitiated by the failure, if there was a failure, simply to record the allocation in writing. Accordingly all of the apartments in issue are to be taken into account.
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CERTIFICATE
I certify that this and the 29 preceding pages are a true copy of the reasons for Judgment of Davies J of the Supreme Court of Victoria delivered on 17 December 2010.
DATED this seventeenth day of December 2010.
Associate
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