Austral Pacific Investment (H.K) Limited v Urban Activation Pty Ltd (No 2) - [2025] SADC 10

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
AUSTRAL PACIFIC INVESTMENT (H.K) LIMITED & ANOR v URBAN ACTIVATION PTY LTD (No 2)
[2025] SADC 10
Judgment of his Honour Judge Slattery
12 February 2025
RESTITUTION - CLAIMS ARISING OUT OF INEFFECTIVE OR ILLEGAL CONTRACTS
REOPENING CASE- FURTHER EVIDENCE
In the first judgment in this action the court held that the applicants failed in their claim against the respondent for unpaid commissions. The applicants were retained to procure in Asia and beyond, purchasers of units in three developments; Realm Apartments in Adelaide South Australia, the Sovereign Blackburn Developments, and the Tao Homes Development in Melbourne Victoria. There were three developers of these buildings Eklipse Capital Pty Ltd (Realm Apartments), Sunbright Investments Pty Ltd (Tao Homes) and Queens Apartments Pty Ltd (Sovereign Blackburn). Each of the applicants procured purchasers for the Realm Apartments Development and at the direction of the Urban invoices of the applicants were directed to the principal for payment. The applicant, Austral claimed for unpaid invoices, in the sum of $857,437.75 and this claim failed. Austral received a payment of $31,243.25 and Urban contends that this payment was made in connection with a without prejudice settlement. There was no evidence about the payer of this amount or the without prejudice aspect of the payment.
In relation to the Tao Homes Development and the Sovereign Blackburn Development all invoices of Global for commissions payable were sent to Sunbright and Queens Apartments respectively at the direction of Urban. Global was paid the sum of $105,625 on invoices for commissions delivered to Sunbright on the Tao Homes Development. Global was paid $13,950 on invoices delivered to Queen Apartments on the Sovereign Blackburn Development. There was no evidence about the actual payer of any of these amounts.
In its cross claim, Urban claimed that it separately paid commissions on commission invoices to Austral and Global: first $74,900 to Austral, and second $100,000 to Global. The receipt of these payments is admitted.
•Whether Urban has satisfied the evidentiary burden up in that it paid to Austral the sum of $31,243.25 on the invoice for the Sovereign Blackburn Development.
•Whether Urban has satisfied the evidentiary burden upon it to prove that it paid to Global the sum of $105,625 for the Tao Homes Development.
•Whether Austral and Global are bound by their admission of the receipt of the sum of $74,900 and $100,000 respectively.

Held:
1.Urban failed to satisfy the evidentiary burden on it to prove that it, and not Sunbright paid the sum of $105,625 to Global in relation to the Tao Homes Development.

2. The proper cross respondent was Sunbright which is not a party to the proceedings.
3.Urban failed to satisfy the evidentiary burden upon it, to prove that it and not Queens Apartments, paid the sum of $13,950 to Global in relation to Sovereign Blackburn Development.

4. The proper cross claimant is Queens Apartment Pty Ltd which is not a party to the proceeding.
5.Urban failed to satisfy the evidentiary burden upon it to prove that it and not Eklipse Capital paid the sum of $31,243.25 to Austral and under what circumstances.

6.      The proper cross claimant is Eklipse Capital which is not a party to the proceeding.
7.      Judgment is in favour of Urban against Austral on its cross claim in the amount of $74,900.
8.      Judgment in favour of Urban against Global on its cross claim in the amount of $100,000.
9.      The cross claim of Urban is otherwise dismissed.
Following the delivery of judgment in this action Urban brought an application seeking the following orders:-
1.That the Respondent’s Cross Claim be re-opened for the limited purpose of tendering as an exhibit in evidence the Affidavit of Stephanie Hunter dated 13 November 2024 filed contemporaneously herewith together with the exhibits thereto.

2.      The costs of this application be in the cause.
3.      Any further order or orders as this Honourable Court sees fit.
This application was supported by an affidavit of a director of Global purporting to provide an explanation of payments made by Urban to Austral and Global but without evidencing Urban’s involvement based upon its pleaded case, or providing any explanation of its failure to address the inconsistency in its pleaded case or its failure to lead this evidence at trial.
Held:
1.      Application dismissed.
Federal Court of Australia Act 1976 (Cth); Uniform Civil Rules 2020 (SA), referred to.
Yorke v Lucas [1985] HCA 65: (1985) 158 CLR 661; Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592; Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 87 ALJR 235; Field v Scholhaven Transport Pty Ltd [1970] 3 NSWR 96; Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589; SA Joseph and Rickard Ltd v Lindley [1906] 3 CLR 280 ; John McCann and Co (a firm) v Powell [1975] 1 All ER 129 ; Bankruptcy v Bradshaw [2006] FCA 22; De L v Director-General, Department of Community Services (NSW) (1997) 190 CLR 207; Matson v Attorney-General (Cth) [2021] FCA 161, considered.

AUSTRAL PACIFIC INVESTMENT (H.K) LIMITED & ANOR v URBAN ACTIVATION PTY LTD (No 2)
[2025] SADC 10

On 5 November 2024, I gave direction to the parties to file any application to lead further evidence, for submissions on the cross claim and on the issue of costs. As the issues connected with the cross claim inform the issue of costs, I will confine this judgment to the cross claim. On the 29 January 2025, I gave the further directions to the parties to file further materials within 7 days. The parties have elected not to file any further submissions and I will proceed accordingly.
The applicant Austral Pacific Investments (H.K) Limited (Austral) in its own right or as the proprietor of the business name Austpac PRD entered into agreements with the respondent Urban Activation Pty Ltd (Urban) to assist Urban in procuring sales of apartments in a number of unit developments in Australia. The first involved an apartment building in Adelaide constructed by Eklipse Capital Pty Ltd (Eklipse) situate at 9-19 Austin Street, Adelaide (The Realm Apartments). The agreement with Austral in its own right is described as a services agreement and is dated 19 December 2016. The agreement with Austral trading as Austpac PRD is called a marketing agreement and is dated 20 February 2017. Both of these agreements were largely in the same terms and it is not necessary that I go into any detail about the content of them. The important issue is the level of commission said to be payable to Austral, in either capacity, upon procuring purchasers for the units in the Realm Apartments Developments.
The pleading of the applicants contend and in my first judgment I have found that Austral’s marketing efforts led to the execution of 43 contracts of sale by prospective purchasers and following the execution of these agreements, Austral was entitled to receive 2.5 % commission on the purchase price shown on the face of the contract. Austral alleged that 32 of the apartments settled with purchasers but Urban contends that only 31 apartments settled. The difference of one unit is immaterial to these considerations.
Austral delivered a first invoice of 2.5 % of the purchase price shown on the face of the executed contracts and then a second invoice for 2.5 % of the purchase price paid on the apartments which settled. Austal pleads that of the amount claimed by it, only $31,243.25 has been paid, leaving a balance owing of $857,437.75. In its defence (Revision 2, FDN 77 dated 20 September 2022) Urban pleads at paragraph 8B.1 that: any contract was made between Austral and Elkipse as vendor; only 31 of the apartments settled; $31,243.25 was paid to Austral in connection with a without prejudice settlement; and it has no liability to pay any balance because Austral was not licensed as a real estate agent in South Australia at the time. Any issue of the confidentiality of the evidence surrounding the without prejudice aspect of this pleading, and for example the operation of s 67C of the Evidence Act did not arise at trial. There was no evidence led on this point and this was one of a number of significant peculiarities in this action.
In relation to the Realm Apartments, the defence of Urban falls into four principal categories: no contract was made between Austral and Urban directly; any contract was made between Austral and Eklipse as vendor; only 31 of the 43 apartments settled; and the only payment made was in connection with a without prejudice settlement (apparently connected with a larger dispute between Austral and Global Link Properties SDN BHD (Global) but this is not clear).
There was no pleading by the parties that there were other invoices delivered or that in respect of those invoices, amounts were paid or payable and so became due. Ordinarily, it is to be expected that in a statement of claim and a defence the applicant would plead the total of its claims and by its defence, the respondent would plead the whole of its answer to each of the aspects to such a claim. In the result, all issues would then be joined and the ‘metes and bounds’ of a dispute properly defined. In light of what follows, this has not occurred in this instance.
There are two other relevant developments. These are called the Tao Homes Development and the Sovereign Blackburn Development. Each of them occurred in Victoria. In relation to each of these developments, the pleading process is similar. The pleadings in relation to the Tao Homes Development, allege that the applicant Global entered into a contract with Urban to procure purchasers of units in the Tao Homes Development, that it procured nine purchasers and that it rendered an initial invoice of $105,625 under its agreement with Urban. The first invoice was paid. It then pleads that the nine units settled and a further invoice in the same amount was delivered to Urban by Global which has not been paid.
The defence of Urban admits its own agreement as an agent with the developer of the Tao Homes Development but it does not admit the payment of the first invoice as well as admitting that there has been a refusal to pay the second invoice. It contends that if the first invoice was paid (and this is not admitted) then it was paid under a mistake of fact or law and that all invoices were directed to the developer, Sunbright Investments Pty Ltd (Sunbright) for payment and so at least implicitly, intending to convey that Sunbright was the entity liable to pay the invoice. The mistake of fact or law is said to be that the applicant was not entitled to seek or retain any payment for work done as it was not a licensed real estate agent in Victoria. It appears intended that the entity Sunbright was labouring under this mistake.
The effect of this pleaded defence is that the correct respondent is the developer Sunbright, not Urban. And, Urban does not admit that it paid Austral the sum of $105,625 even though Austral alleged that it did. As a result, the current state of the pleadings is unsatisfactory most probably because Austral did not distinguish the payer of that sum. There was no specific evidence on this topic led by Urban. At paragraph 30 of Exhibit A3 the affidavit of Yuen Chi Wah of 19 July 2023 (FDN 121) the deponent states:-
‘Invoices
30On 25 February 2017, Jame Leong, an employee of Global, was requested to address the Tao Home Invoices to the vendor (Sunbright) and not to UA. Accordingly, moving forward, any invoices in relation to Tao Home were addressed to Sunbright Pty Ltd and not UA.’
The reference to UA is an acronym for Urban. The invoice that was paid in respect of Tao Homes Development (in the sum of $105,625) (viz paragraphs 18 and 19 of the statement of claim Revision 2) was, at the time and at the request of the agent of Sunbright, directed to it. Austral was paid that invoice on the evidence (implicitly at least) by or on behalf or at the direction of Sunbright. The affidavit filed in evidence by Matthew George (Exhibit R5, 10 August 2023: FDN 128) provides no other information on the topic. The pleadings of Urban positively plead that Austral/Global delivered invoices directly to Sunbright (Tao Homes) (viz defence Revision 2; 20 September 2022 (FDN 77) paragraph 18).
The same position pertains in relation to the Sovereign Blackburn Development (see exhibit A3, affidavit of Yuen Chi Wah, 19 July 2023 (FDN 121) at paragraph 46) and Defence Revision 2, 20 September 2022, (FDN 77) paragraph 31. In his affidavit of evidence, Matthew George (Exhibit R5) fails to address this issue. The evidence before the court is to be found therefore in exhibit A3 and informed by the pleadings.
Exhibit A3, the affidavit of Yuen Chi Wah, at paragraphs [44]-[46] provide as follows:-
‘[44]On or about 12 October 2017, Urban paid the amount of $13,950… leaving an amount of $675 outstanding.
[45]On 23 May 20187, Jane Leong emailed Matthew George at Urban and copied me, and asked to be advised as to who invoices should be directed to.
[46]Similar to the invoices for Tao Home, I recall that Global was advised to issue the invoices to the developer Queens Apartments Pty Ltd rather than to Urban.’
The insistence of Urban that Austral/Global direct all invoices for payment directly to the developer (Sunbright for Tao Homes Development and Queens Apartments for Sovereign Blackburn) is consistent with the pleadings of Urban (viz Defence Revision 2, paragraphs 18 and paragraphs 31).
The evidentiary position, is that the principal in each of the Tao Homes Development and the Sovereign Blackburn Development insisted upon being invoiced directly for the work done by the applicants.[1]
[1] I refer also to the pleading of Austral at paragraph of the Statement of Claim revision 2, that it was also instructed to direct all invoices to Eklipse. It appears that this is what occurred.
In my opinion, a sufficiently strong inference arises on the evidence that on the balance of probabilities, in each case, the principal paid, or authorised its agents to pay on its behalf, a liability which it accepted. Any claim for recovery of any amount so paid, belongs to the principal. Those companies are not parties to these proceedings. It follows that any cross claims of Urban for payment of those amounts must fail.
In relation to the Tao Homes Development, Urban pleads in its defence that as Global is not licenced as a real estate agent in Victoria, it is not entitled to obtain or retain any commission on sales. In relation to the Sovereign Blackburn Development, Global pleads that it entered into a contract with Urban to procure purchasers of units in that development; purchasers for two units were identified (lots G12 and G18); and an invoice was delivered by Global to Urban for the sum of $14,625 for commissions earned. Of that amount, the sum of $13,950 was paid. A second invoice for $14,625 is unpaid as is a separate invoice in the amount of $24,950 for commissions for Sovereign Blackburn services in relation to lot G12. Urban admits that it has refused to make these payments as alleged.
Urban filed and delivered a cross claim (16 September 2022: FDN 76). At paragraph 11 of the cross claim, Urban pleads that under the Realm Services Agreement and or the Realm Adelaide Marketing Proposal agreement, Austral delivered to it invoices which have been paid. Two invoices have been pleaded: of 15 February 2017 and 6 March 2017 in an identical amount of $37,450, in total $74,900. At paragraph 11 of its defence to cross claim (12 October 2022: FDN 79) Austral admits receipt the two payments, in total $74,900. It appears to be accepted that the claims reflected in these invoices are connected with commission claims arising from the sales of units. The peculiarity is the separate treatment of these claims for Realm Apartment sales by Austral. There was no pleading in the statement of claim or in the defence connected with these alleged payments. This payment to Austral is admitted on the pleadings and requires no further proof.
Similarly, at paragraph 18 of the cross claim, and for the first time, Urban pleads that between 18 November 2016 and 8 April 2017, Global received from Urban four payments of $25,000. At paragraph 18 of its defence to cross claim, Global admits receipt of the sum of $100,000 over four payments between 18 November 2016 and 20 April 2017. The same position pertains to these payments and the implicit connection to the Realm Apartment payments is equally peculiar. An aspect of peculiarity is the regularity of the payments of equal amounts. The defence (to the cross claim) does not plead any version of alternative facts to gainsay this admission. The plea and the admission therefore requires no further proof.
In relation to the Tao Homes Development and at paragraph [25] of its cross claim, Urban pleads that pursuant to the Tao Homes agreement, it paid three invoices. The first on 16 May 2017 for the sum of $41,125, the second on 6 June 2017 for the sum of $13,875; and the third on 19 July 2017 in the amount of $50,625. At paragraph [25] of the defence to cross claim, the applicant admits receipt of these three payments in total $105,625.
This admission by Global that Urban paid the first tranche of the amounts payable under the Tao Homes Development agreement ($105,625) is not consistent with the pleadings that I have earlier canvassed in this judgment. For example, the pleadings of Urban in connection with the first invoice for the Tao Homes Development was that at the request of Sunbright, all invoices were directed to Sunbright for payment: viz the defence of Urban at paragraph [18]. As I have earlier recounted, the pleading of Urban about this payment contends that all invoices were delivered to Sunbright and, implicitly at least payments were made by Sunbright or authorised to be made by the agent Sunbright under its express authority. The pleadings and the admission cannot otherwise be reconciled. Taken at its highest from the viewpoint of Urban, the admission of payment is connected only with the fact of payment, not the payer.
At paragraph [32] of the cross claim, the respondent pleads that under the Cannon Hill agreement, it paid Austral the sum of $107,000 on 12 April 2007. At paragraph [32] of the defence to cross claim, Austral admits this payment. As a result of the findings made by me in my first judgment and the parties agreed positions, it is not necessary for me to consider further the payments connected with the Cannon Hill agreement.
In relation to the Sovereign Blackburn agreement, at paragraph [39] of the cross claim, Urban pleads a payment of the sum of $37,450 under invoice Blackburn/pf.17/SN 01/A. At paragraph [39] of the defence to cross claim, Austral pleads that it received the sum of $37,450 from Urban under invoice Realm/pf/17SN03.
I refer again to the pleadings of Urban in its defence (paragraph 31) concerning the invoices connected with the Sovereign Blackburn development that these invoices were directed to the developer Queens Apartments rather than Urban. The evidentiary inference arises that Queens Apartments attended to the payment of the invoice or alternatively, authorised its agent on its behalf, to pay the invoice, such that, Queens Apartments was the payer of the amount received in satisfaction of the invoice.
Also, in absence of proof to my satisfaction about invoice Realm/pf/17SN03, and in the absence of any evidence about that invoice, or any transaction in connection with it, I am not prepared to make any orders on the respondent’s cross clam about that sum. These pleadings had been in place for several years prior to the preparation of the witness statements of Mr George. He does not address the issues raised in these pleadings concerning the payments received by Austral. There is no admission by Austral that it received the sum of $37,450 from Urban in respect of invoice numbered Blackburn/pf17SN01/A.

Further, in relation to the Sovereign Blackburn agreement, at paragraph [46] of the cross claim, Urban pleads that under that agreement it paid Global the sum of $13,950. That payment is admitted at paragraph [46] of the defence to cross claim, however, the same difficulties arise. These invoices were directed to Sunbright which, on the evidence before the court, paid them directly or authorised its agent to pay the invoices.
Urban filed a reply to the defence to cross claim of the applicants (FDN 2: 26 October 2022) which addresses the pleadings of the applicants about the operation and application of each of the legislation in South Australia and Victoria, connected with the licensing of agents. It does not address: the factual issues raised in the defence to cross claim; the inconsistencies between the Statement of Claim (revision 2), defence (revision 2) and the cross claim; the factual discrepancies between the pleadings connected with the applicants and the various developments; and the inconsistent pleadings of Urban about the amount claimed by the applicants and the amounts allegedly paid to them.
The evidence of Austral and Global on these topics is contained within the exhibit A3, the affidavit of Yuen Chi Wah. That evidence satisfies me that a specific request was made for all of the invoices of the applicants to be directed to Eklipse (Realm Apartments), Sunbright (Tao Homes Development) and Queens Apartments (Sovereign Blackburn). Thus, in the ordinary course, those three companies would be the appropriate parties to be joined in any cross claim.
It is necessary then to summarise the position reached on the basis of the pleadings and the parties’ evidence before the court. That summary is as follows:-
1.Austral trades in its own right and is the proprietor of the business name Austpac PRD. Any contract entered into between Urban and the business name Austpac PRD was entered into with Austral as the proprietor of that business name (viz paragraphs 5-13 inclusive of the amended statement of claim). It is not necessary to make any distinction between Austral trading in its own right or as the proprietor of that business name.
2.At first blush the contractual position is that the agreements which inform the whole of the relationship between the parties were made only between the Austral/Global companies and Urban. That is not the pleaded case of Urban and is not the way Urban chose to proceed in its position as the agent authorised by each of the principals. By its pleaded case Urban contends that it was only the agent of each respective principal. Consistent with that position, it directed the applicants to invoice each individual principal directly. The manner by which the applicant companies were paid is a matter for each principal.
3.In its defence to the claim (Defence Revision 2: 20 September 2022: FDN 77) Urban admits that it has refused to pay to Austral the Realm Services invoices and commission invoices, that it was not liable to do so and that the only payment it has made is in the amount of $31,243.25 as part of what it contends was a settlement in an action between it and Austral. It otherwise refused to pay any amounts to the applicant. It pleads that is not liable to do so by operation of the relevant legislation.
4.In relation to the Tao Homes Development, Urban agrees that it entered into a similar contract with Global but denies ever receiving invoices from Global for work done. The invoices were all to be sent to the developer on the specific instructions of Urban and the developer was the entity, implicitly, to make payments on those invoices. The pleadings connected with the identity of the payee of the invoice is addressed by Global at paragraph [18] of the statement of claim where it pleads that those invoices were issued to Sunbright. This is consistent with paragraph [30] and [32] of Exhibit A3, the evidence led on behalf of the applicants. Also, at paragraph [18] of the statement of claim, Global admits that it has received payment of $105,625 on its invoice directed to Sunbright but it has not received payment of the second tranche of its claim of $105,625 (paragraph [24] statement of claim). Urban pleads that the second invoice was addressed to the developer and that there is no liability upon Urban to make any payment on such an invoice. Urban does not plead which entity paid the first invoice. It is implicit on the pleadings that as there was no basis to allege any liability against Urban in relation to the first invoice, it was paid by Sunbright. In relation to the second invoice, Urban, at the very least, implicitly contends that any liability on the invoice belongs to Sunbright.
5.Global contends but Urban denies, there was any contract between them for procuring purchasers in the Sovereign Blackburn Development. Urban contends that any such agreement was made with Austral trading as Austpac PRD Realty. Any invoice of Austral was directed to Queens Apartments and payment of $13,950 was made under a mistaken belief that Austral or alternatively, Global were licensed as real estate agents. Any belief in this respect could only have been held by Queens Apartments which is not a party to the proceedings. That mistaken belief has not been made out on the evidence.
6.In its cross claim and notwithstanding the terms of the defence, Urban contends that it made further payments. In relation to the Realm Apartment Agreement, Urban contends that it paid $74,900 between February and March 2017 (cross claim paragraph [11]). This is admitted (defence to cross claim paragraph [11]).
7.Urban also contends that it paid Global the amount of $100,000 between 18 November 2016 and 8 July 2017 in relation to the work done by Global on the Realm Apartments agreement. This alleged relationship is not pleaded in the defence. Those payments are admitted (paragraph [18] of the defence to cross claim).
8.Paragraph [25] of the cross claim deals with claims for $105,625. The paragraph pleads that the invoices were delivered by Global to Sunbright. It does not plead that Urban paid these amounts. On that basis alone, the counterclaim must fail in respect of that amount. At paragraph [39] of the cross claim, Urban pleads that it paid to Austral the sum of $37,450. At paragraph [39] of the defence to cross claim, the applicants denied payment of that invoice. The burden fell upon Urban to prove payment of the invoice in accordance with its pleadings. There has been no proof of such payment. At paragraph [46] of the claim, an allegation is made that upon the invoice issued by Global to Queens Apartments Pty Ltd under the Sovereign Blackburn Agreement, it paid the sum of $13,950. At paragraph [46] of the defence to cross claim, the applicants agreed that a part payment of invoice 0109 in the amount of $13,950 was made. Although it is not clear to me why that admission was made, it is an admission only about the fact of a payment and so it does not inform the identity of the payer. The pleading disclosed that such payment was made by or on behalf or at the direction of the proper cross claimant, the principal.
In summary, there is no factual basis on the evidence before the court, on the pleadings, or otherwise, in relation to the payments which are described in paragraph [11] or paragraph [18] of the statement of cross claim. The payments referred to therein are not reflected in the statement of claim or the defence.
Separately, the payment of $105,625, at paragraph [25] of the defence to cross claim is an admission that the payment was made. It is not an admission by whom the payment was made and it cannot and does not ‘pull up by the boot straps’ a claim for the benefit of Urban when it did not properly plead its case or lead any evidence on the topic.
In light of the findings that I have made, it is necessary to discuss some matters of principle. This discussion is pertinent to the findings that I have made about the respective legal positions of the parties. It also informs my decisions about the cross claim of Urban. I consider that it is essential that a number of matters be canvassed briefly. These include a discussion of what might be described as self-evident principles which do not require the recitation of authority.
A claimant will ordinarily not sue both the principal and the agent in relation to an alleged wrong. In this case, Eklipse, Sunbright and Queens Apartments were the principals of the agent Urban. I have found that the applicants acted as unlicensed real estate agents. In the usual course, the principal is sued both for the alleged causes of action directly arising against the principal and for any wrongs allegedly committed by the authorised agents of the principal. The converse is also well understood. An agent who is the innocent conduit of information between a principal and a third party recipient is not, without more, liable on the information provided by the agent if it relies upon what it had been told by the principal (even if that information is misleading): Yorke v Lucas.[2] An agent authorised by the principal and who or which is acting with the authority of the principal, including within the usual course of that authority, may bind the principal. Expressed perhaps slightly differently, where the principal intends that an agent acts for [it] in a particular transaction and where the agent intends to accept the authority of the principal to so act, the agent will bind the principal. The statements or actions of the authorised agent, or a combination of them both, will bind the principal. Thus, in the usual course, the principal will become liable for the acts or omissions of the agent.[3] The liability (if any) of the agent becomes a matter then between the principal and an agent and is governed by the terms of the relationship between them.
[2] [1985] HCA 65: (1985) 158 CLR 661; See also Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; (2004) 218 CLR 592 (c.f John Glass Real estate Pty Ltd v Karawi Constructions Pty Ltd [1993] ATPR 41-249) and Google Inc v Australian Competition and Consumer Commission [2013] HCA 1; (2013) 87 ALJR 235.
[3] Field v Scholhaven Transport Pty Ltd [1970] 3 NSWR 96 at [103] per Asprey JA.
In the case at bar, the contention of Urban was that, at all times, the parties to all of the purchase transactions negotiated on the basis that the vendor (in each case) was the principal; thus the transaction leading to the formation of the contracts and then settlements for each development were conducted through real estate agents of the vendors, the principals in each case. These facts formed a foundation of the defence of the respondent in support of the assertion that at all material times, the applicants were purporting to act as real estate agents but were unregistered and were not licenced (in contravention of the legislative requirements of each state).
Urban did not treat this as a complete defence to the applicant’s claims. It did not seek to join any vendors as cross claimants and so, it did not treat those vendors as parties properly to be joined to the proceedings. It did plead a defence (at paragraphs [2A] and [18] of the Defence – Revision 2) that under the Tao Homes Development agreement Global made its agreement to find purchasers for the units with Urban as the agent of principal, the property vendor Sunbright. I accept the submission of the applicants that, on its defence, Urban contends that any payment received by Global was made by or on behalf of a non party, Sunbright. Any right to seek the disgorgement of the sums paid therefore belongs to the contracting party, Sunbright. No application was made to join Sunbright to the proceedings as a cross claimant against the applicant Global even though a primary aspect of Urban’s defence is by extension of reasoning that if there is an obligation on the applicant to disgorge payments received on this development, it is to Sunbright.
At [24] of my first judgment, I identified and discussed the meaning of the pleading of Urban in relation to the Sovereign Blackburn properties, that the invoices of the applicant Global were directed to Queens Apartments. Urban contended that this is a complete answer to Global’s claims on the basis that (if there is a claim) the correct respondent is the landowner/vendor which was not joined to the proceedings by any of the parties.
On the basis of these pleadings, Sunbright (Tao Homes) and Queens Apartments (Sovereign Blackburn) were the proper respondents to the proceedings and cross claimants seeking the disgorgement of the funds paid by them on or on their behalf. This is a particularly important matter in the context of the decision that I am required to make here, given that the cross claim exists but only in the name of Urban as a cross claimant.
A party to a proceeding may not bring an action in the court against another party unless it has a justiciable claim against that party within the court’s jurisdiction. In the same fashion, a respondent may not bring a cross claim in respect of any right or obligation unless that cross claim is also based upon a justiciable claim between the parties to the proceedings and within the court’s jurisdiction. And so, a party to a proceeding may not cross claim in respect of a legal right belonging to a stranger to a proceedings. Public policy dictates that in any proceedings, all rights, interests, obligations and remedies should be dealt with in that one proceeding (and not in a multitude of proceedings) and so all interested parties needed to be joined to the proceedings. The Uniform Civil Rules 2020 recognise this requirement as a matter of ordinary jurisprudence.[4] And the rules of cause of action estoppel are well understood.[5]
[4] UCR 2020 Rule 15.1.
[5] Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
Broad as it is, this discussion is not a revelation. These were the principles that applied to the parties in this action at the time that the action was commenced and was heard. I am satisfied that by its defence in relation to the Tao Homes Development and Queens Apartments claims, Urban’s intention was to plead a number of complete answers to the claim of Global. The first was that no contract existed between Global and Urban. Second it contended that as Global acted as an agent but it was not registered or licensed, it breached the applicable statutory requirements and it was not able to make any claim for payment. Thus it contended on its cross claim that an order should be made for the disgorgement of any funds paid.
A number of things must follow. Urban contends that as the invoices of Global were directed to Sunbright and Queens Apartments, the liability for the payment of those invoices rested with those entities. On this version, the proper respondents were the vendors/principals and not Urban which, it must follow, was a stranger to those contracts. On this version, the legal position is that any amount received by Global paid out of any account of Urban was paid by it as the authorised agent on behalf of the vendor/principal. Therefore, it would be the obligation of the vendor to restore the funds of the agent under their relationship, having obtained any order against Global for it to disgorge any amount paid to it. Thus, the proper cross claimants in respect of those funds was the vendors, not Urban (and the applicants could have but did not apply for the vendors to be joined to the proceedings as cross claimants).
As I have earlier discussed, the same issues and legal principles arise in relation to the Sovereign Blackburn Development. The issues for determination were the same as for the Tao Homes Development. In its defence, Urban admits that the work done in the procuration of the purchasers of the units in the Sovereign Blackburn Development was done by Global, that the invoices delivered in connection with that work were those of Global but that those invoices were directed to the developer Queens Apartments. Those invoices (0109, 0119 and 0122) were all directed to the principal Queens Apartments. Thus, similarly, the primary response of Urban is that the invoices are directed to the entity primarily liable even though there is no pleading or evidence that Queens Apartments entered into any contract directly with Global. On the issue of privity, that is not a complete answer. Urban was the authorised agent of Queens Apartments as principal.
In my first judgment, I found that the applicants each satisfied the definition of a real estate agent by their actions which included some or all of the following: procuring the purchasers of units; procuring the form of contract of sale from the Australian solicitors for those units; procuring the execution of the contracts and the payment of the deposit by the purchasers; attending to the forwarding of the contract and the deposits to Australian solicitors or conveyancers; attending to the delivery of the forms 1 or their equivalents to the purchasers; the delivery of settlement statements preparatory to settlement; and then attending to any requests made in connection with such settlements. Despite this, however, they were not registered real estate agents in either South Australia or Victoria.
It is apparent that the enabling of all of these steps was connected with the benefit of the sale(s) received by the principals. The developments would not have proceeded absent the involvement of the applicants. All of this is not a revelation.
A plea by Urban that the invoices for payment delivered by Global were directed to the principal therefore is significant as a matter of fact and law: it is pleaded as a complete answer to the applicants claim in what is usually described as a form of ‘no contract’ pleading indicating that the principal, not Urban, is the entity liable for payment of any amount claimed (if liability is established). One consequence is that it would be necessary to join the principal as a respondent if any claim was to be perfected or finally resolved.
At paragraph 32.1 of its defence, Urban admits that it made a payment of $13,950 under a mistaken belief that Global was licenced. The only evidence led in support of Urban’s case (apart from Mr Small whose evidence was not relevant) was the witness, Mr George. In my first judgment, I rejected any factual basis upon which such a plea may rest.[6] I found that any assertion of such a mistaken belief was not true. The respondent has failed to prove this aspect of its defence. On the evidence before the court and upon the pleaded case of Urban, any payment made to, for example, Global, was made by or on behalf the principal vendor through Urban as the authorised agent of the vendor and in the knowledge of Urban that privity of contract existed between an applicant and the principal. Urban is now unable to recant from its pleaded case.
[6] At [105] – [106].
This leaves the position that, at least in respect of the payments the subject of the counterclaim, the respondent received no invoices from Global for payment for work done on the Sovereign Blackburn and the Tao Homes Development. The defence of Urban contends first a ‘no contract’ defence and then a ‘no liability’ defence based upon the applicable statute. That being so, and in the absence of any plea or any evidence led from Urban about the arrangements between Urban and its principals about payment, it is not open to Urban to bring a cross claim against either of the applicants asserting the right for the disgorgement of any sum so paid. In its final pleading and at trial, Urban adopted a de minimis approach which did not specifically address these essential features of its pleaded case which may have better illuminated and so resolved the potential inconsistencies between the ‘no contract’ plea and the ‘no liability’ pleas.

I think it is apparent that in formulating its approach to its defence to the applicants’ claims, Urban was aware of the operation, and hence, the application of the maxim ‘delegatus non potest delegare’ which means that a delegated power may not be delegated.[7] An agent is not able to delegate his or her own authority. Thus an agent cannot establish any form of legal relationship of principal and agent between the principal and some third person with whom the agent may have entered into a contractual relationship connected with the business of the principal.[8] A principal will not be bound by the act of a sub agent absent ratification by the principal of that act or the contract entered into by the sub agent. The question of an act of ratification is one of fact and may arise from the conduct of the principal. If there is to be a sub delegation, it must be with the express or implied permission of the principal but these must be subject to limits which are identified. Absent express or implied authority to delegate, an agent retained by a principal has no authority to delegate its responsibilities to an agent.
[7] See SA Joseph and Rickard Ltd v Lindley (1905) 3 CLR 280 at 290 per Griffith CJ.
[8] John McCann and Co (a firm) v Powell [1975] 1 All ER 129 at 131 per Lord Denning.
That said, it is not difficult to prove a form of delegation. In Powell v Thomas Evan Jones and Co at page 22, Mathew LJ said:-
‘It frequently happens in matters of business… that an agent who is employed to render services for a principal finds that he is not in a position to render those services himself, and with knowledge of his principal he applies to another person, who may have greater facilities for carrying the same transactions through. I think that the ordinary course of business in such a case as this.. is that the last mentioned person takes the position of agent to the principal … as a matter of sound business it would be generally necessary that such should be the relation.’
The decision of Mathew LJ in Powell reflects general commercial common sense and the inclination of courts to recognise the ordinary course of business in particular cases. In this case, the onus was upon Urban to satisfy the court that express or implied permission was obtained to appoint the sub agent. However, it is apparent, as the last sentence of the judgment of Mathew LJ makes clear, any such authorised sub agent becomes the agent of the principal, not the agent. That is the case in relation to the applicants and the principals in each case. Under a sub agency, the applicants became the authorised agent of the principal. All claims in connection with or of such a sub agency arise between the sub agent and the principal primarily.
In the course of preliminary argument, I required the respondent to notify each of the vendors about all of the issues now confronting the court and in which I considered they had a material interest. This included the authority of Urban. I intended to give them full notice of the issues and the opportunity to be heard and to take such applications as they saw fit. In due course, I was informed that on the best information available, each of the principals was now in liquidation or was otherwise uncontactable and most likely were insolvent and the company redundant.
The information about these entities now supplied to the Court is also not in any sense an epiphany. It is clear from the whole of the evidence before the court that in the end, these developments stretched all available resources to the limit. This Court is not naïve to the commercial realities of these types of developments. In the main, the developer very often takes the risk of undertaking the construction of large residential buildings using contributed capital and borrowed funds. Once the development is completed and the building is sold, developers take their profit and move onto the next project. They may or may not choose to use the same vehicle (company, trust or both) to do the next development. Depending on the circumstances developers which suffer a loss on any development will not maintain the same entity to do the next development. There is no commercial utility in suing such an entity. Any tax losses belong to the entity and in the main will not render a failed corporate to be an attractive proposition. In this case, each of the developers are in liquidation or no longer trade. They have not lent their names to this proceeding and more importantly for each litigant here, there can be no commercial benefit in them being joined to this proceeding. This, I think, explains the background to many (and perhaps most) of the decisions taken by the parties to this action.
By application dated 13 November 2024 (FDN 138) Urban seeks the following orders:-
1.   That the Respondent’s Cross Claim be re-opened for the limited purpose of tendering as an exhibit in evidence the Affidavit of Stephanie Hunter filed contemporaneously herewith together with the exhibits thereto.
2.   The costs of this application be in the cause.
3.   Any further order or orders as this Honourable Court sees fit.
The application is supported by an affidavit of one of its directors, Ms Stephanie Hunter, which falls into three parts. In the first part of the affidavit Ms Hunter purports to inform the Court of amounts paid by Urban to Global in connection with the Tao Homes development. The affidavit is deficient because it does not attempt to address the inconsistency between the pleaded case of Urban, the evidence of Mr George and most importantly the issue of the authority, if any, given by the principal Sunbright to make payments.
Similarly in its second part, the affidavit purports to explain the payment of $13,950 to Global under the Sovereign Blackburn project. It is quite deficient for the same reasons. Finally the affidavit addresses the payment of $31,243.25 to Austral under the Realm Projects. It is similarly deficient as it fails even to deal with the extant pleading of Urban that this amount was paid in connection with a settlement, the detail of which has never been exposed in evidence. It does not assist.
In my view, these significant deficiencies are sufficient of themselves to require the dismissal of this application. For the sake of completeness, I will consider the applicable authorities, none of which assist Urban, and all of which require the dismissal of the application.
In De L v Director-General, Department of Community Services (NSW),[9] at 215, the High Court held as follows:-
‘The power of this court to reopen its judgments or orders is not in doubt. The court may do so if it is convinced that, in its earlier consideration of the point, it has proceeded on a misapprehension as to the facts or the law where, there is some matter calling for review or where the interests of justice so require. It has been said repeatedly that a heavy burden is cast upon the applicant for reopening to show that such an exceptional course is required without fault on his part, ie: without the attribution of neglect or default to the parties seeking reopening. By such expressions of the power to reopen final orders, courts seek to recognise competing objectives of the law. On the one hand, there is the principle of finality of litigation which reinforces the respect that should be shown to orders, final on their face, addressed to the world at large and upon which conduct may be ordered relied upon their binding authority. On the other hand, courts recognise that accidents and oversights can sometimes occur, which, unrepaired will occasion an injustice. In the case of a final Court of Appeal, such as this court, that injustice may be irremediable, unless the court itself, acting promptly, is persuaded to reopen its orders so as to afford relief as to the exceptional circumstances of the case’. (citations omitted)
[9] (1997) 190 CLR 207.
In Inspector-General inBankruptcy v Bradshaw,[10] Kenny J held at [24] as follows:-
[24]The authorities indicate that, broadly speaking, there are four recognised classes of case in which a court may grant leave to re-open, although these classes overlap and are not exhaustive. These four classes are (1) fresh evidence (Hughes v Hill [1937] SASR 285 at 287; Smith v New South Wales Bar Association [No 2] (1992) 108 ALR 55 at 61-2); (2) inadvertent error (Brown v Petranker (1991) 22 NSWLR 717 at 728 (application to recall a witness); Murray v Figge (1974) 4 ALR 612 at 614 (application to tender answers to interrogatories); Henning v Lynch [1974] 2 NSWLR 254 at 259 (application to re-open); (3) mistaken apprehension of the facts (Urban Transport Authority of NSW v NWEISER (1992) 28 NSWLR 471 (UTA) at 478; and (4) mistaken apprehension of the law (UTA at 478). In every case the overriding principle to be applied is whether the interests of justice are better served by allowing or rejecting the application for leave to re-open: see UTA at 478; also The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust v Lenard’s Pty Ltd (No 2) [2004] FCA 1310 (Silver Fox) at [22] and [25].
[10] [2006] FCA 22.
In Matson v Attorney-General (Cth),[11] White J held at [178]-[181] as follows:-
[11] [2021] FCA 161.
The applicable principles
[178]The principles on which the Court acts when considering an application to reopen a matter before the delivery of judgment are settled. The overriding principle is the interests of the administration of justice having regard to the circumstances of the case: Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22 at [24], [26]; Brown v Petranker (1991) 22 NSWLR 717 at 729; Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478; Harrington Smith (on behalf of the Wongatha People) v Western Australia (No 8) [2004] FCA 338, (2004) 207 ALR 483 [121]; and Walsh v Greater Metropolitan Cemeteries Trust (No 2) [2014] FCA 456, (2014) 243 IR 468 at [48].
[179]In Bradshaw, Kenny J identified at [24] four overlapping classes of cases in which a court may grant leave to reopen: fresh evidence; inadvertent error; mistaken apprehension of the facts; and mistaken apprehension of the law. The applicant’s present application seems to be in the first and fourth of these categories.
[180] The matters bearing on the interest of justice are various. They include:
•      the public interest (and the interests of the particular parties) in litigation being conducted efficiently and expeditiously;
•      the public interest in the finality of litigation, with the consequent expectation that litigants will present all their evidence and submissions at the one hearing;
•      the significance of the proposed new evidence and submissions in the context of the hearing
•      the explanation for the evidence not having been led at the trial;
•      the likely prejudice to the opposing party if the application is allowed;
•      the potential detriment to the applying party if the application is refused; and
•      any delay by an applicant in seeking leave to reopen.
[181]Regard should also be had generally to the overarching purpose of the Court’s civil practice and procedure provisions stated in ss 37M and 37N of the FCA Act.
S 37M of the Federal Court Act prescribes the overarching purpose of that court’s civil practice and procedure provisions which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Under s 37N of the same act, parties are required to act consistently with that overarching purpose. The court is empowered to make punitive costs orders in the event of a party (or its solicitors) failing to act consistently with the overarching purpose.
UCR 1.5 of the Uniform Civil Rules 2020 provide:-
1.5—Object
The object of these Rules is to facilitate the just, efficient, timely, cost effective and proportionate resolution or determination of the issues in proceedings governed by these Rules.
Notes—
Section 3 of the Legislation Interpretation Act 2021 generally applies the provisions of the Act to “legislative instruments”.
These Rules are a “legislative instrument” within the meaning of the Legislation Interpretation Act 2021.
Section 14 of the Legislation Interpretation Act 2021 provides that, in interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation.
The interests of the public, including the interests of all of the parties to this proceeding are not served by the reopening of the case of Urban. Permission of the court to take such a step would be inconsistent with the efficient and expeditious disposition of this claim and with the public interest in the finality of litigation. The expectation of every court is that in the context of their pleaded cases, litigants would present all of their evidence and their submissions at the one hearing. No explanation has been given about why the information now sought to be adduced in the reopening of the case could not have been presented to the court earlier.
It is also difficult, if not impossible, to assess the significance of the proposed new evidence and submissions that may accompany it in the context of the hearing. That is because the evidence itself does not address a number of substantive issues required to be addressed by Urban. The issues for consideration set out above again appear to have been overlooked by Urban or simply ignored. In my opinion, at best, the significance of the proposed new evidence is minor for that reason alone. It would also be necessary for Urban to amend its pleadings. That will lead to further unacceptable delays and costs.
There has been no explanation about why the evidence was not led at trial. This is another fundamental failing of the application now made by Urban. It is difficult to assess the extent of the prejudice to the applicants if the application is allowed. The application itself is deficient and would most likely take the proceeding no further. Thus, there would always be some prejudice to the applicants because of the likely waste of costs.
As a result of the failure of Urban to properly address its own case at trial, it is not possible to determine the potential detriment to Urban if the application is refused. That is because in large part, Urban has failed at trial to properly address its own contractual position and the consequential legal position of the other parties based upon its own pleading.
I am satisfied that the delay by Urban to apply for leave to reopen the case has been significant. Judgment has been delivered. There is no contention made by Urban that there has been any inadvertent error, or any mistaken apprehension of the facts or of the law. It appears that Urban overlooked the issues of proof of its own defence and cross claim which is fatal to its prospects on this application. Urban applies to lead further evidence but in a vacuum of the consideration of each of the other steps necessary to enable the court to resolve outstanding legal and factual issues which have not been addressed. For these reasons, I refuse the application of Urban to reopen its case.
In the background of that discussion, the cross claim of Urban against Global in connection with each of the developments is allowed in the manner in which I have set out above. The balance of the cross claim fails.
The orders on the cross claim are:-
1.   Judgment for the cross-claimant Urban in the sum of $74,900 against the cross respondent Austral.
2.   Judgment for the cross claimant Urban the sum of $100,000 against the cross respondent Global.
3.   The balance of the cross claim is dismissed.
4.   I will hear the parties further in relation to interests and costs.
The parties are to file minutes of order to reflect this decision, and my first decision and any submissions on interest and costs by 4 pm on 14 February 2025.