Combined Property Consultants Pty Ltd v Mitchell

[2019] NSWSC 652

Supreme Court

New South Wales

Medium Neutral Citation:

Combined Property Consultants Pty Ltd v Mitchell [2019] NSWSC 652

Hearing dates:

8, 9 August 2018

Date of orders:

06 June 2019

Decision date:

06 June 2019

Jurisdiction:

Equity

Before:

Parker J

Decision:

The plaintiff’s claim be dismissed.
The cross-claim be dismissed.
The plaintiff to pay the defendant’s costs of the proceedings.

Catchwords:

CONTRACTS — Identification of terms – whether terms and conditions of written agreement form part of contract in fact reached – where clear agreement between the parties that agency agreement be “sole” rather than “exclusive” - where “exclusive” struck out and “sole” written and changes initialled – where parties did not turn their minds to further terms and conditions of written agreement which became inapposite to the “exclusive” agency agreement reached – relevance of parol evidence rule - party may prove there was in fact no agreement on particular term within an apparently complete written agreement.

 

CONTRACTS — Rectification — Intention — Common intention – rectification appropriate where clear mistake - parties did not avert to inclusion of term which was inapposite to their agreement – rectification appropriate to delete “exclusive” or read “exclusive” as “sole”.

 

CONTRACTS — Construction — Interpretation - where option agreement provided for exercise of option by party or its nominee – whether purchase by exercise of option a “purchase” within meaning of agency contract so as to make the commission payable – where clause equating exercise of option with purchase appropriately excluded by construction or rectification – proper juridical analysis of an option – whether service of notice per contractual procedure brought about “purchase” within meaning of contract to make commission payable – where agency contract must be interpreted in a commercially sensible way – party exercising option cannot be seen as a “purchaser” as agency contract premised on voluntary transaction – commission not payable.

 

CONTRACTS — Construction — Interpretation - Natural and ordinary meaning - where contract specifically required agent to introduce purchaser to vendor during agency period – whether “introduced” extends to bringing purchaser “into contact” with vendor during period of agreement notwithstanding that initial contact occurred prior to agency period – purchaser not “introduced” to vendor during agency period as natural implication of “introduced” is that an introduction can only happen once and alternate construction would render term meaningless.

  CONTRACTS —Termination — Frustration - whether agency contract frustrated where sale did not take place by way of fresh contract following release of option – where common assumption not expressed in terms of agency agreement but discerned from relevant surrounding circumstances subject matter of contract may be expressed as sale of property free from option - where agent aware of purchaser’s sole interest to proceed by way of fresh contract for sale excluding option - where terms of agency agreement reflected common assumption – where agent would have no authority to sell property absent release of the option - agency contract deprived of continuing legal effect when option not released.

Legislation Cited:

Competition and Consumer Act 2010 (Cth), Sch 2 –Australian Consumer Law, ss 21, 237(1) and 243.
Property Stock and Business Agents Act 2002 (NSW), s 55.

Cases Cited:

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24
County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193
Davis Contractors Limited v Fareham Urban District Council [1956] AC 696; [1956] 2 All ER 145
Fitzgerald v Masters (1956) 95 CLR 420; (1956) 30 ALJR 412
Krell v Henry [1903] 2 KB 740
Leafs Gully Farm Pty Ltd v Mitchell (2015) 18 BPR 35,607; [2015] NSWSC 1460
Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92
Nickoll & Knight v Ashton, Edridge & Co [1901] 2 KB 126
Parker v South Eastern Railway Company (1877) 2 CPD 416
Scanlan’s New Neon Limited v Tooheys Limited (1943) 66 CLR 169; [1943] HCA 43
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 133 ACSR 139; [2019] NSWCA 11
Taylor v Caldwell (1863) 3 BNS 826; [1863] 122 ER 309
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.

Texts Cited:

None.

Category:

Principal judgment

Parties:

Combined Property Consultants Pty Ltd t/as Combined Real Estate Campbelltown (Plaintiff)
Richard Gordon Mitchell (Defendant)

Representation:

Counsel:
A Power (Plaintiff)
PT Russell (Defendant)

  Solicitors:
Leverage Solicitors (Plaintiff)
Badarne Lawyers (Defendant)

File Number(s):

2016/383217

Publication restriction:

Nil

Judgment

1. This judgment concerns a claim for commission under a real estate agency contract. Under the contract, Richard Gordon Mitchell, the defendant, appointed Combined Property Consultants Pty Ltd (“CPC”), the plaintiff, as agent to sell a property owned by him at Gilead, near Campbelltown on the south-western outskirts of Sydney.

2. The property was purchased by Leafs Gully Farms Pty Ltd (“LGF”) as nominee under an option previously granted by Mr Mitchell to a company in the Australian Gas Light group of companies (“AGL”). LGF is a member of a property development group of companies controlled by members of the Mir family (“the Mir Group”). CPC’s case is that it introduced the Mir Group to the property and it is entitled to the $200,000 commission for which the contract provided.

Issues for determination

3. CPC’s claim is a contractual one. There was a written agreement as is required by the Property Stock & Business Agents Act 2002 (NSW), s 55. But there is a dispute between the parties about whether all of the terms of that agreement formed part of the parties’ contract. I will use the term “Agency Contract”    to refer to the legally effective part of the written agency agreement, as ultimately determined by the Court.

4. The proceedings were initially commenced by CPC in the District Court by way of Statement of Claim. A defence and cross-claim was filed on behalf of Mr Mitchell. The cross-claim sought an order under the general equitable jurisdiction rectifying the Agency Contract. Orders were also sought in the alternative under the Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, ss 237(1) and 243, varying the Agency Contract or refusing to enforce the provisions of the Contract on which CPC relied for its claim. In September 2017, the proceedings were transferred to this Court on the basis that the District Court lacked jurisdiction to grant the relief sought in Mr Mitchell’s cross-claim.

5. Mr Mitchell’s primary contention is that, on the true construction of the Agency Contract, CPC has no right to commission on the enforced sale of the property to LGF. In the alternative, Mr Mitchell seeks rectification of the Agency Contract so as to exclude a right to commission on such a purchase. Finally, if CPC is entitled contractually to the commission as a result of the purchase, Mr Mitchell contends that the enforcement of its rights would amount to unconscionable conduct under the Australian Consumer Law, s 21.

Summary and analysis of evidence

6. Evidence was given on CPC’s behalf by Benham Edward Dodd. Mr Dodd was the person at CPC who dealt with Mr Mitchell. Mr Mitchell gave evidence in the defence case. Both Mr Dodd and Mr Mitchell were cross-examined but there were large swathes of their evidence which was uncontested. I will resolve any conflicts of evidence, to the extent necessary, in due course.

7. Mr Dodd and Mr Mitchell both swore affidavits for the earlier proceedings in this Division to which I refer below. Mr Dodd’s first affidavit was sworn in May 2014. The affidavit was prepared by the solicitors for Mr Mitchell, who was the first defendant in the proceedings. An affidavit was prepared by Mr Mitchell’s solicitors and sworn by Mr Mitchell himself in April. Mr Dodd then changed camps. In August 2014 he swore an affidavit prepared by the solicitors for LGF, the plaintiff in the earlier proceedings. A further version of that affidavit containing some additional material was sworn in September. In these affidavits, Mr Dodd made a number of what he described as corrections and supplementations to the affidavit which had been prepared by Mr Mitchell’s solicitors. Mr Mitchell swore a further affidavit in January 2015 which among other things responded to Mr Dodd’s September 2014 affidavit. Mr Dodd swore an affidavit in reply for LGF in February 2015.

8. Further affidavits were prepared and sworn for the purpose of these proceedings. Mr Dodd’s affidavit in chief was sworn in May 2017. Mr Mitchell swore an affidavit in response in November. Mr Dodd swore an affidavit in reply in February 2018.

Chronology of key events

9. Mr Mitchell purchased the property in about 1980. At that stage it consisted of five lots (Lots 101 to 105) in a deposited plan of subdivision. Mr Mitchell has two daughters. He later transferred Lots 104 and 105 to his daughters and their husbands. He retained Lots 101, 102 and 103 in his ownership.

10. Mr Dodd and Mr Mitchell first met in 2002 when Mr Dodd (then working for another real estate agency firm) acted as agent for the sale of an adjoining piece of rural land which was co-owned by Mr Mitchell and another person. According to Mr Dodd, Mr Mitchell placed the property itself on the market, with him as the agent, in 2002. Mr Mitchell denied this in his affidavit but records from the agency business produced at the trial show that the property was indeed listed by Mr Mitchell with Mr Dodd in October 2002. The property did not sell and Mr Mitchell took it off the market in 2003.

11. The AGL option arrangements date back to 2005. There were a number of subsequent deeds of novation and variation which resulted in the benefit of the option being transferred between various AGL companies, and also provided for the option period to be extended. The detail of these extensions and variations do not matter for the purpose of these proceedings. Nor is it necessary to distinguish between the various AGL companies involved. I will refer to those companies collectively as “AGL”.

12. The 2005 option arrangements gave AGL an option not only over Lots 101, 102 and 103, which had been retained by Mr Mitchell, but also over Lots 104 and 105. Subsequently AGL exercised the options over those Lots, leaving Lots 101, 102 and 103 still subject to the option. In consideration of the grant, and then the extension and variation of the options, AGL paid a total of $3.15 million to Mr Mitchell. The option arrangements provided that for a purchase price for Lots 101, 102 and 103 of $15 million, but the option fees paid by AGL were to be credited in the event that AGL exercised the option.

13. According to Mr Dodd, he saw Mr Mitchell from time to time and enquired after the property, making it clear that if it were to come back onto the market he might be able to assist with finding a buyer. Mr Dodd gave evidence that he had shown Lot 4 to Mr Mir during the 2002 sales campaign, and that he had had dealings with Mr Mir prior to 2002 in connection with the sale of a further property.

14. AGL had originally acquired the option over Lots 101 to 105 because it planned to build a gas fired power station on the property. By May 2013, AGL’s plans had changed and it no longer wished to proceed with the power station project. Discussions took place between Mr Mitchell and the AGL executive responsible for the project in which Mr Mitchell canvassed AGL surrendering its option over Lots 101, 102 and 103 and transferring Lots 104 and 105 back. This would have enabled Mr Mitchell to sell the whole property for redevelopment.

15. Mr Mitchell told Mr Dodd about this possibility on about 11 May and asked whether the Mir Group might buy the property. Mr Dodd’s contact at the Mir Group was Samuel Mir who was apparently a director. Mr Dodd contacted Mr Mir and ascertained that the Mir Group was still interested. A meeting, arranged by Mr Dodd, then took place between Mr Mitchell, Mr Mir and Mr Dodd on about 23 May.

16. Mr Dodd was not the only person through whom Mr Mitchell was looking for buyers for the property. He was also dealing with David Sweeney. It is not clear from the evidence whether Mr Sweeney was also a licensed real estate agent, but whether he was or not he apparently had contacts with prospective purchasers. In mid-May Mr Sweeney introduced Mr Mitchell to John Hanna, who was interested in buying the land.

17. On 30 May Mr Mitchell advised Mr Dodd that Mr Sweeney had brought Mr Hanna to the property on a few occasions and that Mr Hanna was offering more money. Mr Dodd responded that he would inform Mr Mir and arrange a meeting between Mr Mitchell and Mr Mir. The meeting was later arranged for the afternoon of 6 June.

18. Mr Dodd then took steps to have Mr Mitchell sign an agency agreement. As already noted, there is a disagreement between the parties about which documents were included in the Agency Contract as ultimately signed. There is also a dispute about when the Contract was signed. According to Mr Dodd, it was signed on 1 June. Mr Mitchell said he signed it on 6 June, shortly before the meeting with Mr Mir.

19. At around the same time, Mr Jones was also asked to prepare the contract for the sale. Mr Jones provided a draft contract to Mr Dodd shortly before 1.00 pm on 6 June. The draft contract contained a special condition which made the contract subject to, and dependent upon, two other transactions. The first was the purchaser simultaneously purchasing Lots 104 and 105 from AGL. The second was the release by AGL “or the relevant party which holds a current option from the vendor” of the option over Lots 101, 102 and 103.

20. Mr Mitchell’s evidence was that in the days leading up to the meeting on 6 June, he began to be concerned about the tax consequences of the proposed sale. He had not paid tax on the option fees paid by AGL and was worried that if the option was cancelled, the option fees might be taxable.

21. The meeting took place on the evening of 6 June. At that meeting, Mr Mir and Mr Mitchell agreed on a sale of the property for $15 million with a ten per cent deposit, with Mir Group to purchase lots 104 and 105 from AGL for $1.8 million. Mr Mir said that this was subject to approval at a board meeting to be held on the next day but that this was unlikely to be an issue. Mr Mitchell raised the question of the tax treatment of option fees which he had received from AGL. Mr Mir said that the Mir Group would be prepared to assist (presumably by way of structuring the agreement) in any way which was lawful and that this should be negotiated between the solicitors for the parties.

22. On the following day, Mr Dodd issued a sales advice notice. It identified the purchaser as “Mir Group of companies or nominee”. The property was identified by its street address.

23. The contract price was identified as $15 million; the deposit payable on exchange was left blank. Under special conditions the following appeared:

As per contract/Dick Mitchell to stay/lease property for Peppercorn rent/10% deposit released on exchange

24. No contract date or cooling off period was specified. CPC’s commission was stated as $200,000.

25. Following the issue of the sales advice notice, discussions took place between Mr Mitchell and Mr Mir, and between their solicitors. In the course of those discussions Mr Mitchell provided a copy of the option deed to Mr Mir. Negotiations then took place directly between the Mir Group and AGL.

26. The negotiations between the parties proved to be more protracted than expected. Mr Mitchell acknowledged there was some delay (which he blamed on his solicitor and accountant) in obtaining advice on the tax question. He said that eventually he satisfied himself that the option fees would not be taxable and instructed Mr Jones to proceed on this basis. He acknowledged that he received some further approaches (both directly and through Mr Sweeney) from Mr Hanna, who was prepared to increase his price. Mr Mitchell said that he told Mr Hanna he was committed to the Mir Group. For his part, Mr Dodd said that he was being continually pressed by Mr Mir and tried to contact Mr Mitchell but Mr Mitchell seemed to be avoiding him.

27. Eventually, on 28 June, Mr Mitchell spoke to Mr Mir. He was told that the Mir Group had exchanged contracts with AGL and that Mr Mitchell would not be getting $15 million for his property. Mr Mitchell asked why not and Mr Mir told him to speak to the Mir Group’s lawyers.

28. It is now apparent that the Mir Group had decided that, rather than purchase from Mr Mitchell in accordance with the draft contract, the Mir Group would arrange with AGL to take over the option. No doubt the idea was to get the benefit of the option fees paid by AGL, and thus be able to buy at a lower price.

29. Meanwhile, LGF had been incorporated on 21 June. The company search shows that its shareholders were individual members of the Mir family, but for the purposes of the proceedings it was treated as a member of the Mir Group.

30. On 2 July, AGL’s solicitors wrote to Mr Jones advising that AGL had exchanged contracts for the sale of Lots 104 and 105 to LGF and notifying its intention to make LGF AGL’s nominee as purchaser of Lots 101, 102 and 103 under the option deed. The letter identified two other alternatives which were apparently open. These were for AGL to novate the option deed to LGF, or for AGL to release its rights under the option deed to allow LGF and Mr Mitchell to come to a separate agreement in relation to Lots 101, 102 and 103. But it is clear that AGL had made a commitment to the Mir Group to make LGF AGL’s nominee under the option deed. The other alternatives were never pursued.

31. LGF lodged a caveat on Lots 101, 102 and 103. In mid-October, LGF served on Mr Mitchell formal notice of exercise of the option as AGL’s nominee.

32. Mr Mitchell refused to accept that he had been outmanoeuvred. He raised various grounds of objection to the exercise of the option by LGF. In 2014, LGF brought proceedings against Mr Mitchell in this Division. Mr Mitchell’s defences failed, and the Court declared that LGF was entitled to complete the purchase of the land as AGL’s nominee at a price which gave credit for the option fees paid by AGL: Leafs Gully Farm Pty Ltd v Mitchell [2015] NSWSC 1460. Mr Mitchell appealed to the Court of Appeal. The appeal was dismissed: Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92. Following the dismissal of the appeal, in October 2016 LGF completed the purchase of Lots 101, 102 and 103 from Mr Mitchell at a price of $11.85 million.

33. Meanwhile, in May 2016, Mr Dodd had learned of the dismissal of Mr Mitchell’s appeal. He wrote on CRS letterhead purporting to confirm the sale “as per our Agency Agreement dated on 23.05.2013”. Enclosed was a tax invoice for $200,000. Mr Mitchell denied liability. The present proceedings were commenced by CPC in December 2016.

The agency agreement

34. The written agency agreement was prepared using a four page standard form contract of CPC’s. Apart from Mr Mitchell’s signature and initials, all the handwriting on it was Mr Dodd’s.

35. The form was headed “Sales Inspection Report and Exclusive Selling Agency Agreement”. The word “exclusive” was struck out and the word “sole” written in its place and initialled by Mr Dodd and Mr Mitchell.

36. The printed form was in three parts. Part 1 was the sales inspection report. It contained the particulars of sale. They were completed by Mr Dodd, who inserted the details for Mr Mitchell as purchaser, for himself as sales person (CPC’s details were already printed on the document as agent) and Mr Jones’ details as solicitor. The property was described by reference to its street address in Gilead and did not identify the particular lot numbers. The particulars also included the licensee’s estimate of the selling price, given as $15 million, and the date of preparation of the licensee’s report, which was given as 23 May 2013. It was signed at the foot of the page by Mr Dodd.

34. Part 2 (although not identified as such on the form) contained, in boxes, critical provisions and main variables. These were cross-referenced to a set of standard terms and conditions set out in Part 3.

35. Section A in Part 2 dealt with the agency appointment. It provided:

In consideration of the Licensee agreeing to use the Licensee’s best endeavouring to sell the property the Licensee is appointed and authorized to sell the Property on behalf of the Principal, as exclusive selling agent for the sale of the Property, for the period (“as Exclusive Agency Period”) commencing on …….. and end at midnight on ……. AND an non-exclusive agent for the sale of the Property for the period (“the Non-exclusive Agency Period”) commencing at the expiration of the Exclusive Agency Period and terminating upon the sale of the Property or upon termination by seven days prior written notice given by the Principal or the Licensee to the other.

Where the Exclusive agency Period exceeds 90 days, the Principal may terminate the Agreement (without penalty) by giving 30 days notice in writing to the Licensee at any time after the end of the first 90 days of the terms except where the agency agreement is in respect of the sale of residential property where the contract for sale provides for the construction by the Principal of a dwelling on the land.

39. The “Exclusive Agency Period” were completed in handwriting. The commencement date was 1 June. The end date was 1 September.

40. Section B in Part 2 specified the price “at which the property is to be offered for sale”. It contained a cross-reference to clause 2.1 of the standard terms and conditions (see below). The price was completed in handwriting as $15 million.

41. Section C provided in its printed form:

C. REMUNERATION

The Licensee’s GST inclusive remuneration shall be calculated on the GST exclusive amounts in the following way:

3.3% of final sale price

[e.g in relation to the Licensee’s ESTIMATE of the GST exclusive sale price of $............... the GST inclusive remuneration would be $.................. if the property sold at that price.]

42. In handwriting, the numbers 3.3% were struck out and the words “$200,000 inc GST Flat Fee” written in. In the example, “15,000,000” was inserted by hand as the sale price and “200,000” inserted by hand as the commission.

43. At the foot of Part 2 on page 3 was a box containing space for signature. It bears the signature of Mr Mitchell and Mr Dodd and was dated 1 June. The box also contained a date on which the approved agency agreement guide (see the reference to cl 6.5 below) was provided to Mr Mitchell. That date was also given as 1 June.

44. Part 3 was headed “Terms and Conditions of the Exclusive Selling Agency Agreement”. It consisted of one page of printed clauses in small type.

45. Clause 1 of the Terms and Conditions contained definitions. Clause 1.2 provided:

“Introduced” - A person shall be deemed to have been "introduced" to the Principal or the Property by the Licensee if the fact that the Property is available for sale is made known to that person by or through the Licensee and, without limiting the generality of this paragraph, a person shall be deemed to have been introduced to the Property by the Licensee if that person becomes aware that the Property is available for sale as a result of reading any advertisement, notice or placard referring to the availability of the Property for sale, published or erected by or in the name of the Licensee.

46. Clause 2 dealt with the price. Clause 2.1 provided:

The Principal authorises the Licensee to sell the Property at the price set out in Item B of the Particulars or such other price the Principal approves.

47. Clause 3 dealt with remuneration, expenses and charges. Clauses 3.1 relevantly provided:

Remuneration - The Licensee shall be entitled to the remuneration set out in Item C of the Particulars (“the Remuneration”) in the following circumstances (whether or not the Licensee is the effective cause of sale):

(a)   If during the Exclusive Agency Period the Principal enters into a contract (which includes by way of an option being exercised) for the sale of the property, or of an interest in the Property, to any person, (including a co-owner), whether or not that person was introduced to the Principal or to the Property by the Licensee.

…

(c)   If at any time during the Non-exclusive Agency Period or within 120 days of termination of that period a person who has been introduced to the Principal or to the Property by the Licensee during either the Exclusive Agency Period or the Non-exclusive Agency Period, or another person introduced to the Principal or to the Property by such a person, enters into a contract (which includes by way of exercise of an option) to purchase (either alone or jointly with another or others) the Property or an interest in the Property, or

…

48. Clause 5 contained the principal’s warranty, authorities and obligations. Clauses 5.1 and 5.2 provided:

Warranty - The Principal warrants to the Licensee that the Principal has authority to enter into this Agreement with the Licensee.

Licensee not to Sign Contract - The Licensee is not authorised to sign a Contract for Sale on behalf of the Principal.

49. Clause 6 was headed General, Disclosure, Acknowledgements and Warnings. Clause 6.5 provided:

Approved Guide - The Principal confirms that the Licensee has provided the Principal with a copy of the approved guide entitled “Agency Agreements for the Sale of Residential Property” on the date stated above the signature of the Principal.

50. A fact sheet issued by the NSW Department of Fair Trading and dated February 2010 is in evidence. It is headed “Agency agreements for the sale of residential property”. Although described as a “fact sheet” this presumably was the “approved guide” referred to in cl 6.5. CPC’s case was that this document was shown to Mr Mitchell at the time and formed part of the contract. Under the heading “types of agency agreements”, the fact sheet stated:

There are several different kinds of agency agreements for the sale of residential property. It is important to be aware of the kind of agreement you sign, because it affects your rights and the amount of commission you may have to pay. You should discuss the agreement with a legal adviser if you are not sure about your rights. The following is an overview of the different types of agreements.

Exclusive agency agreements

Exclusive agency agreements are commonly used for the sale of residential property. In this kind of agreement, you give exclusive rights to one agent to sell your property. This may entitle the agent to be paid commission if the property is sold during the fixed term of the agreement, even if the property is sold by you or by another agent. The agent may also be entitled to commission if the property later sells to a person who started negotiating for the property with the original agent.

Sole agency agreements

This is similar to an exclusive agency agreement. You give rights to one agent to sell the properly but you may find a buyer yourself. If you find a buyer who has not been introduced by the agent, then no commission is payable to the agent.

General listing / Open agency agreement

This lets you list your property with a number of agents. You pay a commission to the agent who finds the buyer.

Events surrounding Agency Contract

51. Mr Dodd’s evidence, in his affidavit sworn for the purposes of these proceedings in May 2017, was that he and Mr Mitchell met briefly at CPC’s Campbelltown office before the meeting with Mr Mir which took place on 23 May. Mr Dodd said that he prepared the agency agreement before his meeting with Mr Mitchell at CPC’s office, and told Mr Mitchell that he had done so but then suggested that it be sorted out after the meeting with Mr Mir. Mr Dodd said that Mr Mitchell agreed, proposing that they see what happened with Mr Mir first. In his oral evidence, Mr Dodd said he showed the document to Mr Mitchell in the car on the way to see Mr Mir. Mr Mitchell accepted that at some point Mr Dodd raised the question of agency, and Mr Mitchell put him off.

52. Based on this evidence I think I can accept that Mr Dodd prepared the sales and inspection report on 23 May. I also accept that Mr Dodd raised the question of an agency contract with Mr Mitchell but that they both agreed to put it off. I think it is unlikely that Mr Dodd would have entered the dates in Part 2 of the agency agreement at this point. It would not have made sense to enter a future date (1 June) if he had. In any event, both parties were clearly proceeding on the basis that there was no agreement on the terms of the agency at that stage.

53. Mr Dodd said that at the meeting with Mr Mir on 23 May, Mr Mir asked Mr Mitchell how much he wanted for the property. Mr Mitchell replied that he wanted $17 to $18 million which was to include $15 to $16 million for Lots 101, 102 and 103 and $1.8 million for Lots 104 and 105 which were owned by AGL. Before the meeting Mr Dodd had informed Mr Mir of the option and AGL’s intention not to proceed with the power station. Mr Mir asked Mr Mitchell to obtain a copy of that letter.

54. According to Mr Dodd, Mr Mir responded by proposing that Mir Group take over the option and pay out what was due by AGL and that Mr Mitchell said he was not interested in that. Mr Mir then said that the farm was not worth what Mr Mitchell was asking for it and that the whole of it, including the AGL’s lots was worth only about $11.6 million. Mr Mir said he could probably get his board to go up $1 or $2 million but the $13.6 million would be the absolute limit. Mr Mitchell responded that this was not good enough and that AGL had been prepared to pay $15 million “plus option fees”. According to Mr Dodd, Mr Mitchell produced part of a letter from Mr Jones and showed it to Mr Mir. Mr Mir said the letter was incomplete and contained no reference to AGL paying $15 million for the farm. Mr Mir asked about the option fees. Mr Mitchell said that as far as he knew all option fees was on top of the $15 million apart from one payment of $185,000.

55. There was some discussion of the terms of the option agreement with AGL. Mr Mir said that if Mr Mitchell had proof that AGL had been willing to pay him $15 million, he could send it through. Otherwise the offer was $12 million. Mr Mitchell said that this was not enough and the meeting came to an end.

56. Mr Mitchell’s account of the meeting on 23 May was similar to Mr Dodd’s. The only difference was that Mr Mitchell said he volunteered the fact that a letter was coming from AGL.

57. On 27 May 2013, AGL wrote to Mr Mitchell’s solicitor, Stephen Jones, a letter which stated:

As advised to Mr Mitchell, AGL is interested in receiving a formal offer from Mr Mitchell (or the potential buyer of Lots 101 to 105).

If this offer is at the level indicated by Mr Mitchell for lots 104 and 105 (ie $1.8m) and has no unusual contract conditions, AGL will initiate our formal approval processes for entering a contract to sell these lots, and also to release the current option over the other lots.

This AGL response is on the understanding that the formal offer is received in a fortnight from the date of this letter.

58. Mr Mitchell arranged for Mr Dodd to be provided with a copy of the AGL letter, and for Mr Dodd to send it on to Mr Mir. This happened on 28 May.

59. Mr Dodd said that on 30 May Mr Mitchell told him that Mr Hanna was preparing to make an offer. Mr Dodd relayed this to Mr Mir who indicated he would seek instructions from others at Mir Group about increasing the offer. Mr Dodd then told Mr Mitchell who replied that Mr Hanna was willing to offer more money but was insisting on a due diligence period. Mr Mitchell instructed Mr Dodd that he might be prepared to accept an offer of $15 million for the property plus $1.8 million for Lots 104 and 105.

60. Mr Dodd’s evidence was that he and Mr Mitchell met at CPC’s offices on 1 June to sign the agency contract. Mr Dodd said that he told Mr Mitchell there were different ways in which the agency could work. It could be exclusive, open or sole. Mr Dodd said he read from the Department of Fair Trading fact sheet the passage concerning the different types and that they then had a conversation to the following effect:

Me:   For you, you will probably want to go sole, as this still allows you to sell it by yourself and I only get paid if my buyer buys it.

Dick:   That sounds fair, I’m happy with that.

61. According to Mr Dodd, he struck out the word “exclusive” and wrote in the word “sole”, he then inserted the date and he and Mr Mitchell initialled and signed the agreement.

62. Mr Dodd said that he had previously discussed remuneration with Mr Mitchell, at the time of the 23 May meeting with Mr Mir. According to Mr Dodd, he had been proposing a percentage of the sale price. Mr Dodd said that the $200,000 flat fee was first discussed on 1 June. He did not give any evidence of the terms of the discussion.

63. In his oral evidence, Mr Dodd also referred to the Terms and Conditions in Part 3 of the printed agreement. He said that his usual practice was to put the document in front of the customer and draw attention to each of the clause headings, inviting the customer to read the printed clause under the heading if the customer wished. He said that he would have followed this practice with Mr Mitchell, but understandably had no actual recollection of having done so.

64. Mr Mitchell did not expressly refer to being told about the agency agreement before the meeting on 23 May. He denied that the agreement was signed on 1 June. He said he first saw the agreement on 6 June at a meeting with Mr Dodd prior to the meeting with Mr Mir. He said that he would not have signed the agreement until he knew there was a concrete proposal from Mr Mir and a meeting had been arranged.

65. Mr Mitchell said in his affidavit, that he quickly read the first page of the document. He said that he did not read the rest. He said that the terms and conditions on page 4 were too small for his eyesight. He said he did not and could not have read that page. He did not say that he told Mr Dodd this.

66. Mr Mitchell agreed that there had been a discussion which resulted in the word “exclusive” being struck out and the word “sole” being written in its place. According to Mr Mitchell it was he who raised the difficulty with an exclusive agency, as he was also negotiating with Mr Hanna. Mr Dodd then told him that they could use sole agency instead and when he asked what a sole agency was Mr Dodd handed him a document to explain the difference. Mr Mitchell said that he could not identify the fact sheet as the document but it was similar. He said that all he looked at were the parts of the document relating to the different types of agency agreement and that he did not read the rest of the document.

67. Mr Mitchell was not asked in his oral evidence about the discussion which led to the $200,000 flat fee being included in the agreement. Nor was he asked about whether Mr Dodd had taken him to the headings on the terms and conditions. His affidavit evidence about being unable to read the terms and conditions was not challenged in cross-examination.

68. On balance, I think it is more likely that the agreement was signed on 1 June as Mr Dodd claimed. That date was written three times on the agreement. There is nothing in the agreement to support Mr Mitchell’s claim that it was signed on 6 June. If it had been, there would have been no reason to backdate it to 1 June. I think that Mr Mitchell was mistaken on this.

69. I think it is clear that the parties must have had a discussion about the nature of the agency and the amount of the commission before the handwritten insertions and amendments were made on the document and they signed it. It is not possible to be precise about the particular words the parties used. But it is clear that they agreed on a sole, rather than exclusive, agency, on the basis that Mr Dodd would only be entitled to commission if Mr Mir (or some other purchaser introduced by Mr Dodd) bought the property. They must also have agreed on a flat commission of $200,000 rather than commission on a percentage of sale price basis as set out in the printed agreement and as has previously been raised by Mr Dodd.

Terms of Agency Contract

70. CPC’s claim for commission was based (at least primarily) on cl 3.1 in the Terms and Conditions. The claim gave rise to various areas of debate concerning the construction and application of that clause in the circumstances of this case.

71. Counsel for Mr Mitchell contended that, having regard to the circumstances in which the agency agreement was signed, cl 3.1 of the Terms and Conditions did not form part of the contract between the parties. If this is correct, the construction and application issues have to be determined in a quite different context. It is convenient to deal with this issue at the outset.

72. Three things are clear on the evidence. The first is that the parties agreed, orally, that CPC would act as Mr Mitchell’s sole, rather than exclusive, agent. In making this agreement, the parties were applying the distinction drawn in the fact sheet, which can thus be referred to as part of the matrix of fact, or perhaps that as incorporated in the contract itself.

73. The second matter is that the parties nevertheless completed and signed the agreement. They went to the trouble of signing and initialling the substitution of the word “sole” for the word “exclusive” in the title. This shows that objectively, they intended at least part of the document to serve as a record of their contract.

74. The third point is, though, that the parties did not go through the terms of the agreement, and in particular Part 3 containing the Terms and Conditions, to check that those written terms accorded with the sole agency agreement which they intended. On the evidence, I think it is clear that they did not even advert to that possibility.

75. Mr Mitchell’s evidence that he did not read the Terms and Conditions was not challenged. It was not suggested that Mr Dodd actually read out or referred to the text of cl 3.1. On his evidence, his usual practice was only to refer to the title. I am not satisfied he even did this. If he had adverted to the fact that the clause contained provisions which defined the circumstances in which the right to CPC would be entitled to commission, then both parties would presumably have looked at cl 3.1 to see what those terms were. I think it more likely that Mr Dodd did not turn his mind to the existence of such provisions in the Terms and Conditions.

76. Ordinarily, where one party presents a printed set of terms and conditions to the other party, the objective intention is that the parties are contracting on those terms and the fact that the other party does not read them does not make them any less binding: Parker v South Eastern Railway Company (1877) 2 CPD 416 at 421; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [47]; [57]. But this is an unusual case. Neither party adverted to printed clause 3.1 and neither party was really propounding it. In this regard, I think it is significant that clause 3.1 appeared on the fourth page of the agreement after the third page which was the signature page. In the circumstances the objective intention to incorporate the terms into the agreement is lacking.

77. Where a plaintiff sues on a contract, an essential element of the plaintiff’s case is to prove that the parties have in fact agreed on particular terms. Usually, if the parties have signed an apparently complete agreement, that will be sufficient to establish such agreement. But it is always open to the other party to show, on the evidence, that there was in fact no agreement on those terms.

78. A particular application of this principle is that it is open to a party to prove that, although there is an apparently complete written agreement, the parties in fact agreed on additional oral terms. This does not infringe the parol evidence rule, because the extrinsic evidence goes to identifying the terms of what the parties’ agreement in fact was, not the construction of the terms so identified: County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [8]-[9].

70. By parity of reasoning, it must be open to a party to show that although there is an apparently complete written agreement, there was in fact no agreement on a particular written term. Such cases may be unusual, but in my view this is one of them.

71. For these reasons, I conclude that printed cl 3.1 of the Terms and Conditions is not part of the Agency Contract. It is not necessary to decide whether any of the other terms and conditions were part of the Contract, as none of them bear on the question of remuneration.

72. If I am wrong in this view, then I think that the present is a case for rectification. If the parties did, objectively, agree on the inclusion of cl 3.1, it was clearly a mistake. The proper course would be to rectify the contract so as to exclude it.

73. To this point I have been dealing specifically with cl 3.1 of the printed form. Section A in Part 2 also refers to exclusive agency. The appointment was expressed to be as “as exclusive selling agent for the sale of the property”. This section of the contract was completed by the parties. It appears before the signature part. There is more difficulty in treating it as falling outside what the parties in fact agreed. But for the reasons which I have already given, I think rectification would be available to delete it, or to replace it with the word “sole”. In any event, in the particular circumstances of this case it would probably be necessary, as a matter of construction, to read it as the word “sole”. If I am wrong in this view, I explain below that it would be read that way as a matter of construction in any event.

Construction and application of Agency Contract with cl 3.1 of the Terms and Conditions excluded

83. If cl 3.1 is excluded, all the Agency Contract said about remuneration was contained in Section C in Part 2. Despite the striking out of the reference to 3.3%, the clause as signed still contained a reference to “of final sale price”, although the flat fee provision made this irrelevant. Similarly, the example given also referred to the “GST exclusive sale price”. This clearly conveys, what would probably be implicit anyway, that the remuneration was to arise on “sale”. The conclusion is reinforced by the appointment in Section A of Part 2 of CPC as “selling agent for the sale of the property”.

84. LGF was not, of course, a party to the AGL option agreement. That agreement permitted the option to be exercised by LGF, as AGL’s nominee serving a notice on Mr Mitchell, accompanied by a notice from AGL confirming LGF’s status as its nominee. That was the procedure which was adopted.

85. There is debate in the authorities about the proper juridical analysis of an option. One analysis is that when an option is granted, a sale of the property takes place subject to a condition that notice is given exercising the option. The other analysis is that the grant of an option is an offer by the grantor which cannot be revoked prior to the time for acceptance.

86. In the earlier proceedings in this Division, Lindsay J adopted the latter analysis. On appeal, the argument for Mr Mitchell accepted the correctness of that analysis, and the Court of Appeal dealt with the appeal on that basis. Counsel for CPC submitted that upon the service of the notice by LGF, a contract came into existence between LGF and Mr Mitchell, and this satisfied the requirement of a sale.

87. But the juridical analysis of the exercise of the option as between Mr Mitchell, AGL and LGF does not necessarily determine how the Agency Contract applied. The Agency Contract had to be interpreted, like all commercial contracts, in a commercially sensible way, having regard to the matrix of fact as between CPC and Mr Mitchell.

88. The argument of counsel for Mr Mitchell seemed to me really to assume that if cl 3.1 was excluded from the Agency Contract, there was no entitlement to commission as a result of LGF’s exercise of the option. But even if this point was not conceded by CPC, I think the assumption by counsel for Mr Mitchell is correct.

89. In the ordinary use of language, a “sale” is a transaction entered into voluntarily.

90. The premise for the Agency Contract was that Mr Mitchell had no obligation to sell if the price obtained was less than $15 million unless he wanted to.

91. In effect, as a result of AGL and LGF working together, Mr Mitchell was compelled against his will to transfer the property for $11.15 million. In my view, as a matter of commercial substance, this was not a “sale” for the purposes of the Agency Contract. CPC’s claim fails.

Construction and application of Agency Contract with Terms and Conditions included

92. In case I am wrong in my conclusion, I will now consider what the position would be if clause 3.1 were part of the Agency Contract. In that event it becomes necessary to deal with the problem created by references in the Contract to exclusive agency, when the parties did not intend to create such an agency.

93. There was no application by CPC to have the terms of the Contract rectified. But that is not the only way in which a problem of this sort is addressed by the law. The court may deal with such a problem as a matter of construction, by reading obvious errors in the sense in which they must have been intended: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 133 ACSR 139; [2019] NSWCA 11 at 141-142 [6]-[10]; Fitzgerald v Masters (1956) 95 CLR 420; (1956) 30 ALJR 412.

94. I think that this is the approach I must take in the present case. Under Section A (Agency Appointments), Mr Mitchell appointed CPC as “exclusive selling agent” for the period commencing on 1 June 2013 and ending at midnight on 1 September 2013 and as non-exclusive agent thereafter. Clearly the reference to “exclusive selling agent” must, given the change to the first page of the contract, be read as “sole selling agent”. The definition of “exclusive agency period” as the period from 1 June 2013 to 1 September 2013 is a misnomer. While the label can remain, the rest of the agreement must be interpreted on the basis that the agency during this period was a sole one.

95. This approach runs into difficulty with cl 3.1(a) and (c) which are drafted on the basis of a period of exclusive agency (cl 3.1(a)) followed by a period of non-exclusive agency (cl 3.1(c)). The wording of cl 3.1(a) is quite inapposite to a sole agency. But in my view the problem can be solved by ignoring cl 3.1(a) and reading “non-exclusive agency period” in 3.1(c) as “exclusive agency period”. This has the effect that cl 3.1(c) applied both during the sole agency period and the non-exclusive agency period which followed.

96. So read, this would be consistent with the parties’ intentions. CPC was to have the benefit of its fee if it introduced the buyer, but not if Mr Mitchell found his own buyer.

Introduction during agency period

97. One of the requirements of cl 3.1(c) was that the purchaser had to be a person who had been introduced to Mr Mitchell or the property by CPC during the period of the agency agreement, or another person introduced to Mr Mitchell of the property by such a person. One of the bases on which counsel for Mr Mitchell disputed that LGF answered that description focused on the date of introduction. Counsel submitted that the relevant introduction in fact occurred before the beginning of the agency period, which was specified in Part 2 section A as 1 June. Counsel for CPC characterised LGF as a party introduced by the Mirs. Counsel did not contend that LGF was itself introduced to Mr Mitchell or the property by CPC. Rather, counsel contended that LGF was introduced to the transaction by Mir Group, but that Mir Group was introduced to the property during the period of the sole agency.

98. Counsel for CPC acknowledged that in fact Mr Mitchell first met Mr Mir and began negotiations with him on 23 May. This was, on any view, before the beginning of the agency period. Counsel submitted that this was not fatal to the claim. The argument was that all CPC needed to do was to bring Mr Mir into contact with Mr Mitchell during the period of the agreement. This was done on 6 June and the fact that it had earlier been done on 23 May did not make what happened on 6 June any less “an introduction”.

99. In my view, this submission pays insufficient attention to the way in which the contract was structured. The contract might have specified that in order for CPC to obtain its commission, all that was necessary was that the purchaser was introduced at some stage. But it did not. It specifically added the additional requirement of introduction during the agency period. In this context, I think that the natural implication of the word “introduced” is that it can only happen once. If it were otherwise, it would tend to make the exclusion of commission in a case where the purchaser was introduced before the beginning of the agency period meaningless.

100. I think this is especially clear on the facts of the present case. The practical reality was that Mr Mitchell and Mr Mir were in negotiations with each other, via Mr Dodd, throughout the period from 23 May to 6 June, and beyond. There might be cases in which the original introduction had been so long before, or in such different circumstances, that it would not count, but on the facts, this was not one of them.

101. This conclusion is a harsh one for CPC because both Mr Dodd and Mr Mitchell clearly intended, when the agreement was signed, that it would apply if the Mirs subsequently bought the contract on the terms Mr Mitchell was seeking. But there was no case of rectification or estoppel put forward by CPC. The agreement was a standard form used by CPC with which Mr Dodd was presumably familiar. Its effect could have been avoided had Mr Dodd been careful to sign Mr Mitchell up before bringing him together with Mr Mir. In these circumstances, CPC cannot complain about the outcome.

Implied condition and frustration

102. Counsel for Mr Mitchell contended that the Agency Contract was subject to an implied condition that AGL released its option and the purchase then proceeded with Mr Mitchell. Alternatively, counsel contended that the contract was frustrated because the purchase did not proceed in that way. It is convenient to deal with these contentions together.

103. Clearly Mr Dodd was aware, at all relevant times prior to entering into the agency contract, that the property was subject to an option in favour of AGL. This was made clear to him orally by Mr Mitchell, and Mr Dodd also had a copy of AGL’s letter of 27 May. That letter contemplated the release of AGL’s option as part of any sale. Mr Dodd was also aware that Mr Mitchell was not interested in the Mirs taking over the option, but only in a fresh contract.

104. As already stated, I am inclined to think the Agency Contract was entered into on 1 June rather than on 6 June as Mr Mitchell claimed. The draft sale contract, with its special condition providing for release of the option, was not provided to Mr Dodd until 6 June. But that makes no difference. The draft contract and special condition only reflected the common understanding of Mr Mitchell and Mr Dodd as to how the transaction was to take effect.

105. In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24, Mason J expressed the modern doctrine of frustration in terms of the proposition that (at 357):

… a contract will be frustrated when the parties enter into it on the common assumption that some particular thing or state of affairs essential to its performance will continue to exist or be available, neither party undertaking responsibility in that regard, and that common assumption proves to be mistaken.

106. Aickin J quoted from the earlier decision of Lord Radcliffe in Davis Contractors Limited v Fareham Urban District Council [1956] AC 696 as expressing the doctrine (at 377-380). Lord Radcliffe relevantly said (at 728-729):

Frustration occurs whenever the law recognises that without default of either party contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.

…

It is not hardship or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligations that the thing undertaking would, if performed, be a different thing from that contracted for.

107. Both Stephen J and Wilson J agreed with the judgments of Mason J and Aickin J on this part of the case.

108. The clearest cases of frustration, and those where it was first recognised, are cases where the “subject matter” of the contract ceases to exist: see Taylor v Caldwell (1863) 3 BNS 826; 122 ER 309 and Nickoll & Knight v Ashton, Edridge & Co [1901] 2 KB 126. Taylor v Caldwell concerned the destruction by accidental fire of a music hall which had been let for concerts to take place in the music hall after the contract. Nickoll & Knight was a shipping case where the contract provided for shipping by the SS Orlando. That ship became stranded before the date of the contract. It was held that the ship no longer existed as a cargo carrying ship, and the contract was accordingly at an end.

109. The doctrine was further extended in Krell v Henry [1903] 2 KB 740 where rooms on Pall Mall were rented for the purpose of viewing the coronation of King Edward VII. Because of the King’s illness the parade was cancelled and it was held that the hirer could not withdraw from the contract. In that case there was nothing in the terms of the contract itself to identify the purpose of the hire, but evidence that this was the parties’ intention was admitted as part of what would now be called the matrix of fact. Mason J referred in Codelfa to the decision so as to rebut the suggestion that the common assumption to which his Honour referred had to be found in the contract itself. He said (at 357-358):

The answer to this objection is that, granted the assumption needs to be contractual, in the case of frustration, as with the implication of a term, it is legitimate to look to extrinsic evidence in the form of relevant surrounding circumstances to assist us in the interpretation of the contract, unless its language is so plain that recourse to surrounding circumstances would amount to no more than an attempt to contradict or vary the terms of the contract.

110. In the present case there was a similar common assumption which, although not expressed in the terms of the Agency Contract itself, can be discerned from the relevant surrounding circumstances. In my view there is a close analogy with the cases to which I have referred. One might almost say that the subject matter of the contract was a sale of the property free of the AGL option. It cannot have been intended that, had AGL changed its mind and decided to proceed with the power station after all, CPC would recover any remuneration.

111. In Scanlan’s New Neon Limited v Tooheys Limited (1943) 67 CLR 169; [1943] HCA 43, Williams J said (at 223):

It is the performance of a common object which has to be frustrated, and not merely the individual advantage which one party or the other might have gained from the contract. In Krell v Henry the contract vanished on the King’s illness, because in the words of Vaughan Williams LJ, the coronation procession and the relative position of the rooms was “the basis of the contract as much as for the lessor as for the hirer” so that after that date neither party was able to perform a common purchase which went to the root of the contract; that is to say, the plaintiff was unable to hire to the defendant and the defendant was unable to obtain from the plaintiff the use of rooms from which the coronation could be viewed. (footnotes omitted)

112. So it is in the present case. Obviously Mr Mitchell would not be able to achieve the sale that he was looking for unless the option was released. But the contract also provided for CPC to have authority to sell the property. Clearly CPC could not do that either unless the option were released.

113. For these reasons, I conclude that the contract by AGL’s decision not to release the options and instead to authorise LGF to exercise the option as its nominee deprived the Agency Contract of any continuing legal effect. It is unnecessary to consider whether the frustration operated by means of an implied condition or a supervening termination.

114. This conclusion makes it unnecessary to consider whether the Agency Contract should be rectified to provide expressly that CPC was not entitled to commission unless AGL released its option.

Was the purchase by LGF a purchase within the meaning of the agency contract

115. As I understood it, there remained an issue, even if clause 3.1 was part of the Agency Agreement about whether LGF, in purchasing the property as nominee for AGL under the option, met the description of a person who “enters into a contract (which includes by way of exercise of an option) to purchase …. the Property” within the meaning of cl 3.1(c). But in view of my other conclusions I do not think it necessary to consider this question.

Unconscionable conduct

116. Unconscionable conduct in connection with a contract may be of various types: unconscionability in the formation of the contract; unconscionability in its terms; and unconscionability in pursuing rights under it: see Australian Consumer Law, s 21(4).

117. In the present case I am unable to see any unfairness in the way in which the contract was formed. Mr Mitchell was an experienced business person. The contract provided for a cooling off period. Mr Mitchell had his own solicitor acting on the transaction. He could easily have sought advice on the terms of the agency agreement from his solicitor before entering into the agreement, or during the cooling off period. In my opinion, Mr Dodd did not impose on him in any way at all.

118. In the light of my conclusions on the construction and application of the Agency Contract, it is unnecessary to consider other forms of unconscionability.

Conclusion and orders

119. I have concluded that CPC has no contractual entitlement to the $200,000 commission which it claims. CPC’s claim fails. Mr Mitchell’s cross-claim falls away.

120. I see no reason why the costs of the proceedings should not follow the event. In this regard I see the cross-claim as responsive to CPC’s claim. The costs order in favour of Mr Mitchell will include the costs of the cross-claim. Any application for any different order can be made in accordance with the Rules.

121. The orders of the Court are:

1.   Order that the plaintiff’s claim be dismissed.

2.   Order that the cross-claim be dismissed.

3.   Order that the plaintiff pay the defendant’s costs of the proceedings.   

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Decision last updated: 06 June 2019