Costi Cohen Pty Ltd v Bo - [2025] NSWDC 356

District Court

New South Wales

Medium Neutral Citation: Costi Cohen Pty Ltd v Bo [2025] NSWDC 356
Hearing dates: 5 – 7 August 2025
Date of orders: 12 September 2025
Decision date: 12 September 2025
Jurisdiction: Civil
Before: Habib SC DCJ
Decision:
(1) The parties are to confer, and provide to my associate within 7 days, draft orders by consent giving effect to these reasons including a calculation of the pre-judgment interest to which Costi Cohen is entitled to pursuant to s.100 of the Civil Procedure Act. If the parties cannot agree on the orders, they are to provide their competing orders within the same 7 days.
(2) Any party who wishes to file submissions on those submissions within 7 days, such submissions to be no more than 5 pages in length.
(3) If a party wishes to address the Court on the question of costs, they are to notify my associate of that fact within 7 days.
(4) If the parties do not agree on orders pursuant to order 1 above, or either party gives notice of a wish to address the court on costs pursuant to order 3 above, the Court will list the matter on either 26 September 2025 or 10 October 2025. If a listing is required, the parties are, within 7 days, to notify my associate identifying which of the two dates is mutually preferred. Otherwise, the Court will make final orders in chambers.

Catchwords:
CONTRACTS –construction – uncertainty – unfair terms – misleading and deceptive conduct – unconscionability – Contracts Review Act – conventional estoppel – quantum meruit

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law
Contracts Review Act 1980 (NSW)
Married Women’s Property Act 1893 (NSW)

Cases Cited:
ACCC v TPG Internet Pty Ltd (2020) 278 FCR 450
Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204; (2015) 239 FCR 33
Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377; (2016) ATPR 42-517
Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (2021) FCA 347
Australian Securities and Investments Commission v Bank of Queensland Ltd [2021] FCA 957
Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1
CCP Australia Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232
Con-Stan Industries ofAustralia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203
Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640
Fitzgerald v Masters (1956) 95 CLR 420
Horton v Jones (1934) SR (NSW) 359
Karpikv Carnival PLC (2023) 415 ALR 491
Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] FCA 400; (1989) ATPR 46-054
Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5
Kowalczuk v Aecom Finance Pty Ltd (2008) 77 NSWLR 205
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560
Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357
Miller & Assocs Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357; 270 ALR 204; 84 ALJR 644
Moratic Pty Ltd v Gordon [2007] NSWSC 5
Pavey & Matthews Ltd v Paul (1987) 162 CLR 221
QBT Pty Ltd v Wilson [2024] NSWCA 114
Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77; 12 FCR 477; (1986) ATPR (Digest) 46-010
Roude v Helwani [2020] NSWCA 310
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
WorkPac Pty Ltd v Rossato (2021) 271 CLR 456

Texts Cited:
Herzfeld and Prince, Interpretation (3rd ed, 2024, Thomson Reuters)
Macquarie Dictionary, 9th Edition (2023)

Category: Principal judgment
Parties: Costi Cohen Pty Ltd (Plaintiff)
Yin Bo (Defendant)
Representation:
Counsel:
Mr P Folino-Gallo (Plaintiff)
Mr P Reynolds (Defendant)
Solicitors:
Hitch Advisory (Plaintiff)
MLH Lawyers (Defendant)

File Number(s): 2024/356522
Publication restriction: Nil

judgment

judgment

Introduction
Facts not in dispute
Costi Cohen’s Witnesses
Tasos Costi
Mr Harkins

Mr Bo’s Witnesses
Mr Bo
Ms Ma

The Contract Claim
The Agency Agreement
Contractual construction principles

Execution and Uncertainty
Legal Principles
Consideration

Construction and application of clause 4.2(a)
Parties’ Position on construction
Consideration
Did Mr Bo procure Boying to enter into a contract to purchase the Drummoyne property within the meaning of clause 4.2(a)(ii)?
Did Costi Cohen perform its contractual obligation to entitle it to payment under clause 4.2

Unfair Terms Defence – s.23 of the ACL
Principles
Clause 2(c)
Clause 4.2(a)
Clause 4.2(a)(iv)
Clause 13
Clause 20(a)

Conclusion on the contract claim
Misleading and deceptive conduct – s.18 of the ACL
Principles
Services to be provided personally
That the agreement was for six months
That a commission of 2% would be payable if Costi Cohen successfully introduced a property with a net rental yield of more than 6.5% which did not set out the full circumstances set out in clause 4.2
Failures to explain the agreement and other matters raised by Mr Bo

Did Costi Cohen engage in unconscionable conduct
Mr Bo’s claim under the Contracts Review Act
Plaintiff’s alternate claims
Conventional Estoppel
Costi Cohen’s Claim in Quantum Meruit

Conclusion

Introduction

On 13 November 2023, the Plaintiff, Costi Cohen Pty Ltd (“Costi Cohen”) and the Defendant, Mr Bo (“Mr Bo”) executed an exclusive agency agreement (“Agency Agreement”). Costi Cohen is a commercial buyer’s agent. Mr Bo was interested in acquiring a commercial investment property.
Costi Cohen seeks recovery of commission it claims is due by Mr Bo by reason of the purchase by Boying Development Pty Ltd (“Boying”) of a commercial property at 66-72 Victoria Road, Drummoyne (“the Drummoyne property”). It does so on three bases:

first, pursuant the Agency Agreement. Costi Cohen also relies on an indemnity clause in the Agency Agreement for its claim to be fully indemnified for its legal costs of these proceedings;

secondly, in the alternative, it seeks an amount on a quantum meruit for work it did in sourcing properties for Mr Bo which, it says, led to the purchase of the Drummoyne Property;

thirdly, it says that to the extent that the Agency Agreement is not binding, the parties acted on a mutual assumption such that, by reason of a conventional estoppel, it is entitled to be paid its commission.

Costi Cohen claims damages for breach of contract or in the alternative, an order that Mr Bo pay to it $166,100 or such other amount the Court determines is fair and reasonable. It also seeks interest and costs.
Mr Bo denies any liability to Costi Cohen pursuant to the Agency Agreement or otherwise. Mr Bo relies on several defences and claims brought by way of cross claim. The matters raised in the cross claim repeat the positive matters raised in his defence. Accordingly, when I deal with Mr Bo’s defences in this judgment, I am also dealing with the equivalent claim in his cross-claim. Mr Bo:

claims that the Agency Agreement’s use of the term ‘Client’ meant that it was never properly executed and further that the use of the term ‘Client’ rendered the Agency Agreement void for uncertainty;

puts in issue whether Costi Cohen performed its obligations under the Agency Agreement with respect to the Drummoyne property;

alleges that the Agency Agreement contained unfair terms within the meaning of s.24 of the Australian Consumer Law (“ACL”);

alleges that Costi Cohen engaged in misleading and deceptive conduct in contravention of s.18 of the ACL;

alleges that Costi Cohen engaged in unconscionable conduct; and

alleges that pursuant to the Contracts Review Act 1980 (NSW), the Court ought to refuse to enforce the Agency Agreement.

Although Mr Bo also pleaded that the Agency Agreement was liable to be rescinded, that claim was not pressed in final address and I do not deal with it.
A summary of my conclusions appears in paragraph 221 below.

Facts not in dispute

The following facts were not in dispute:

On 24 October 2023, Mr Bo was introduced to Costi Cohen by a representative from Knight Frank. A representative from Costi Cohen, Zachery Harkins, on the same day, had a conversation over the telephone with Mr Bo during which they discussed Mr Bo’s interest in acquiring a commercial property and Costi Cohen’s services;

On 25 October 2023 Mr Bo emailed Costi Cohen asking it to provide information memoranda on two properties, one in Smithfield and one in Rozelle;

On 26 October 2023, Mr Harkins, by email, provided Mr Bo with information on those two properties;

On 26 October 2023, Mr Harkins, by email, provided Mr Bo with information on two other properties, one at Rosebery and one at St Leonards;

Further emails were exchanged between Mr Harkins and Mr Bo which related to a further property at Frenchs Forest;

In November 2023, Mr Harkins met with Mr Bo in person. They further discussed Costi Cohen’s services and fees;

On 13 November 2023, Costi Cohen provided, by way of email, an Agency Agreement to Mr Bo. Two minutes after receiving the Agency Agreement, Mr Bo signed it electronically on his mobile phone;

On the same day, after the issue of the Agency Agreement, Costi Cohen issued an invoice for its retainer fee of $5,500 to Y&M Australia Pty Ltd (“Y&M”). It was Mr Bo who asked for the invoice to be issued in Y&M’s name. The retainer fee was paid on 15 November 2023 ;

After 13 November 2023, Costi Cohen was engaged in seeking to identify properties for Mr Bo. Mr Harkins sets out in some detail the work carried out in his affidavit of 29 December 2024;

On 25 March 2024, Mr Harkins called Mr Bo to advise him about the Drummoyne Property;

Also in March 2024, Mr Harkins was in contact through WhatsApp messages, with Mr Bo’s wife, Geying Ma (“Ms Ma”), on the request of Mr Bo, in relation to certain properties, including the Drummoyne property;

On 2 May 2024, Mr Harkins sent Grandwin Legal (solicitors who acted for Y&M) a draft contract for the purchase of the Drummoyne property. Further emails were exchanged between Grandwin Legal and Sage Legal (the vendor’s solicitors);

On 15 May 2024, an offer was made by Y&M for the purchase of the Drummoyne property for $7.35m. Mr Bo and Ms Ma, both directors of Y&M, executed a contract for the purchase of the Drummoyne property for $7.35m and it was sent to Sage Legal by Mr Harkins on 16 May 2024;

On 17 May 2024, Sage Legal emailed Costi Cohen advising that the vendor had rejected the offer for the Drummoyne property. Mr Harkins informed Mr Bo of that rejection on 21 May 2024;

Boying was incorporated on 20 May 2024. Shortly after Ms Ma became the sole shareholder;

On 23 May 2024, Boying offered to purchase the Drummoyne property for $7.55m;

On 7 June 2024, Boying exchanged contracts with the vendor of the Drummoyne property for the sale price of $7.55m and settlement occurred on 19 July 2024.

Costi Cohen’s Witnesses

Tasos Costi

Costi Cohen relied on the affidavit of Tasos Costi. He was called as a witness and was cross-examined.
He gave evidence that Costi Cohen’s work involves acting on behalf of prospective purchasers of commercial properties to identify, recommend and negotiate their acquisition. The work involves meeting with clients to identify the nature and type of property they are seeking, undertaking searches from both publicly available sources and through contacts in the industry.
He gave evidence that he was the lead or principal agent for Mr Bo whilst Mr Harkins was a senior associate agent. Mr Harkins was the first point of contact for Mr Bo. Mr Costi, however, did not have any conversations with Mr Bo prior to execution of the Agency Agreement.
He gave evidence that it was common in his experience for clients to purchase commercial properties through special purpose vehicles; that it was common for clients to establish corporate entities or to nominate corporate entities for the purchases and/or change the entity though which they wish to exchange contract on a purchase. His evidence is that, because of this, Costi Cohen’s usual practice is to enter into agency agreements with the individual providing instructions to Costi Cohen so that that individual was the ultimate client and could nominate any purchasing entity of their choosing.
He gave evidence in cross examination that pages 4 to 9 of the Agency Agreement are standard terms used by Costi Cohen. His evidence is that clients have sought to negotiate the standard terms although he accepted that it was not a frequent event. He accepted that Costi Cohen’s position in those circumstances was to indicate that they were their standard terms and conditions. He could not recall if they have ever been changed after negotiation.
In relation to the Drummoyne property, he accepted that he sent an email on 4 April 2024 in the following terms:

"Yes, there is already an offer from another developer of $8.55 million with six months. Let's not waste any more time here please. Best we consider another option. Thanks."

Mr Costi said that, in that email, he was passing on what he was told by the seller’s agent, and he felt at that point the price differential between $8.55m and what he understood Mr Bo wanted to spend was too large.
Mr Costi agreed that after that email, through a process of communications between Mr Bo and Costi Cohen, Costi Cohen recommended that an offer of $7.35m with a signed contract be issued in relation to the Drummoyne property.
I accept the evidence of Mr Costi referred to above. My clear impression in observing Mr Costi give his evidence was that he was a witness of truth, although he was cautious in the way he gave his evidence, often answering with a rider in the form of “yes, with qualification”. Nevertheless, both his demeanour and the way he gave his evidence did not betray any sense that he was being untruthful. He was, however, only tangentially involved in the dealings between Costi Cohen and Mr Bo.

Mr Harkins

Costi Cohen relied on two affidavits of Mr Harkins. He gave evidence and was cross examined.
In his first affidavit, Mr Harkins gave evidence that in his initial conversation by phone with Mr Bo, Mr Bo indicated interest in acquiring commercial property up to a price of $13m with potential to increase to $20m. Mr Bo ideally wanted to have a net yield of 6.5%. Mr Harkins outlined Costi Cohen’s role, namely as a specialist in sourcing properties off market and in running due diligence, negotiating deals and assisting with the exchange and settlement of properties. He met Mr Bo in person in November 2023 and explained that Costi Cohen charged a retainer fee of $5,000 payable at the time of entry into the agency agreement, plus a commission of 2% upon a property being purchased. He gave evidence that Mr Bo wanted to sign an agreement ‘on the spot’ but an agreement was yet to be prepared.
Mr Harkins’ evidence was that Mr Bo’s initial criteria included a preference for a net yield of 6.5% with ideally a five-year lease term, though this was not a strict requirement. Mr Harkins gave evidence of the work he performed after execution of the Agency Agreement. He identified a range of properties for Mr Bo, including at Waterloo, St Leonards, Summer Hill and other locations. He investigated the prospective properties by reviewing available information and provided information on the properties to Mr Bo and spoke to him about them. At Mr Bo’s request, he also spoke to and met Ms Ma and organised inspections with her. He negotiated with vendors of some of the prospective properties. He provided further detail in his affidavit of the work he did in relation to the prospective properties which was corroborated, in large part, by contemporaneous documents referred to in paragraphs 30, 32,34,37,39,42,45,47,49,52,57,66,67 and 69 of his first affidavit.
Mr Harkins sets out, in paragraphs 70 to 96 of his first affidavit, that he identified the Drummoyne property, he dealt with Mr Bo and Ms Ma about the property, he was involved in the making by Y&M of an offer to purchase it at $7.35m and he communicated the vendor’s rejection of the offer to Mr Bo. His evidence is corroborated by the documents referred to in paragraphs 76, 79, 82, 85, 87, 92, 94, and 96 of his affidavit.
I accept Mr Harkins’ evidence referred to in paragraphs 18-20 above and find that Mr Harkins carried out substantial and meaningful work after execution of the Agency Agreement in sourcing properties for Mr Bo and assisting him in relation to the possible purchase of commercial properties that may have been of interest to Mr Bo, including the Drummoyne property.
In his reply affidavit, Mr Harkins gave evidence that his discussions with Mr Bo and Ms Ma were in English and he observed their interactions with third parties were in English. He gave further evidence about what he told Mr Bo about Costi Cohen’s services prior to the execution of the Agency Agreement. I will deal with that below. He also gave evidence of the discussions he had with Mr Bo after execution of the Agency Agreement, in relation to a commercial property that Mr Bo was looking to purchase in Bondi Junction. Mr Bo told Mr Harkins about inquiries he had made about the property prior to approaching Costi Cohen and asked Mr Harkins to confirm that he would not be required to pay a commission to Costi Cohen if he purchased the Bondi Junction property. Mr Harkins gave that confirmation.
In cross examination, Mr Harkins first said that prior to the Agency Agreement being issued, he told Mr Bo that its minimum term would be six months. His reply affidavit, however, is to the effect that prior to the agreement being issued, he did not discuss the agency term period with Mr Bo. He accepted his answer in cross examination contradicted his affidavit. He was ultimately driven to accept that he said to Mr Bo that the agreement was for six months but did not describe that as a minimum. He also accepted that he did not tell Mr Bo that the agreement continued after six months until terminated on 30 days’ notice (or until a property was purchased). He also agreed that he did not explain the terms of the Agency Agreement to Mr Bo or check that Mr Bo understood it after it was sent to him.
My impression of Mr Harkins was that he was a witness of truth, although in relation to what was said concerning the term of the Agency Agreement, he was not careful in his responses in cross examination and gave inconsistent evidence. Whilst the exchange concerning that matter was not to the credit of Mr Harkins, I considered he did his best, otherwise, to give truthful answers. He was prepared to make concessions when it was appropriate and gave his evidence, I thought, in a forthright manner.

Mr Bo’s Witnesses

Mr Bo relied on an affidavit he made, and an affidavit of Ms Ma. Both were called as witnesses and cross-examined.
Before addressing their evidence, I note that Mr Bo and Ms Ma gave evidence in cross-examination that the contents of their affidavits, or at least parts of it, were explained in Chinese to them before they affirmed their affidavits; in the case of Mr Bo, it seems by way of translation technology and by his solicitor who speaks Chinese. However, neither affidavit contained any indication that that occurred or what it was that was explained. The affidavits did not contain the certification required by r31.62 of the UCPR. No objection was taken on that basis, no doubt because Mr Folino-Gallo, counsel for Costi Cohen, did not know of these facts until the cross-examination. Mr Folino-Gallo indicated that his client had no objection to me making an order nunc pro tunc that the defendant may rely on these affidavits notwithstanding non-compliance with UCPR r31.62. I make that order. Nevertheless, it is not satisfactory that there was a failure to comply with the rule. It also leaves some uncertainty as to what each understood their affidavit to say. Mr Reynolds, counsel for Mr Bo, submitted that each had confirmed the truth of their affidavits when they took the witness stand and provided no indication, when giving evidence, that they were departing from the contents of their affidavits. However, their confirmation does not materially assist because it remains dependent upon their understanding of the contents of the affidavits, which remained unexplained, unless touched upon in cross-examination.

Mr Bo

Mr Bo, in his affidavit, professed to have a very limited ability to comprehend and communicate in English. He is a Chinese citizen and resides in China. His evidence was that he comes to Australia every one to two years.
Mr Bo said in his affidavit that, prior to signing the Agency Agreement, Mr Harkins told him that:

Costi Cohen would provide to him personally a service to identify and introduce a property with a net rental yield of more than 6.5% for a period of 6 months from the date of signing the agreement; and

In the event they introduced such a property and if he bought the property, then he would be obliged to pay a commission calculated on 2% of the purchase price.

Mr Bo claims that when he received the agreement, he signed it on his phone in two minutes and that although he knew the agreement contained terms on pages 4 to 9 of the Agreement, he did not think any of those terms would change or add to the key commercial terms he discussed with Mr Harkins. He considered the terms would be ‘standard and generic provisions’, although what he meant by that was unexplained in the evidence. Mr Bo did not refer, in his affidavit, to the retainer of $5,000 (plus GST) that formed part of the Agency Agreement – that is, he does not say he was told about it, but he clearly paid it without complaint.
Mr Bo states that he was not told by Costi Cohen to obtain independent legal advice, nor did anyone explain the Agency Agreement to him, including the definition of ‘Client’, or the minimum term of six months. He says that:

He would not have agreed to the Agency Agreement if he was obliged to pay commission if any ‘Client’ as defined in clause 1.1(f) purchased a property;

He would not have left the agreement to continue indefinitely beyond six months without his express consent.

He states in his affidavit that on 2 May 2024, the vendor’s agent in relation to the Drummoyne property contacted him and indicated that the vendor would sell the property to him for $7.8m. He claims he spoke to his wife on or about 14 May 2024 and told her that he was interested in the property at a price of $7.35m. He dealt with Costi Cohen in relation to an offer to the vendor for $7.35m which was rejected, and he claims that after that rejection he gave up on the property. He says he was subsequently told by the vendor’s agent that the lowest price the vendor would accept was $7.6m which information he passed onto his wife. He says his wife thought the vendor would accept $7.55m (although the basis for that thought was not identified) and that she requested him to ask his solicitor to send an offer in that amount in Boying’s name. He states in his affidavit that he did not, and will not, receive any financial benefits from Boying’s purchase.
Mr Bo was cross examined. The following emerged:

Mr Bo has been a director of Y&M since 2 December 2013, apart from a short time when he ceased to be a director. Y&M has been used as a vehicle to purchase property since December 2013;

as a company director, he has used an accountant for the purpose of preparing tax returns in Australia;

various changes have occurred in the shareholding of Y&M. He and Ms Ma were, at the time of his dealings with Costi Cohen, directors and shareholders of Y&M;

he had access to professional help of an accounting and legal nature when required and he called on that help from time to time when he wished to do so;

Y&M owned commercial property in Bondi Junction which was purchased for $12.5m. Mr Bo accepted he was an active commercial property investor well before engaging Costi Cohen;

he and Ms Ma were directors of FA-Futured Developments Pty Ltd which owns a property in Merton Street, Zetland. In the capacity as a director of the company, Mr Bo executed a lease agreement on 1 January 2018;

he was well capable of determining likely yields on commercial investment properties;

he understood the concept of personal guarantees, caveatable interests and stamp duty;

in relation to the Drummoyne property, he wanted to keep his total out of pocket expenditure, including any commission payment, to $7.5m;

within approximately a month of the time Boying settled on the Drummoyne property, Mr Bo was trying to sell commercial property at Macquarie Park;

in relation to Boying’s purchase of the Drummoyne property he received correspondence from Mr Liu (the original solicitor he used when seeking to purchase the property through Y&M) that was not copied to his wife. Mr Bo initially did not accept this and said he thought all correspondence was sent to his wife and was copied to him. He was confronted with objective evidence that that was not true;

he claimed that when he signed the Agency Agreement there was “a little bit” of urgency from Mr Harkins for it to be signed and urgency from himself. He had not said this in his affidavit;

he accepted that he continued communicating with Mr Harkins about purchasing the Drummoyne property after six months from execution of the Agency Agreement and he, with Costi Cohen, were still negotiating for that purchase. He accepted that had the property been purchased for the $7.35m offered by Y&M, he would have been liable to pay the commission on that purchase notwithstanding it occurred beyond six months from execution of the Agency Agreement and the purchaser was Y&M. He claims it was Costi Cohen who contacted him after the six-month period to continue discussing a possible purchase;

He said he would not have purchased the Drummoyne property for $7.55m, claiming his ceiling was a total outlay of $7.5m. In an answer to a question from the Court, he said even if he could purchase the property at $7.55m inclusive of commission, he would not have done so. I do not accept that evidence. The difference between the two figures is only 0.66%. Whilst a purchaser is likely to have some limit in terms of price before the purchase no longer provides sufficient value, I consider that in the context of the commercial property that Mr Bo was interested in, it is implausible that he would have refused the purchase at a total outlay of $7.55m as opposed to $7.5m. Further, Mr Bo’s demeanour in answering the Court’s question gave me the distinct impression that he was being untruthful.

Mr Bo was not an impressive witness. He sought to minimise his role in instructing Mr Liu in relation to Boying’s purchase of the Drummoyne property. When he was taken to documents sent by him that showed him on another occasion pursuing his legal rights, he sought to deflect their effect by claiming that it was his solicitor who prepared the documents, even though they were sent from his email address, and even though he gave evidence that in general he refrained from consulting solicitors due to their high cost. He sought to minimise his involvement and understanding in commercial documents. He sought to rationalise emails to which he was taken rather than give direct evidence about them. In relation to his execution of the Agency Agreement, nowhere in his affidavit evidence did he suggest that anyone from Costi Cohen asked or suggested that he execute it quickly. In cross-examination, he suggested that Mr Harkins in fact mentioned to him to be quick in signing the Agency Agreement, although he later watered that down to suggest the urgency was only “a little bit” from Mr Harkins. I reject that evidence. There is no contemporaneous documentary support; it was not referred to in Mr Bo’s affidavit; his demeanour in giving that evidence did not give me the impression that he was being truthful; and the proposition was not put to Mr Harkins.
In giving his evidence, I observed that he appeared to have no difficulty in reading and understanding the many documents to which he was taken, which were in the English language. He used the interpreter intermittently in giving his evidence, although I do not place any reliance on that.
Having observed his giving of evidence, my general impression of him was that he was advocating for his position rather than doing his best to assist the Court irrespective of the consequences of an answer for his case. For the purposes of fact finding, the Court will only accept Mr Bo’s evidence on any critical contested issue if it is inherently likely, against interest, or corroborated by contemporaneous written evidence or other reliable testimony.

Ms Ma

Mr Bo relied on an affidavit of Ms Ma.
In her affidavit, Ms Ma gave evidence that she attended an inspection of the Drummoyne property on 25 March 2024 with Mr Harkins. At the time she had no knowledge of the property and had no intention of purchasing it but agreed to help Mr Bo by inspecting it. The inspection was very brief and concluded within five minutes. She thought the location of the property was good. She said she only knew Mr Harkins was a real estate agent and did not know he was from Costi Cohen.
She said in her affidavit that she had a conversation with her husband on 14 May 2024 in which he told her that he was considering purchasing the property for $7.35 million. She had a subsequent conversation with her husband, and he told her that the vendor or agent said that the lowest price the vendor would accept was $7.6 million. She said she had a further conversation with her husband on 22 May 2024, and she said that if Mr Bo didn’t want to buy the property she might and that she thought the property was worth a little more than $7.35 billion. She told her husband that she wanted to send an offer of $7.55 million to the vendors. She said that she was holding onto a lot of funds which was a waste if she did not invest those funds. She said Mr Bo agreed to use Mr Liu to deal with the legal process. She said she incorporated Boying to buy properties for herself and separate from her husband. She said in her affidavit that the purchase was intended for herself and had nothing to do with Mr Bo. She said that all profits and losses in connection with the property will be borne by her or her company and not Mr Bo.
Ms Ma was cross-examined. She accepted that Mr Bo was more experienced in the Australian property market than she was, at least with respect to pricing. She accepted that over the 11 years of Y&M’s operation, Mr Bo primarily made the decisions with respect to properties to purchase.
She claimed that although Boying was incorporated on 20 May 2024 she made the application for incorporation with her accountant in March 2024. There is no contemporaneous document in evidence to support that evidence nor is it referred to in her affidavit. She claimed that when she attended the inspection of the Drummoyne property, she thought Mr Harkins was the agent for the vendors of the property.
She was taken to correspondence with Mr Liu in relation to the purchase of the Drummoyne property which involved Mr Bo. She refused to concede that Mr Bo was the one facilitating the transaction and claimed he was merely helping her complete the transaction. At first she claimed that her husband was merely helping her to get into contact with the solicitor and she sought to explain certain correspondence sent to Mr Bo by suggesting that the vendors, having previously understood that Y&M was seeking to purchase the property, naturally thought it was convenient for Mr Bo to be the contact person. She was taken to emails concerning the potential purchase of the property which were sent to her husband and not copied to her. She sought to minimise Mr Bo’s involvement in the purchase by Boying. She maintained that she, through her company, was the sole purchaser.
I did not regard Ms Ma as an impressive witness. She refused to concede matters that were established by documents, and she sought to explain away, in an argumentative manner, her husband’s involvement in the purchase by Boying of the Drummoyne property.
The effect of her evidence was that she attended the Drummoyne property once for an inspection that took no more than five minutes in circumstances in which she had no interest in purchasing the property and thought Mr Harkins was the vendor’s agent. Apart from her execution of the Y&M contract (as part of the $7.35m offer which was rejected), there is no evidence of her having any further involvement until the alleged conversations she said she had with Mr Bo in May 2024, some two months later. There is no evidence she engaged in any research in relation to the Drummoyne property. There is no evidence that she knew anything about the nature of the leases on the property (for example length, the identity of the tenants, or the rent) nor any details about the square metreage of the property. In her cross-examination she appeared to justify a higher purchase price by speaking of potential capital increases. However, there is no evidence that she engaged in any analysis of property trends in Australia, New South Wales, Sydney, or the Drummoyne area in relation to commercial properties, let alone having a basis to consider trends of 30% or 40% to which she gave evidence (even though that evidence in itself was vague as to the timing of the suggested trends, and whether those were theoretical figures referred to simply to make her point). In short there is no evidence of any material activity engaged by Ms Ma in relation to the Drummoyne property between the short five-minute inspection in March 2024 and the alleged conversations with her husband immediately prior to the making of the offer by Boying.
The documents concerning Boying’s purchase of the Drummoyne property reflect Mr Bo’s continued involvement in the purchase. On 5 May 2024, Mr Liu sent an email to the vendor’s solicitors noting that he acted for “the purchaser Y&M Australia P – L”. On 23 May 2024 Mr Liu sent an email to the vendor’s solicitors which was copied only to Mr Bo. In it,he said: “we advise that our client has revised their offer as follows: our offer price to be increased to 7.55 million; purchaser entity be revised to Boying Developments Pty Ltd”. It is instructive that the solicitor said “our client has revised their offer” because the engagement with the vendors had been on behalf of Y&M Australia Pty Ltd, a company in which both Mr Bo and Ms Ma had shareholder interests, although Mr Bo was the driving force with respect to property purchases.
Mr Bo, without copying Ms Ma sent an email dated 28 May 2024 to Mr Liu in which he asked him to “pls send contract… to us for sign ASAP then we send… for sign by vendor… The effective time for sign is until tomorrow 5:00 PM”. Again, that email is instructive because it is Mr Bo and not Ms Ma who is instructing Mr Liu and also because it refers to the sending of the document for “us” to sign. On 28 May 2024, Mr Liu sent an executed contract to Knight Frank copied only to Mr Bo and the vendor’s solicitor. Similarly, emails on 7 June 2024 between Mr Liu and the vendor’s solicitor were copied only to Mr Bo and not Ms Ma. On 16 July 2024, Grandwin Legal, Mr Liu’s firm sent proposed settlement figures copying the email to Mr Bo only and not Ms Ma. On 16 July 2024 the vendor’s solicitors responded to Grandwin Legal by email concerning the proposed settlement figures copied to Mr Bo. Grandwin Legal sent a further email on 17 July 2024 to the vendor’s solicitor copied only to Mr Bo and not Ms Ma. On 16 July 2024 Mr Liu emailed Mr Bo only, telling him that the settlement figures had been confirmed by the vendor and noted certain amounts would be paid at settlement. That email was then sent to both Mr Bo and Ms Ma on 18 July 2024 and subsequently Mr Liu sent Ms Ma a confirmation on 19 July 2024 of the receipt of the settlement fund of $7.252 million and noted the manner in which it would be dispersed.
In the light of the correspondence referred to in paragraph 45 above, I reject Ms Ma’s characterisation of Mr Bo’s involvement in the purchase by Boying of the Drummoyne property. I consider that her evidence in this regard was not truthful.
Similarly to my impression of Mr Bo, my general impression of Ms Ma was that she was advocating for Mr Bo’s position in these proceedings rather than doing her best to assist the Court irrespective of the consequences of an answer for his case. I regarded her evidence as involving argumentative answers and attempts to avoid conceding matters she considered unhelpful to her husband’s case. For the purposes of fact finding, the Court will only accept Ms Ma’s evidence on any critical contested issue if it is inherently likely, against interest or corroborated by contemporaneous written evidence or other reliable testimony.

The Contract Claim

The Agency Agreement

The Agency Agreement commences with recitals, then pages which include “Parts” into which relevant details were inserted, followed by 6 pages of “Terms of Agreement” (“Terms”).
Part 1 of the Agreement is headed “Client Details” and refers to Mr Bo’s name as the ‘Client Name’.
Part 4.1 of the Agreement is headed “Property Details” and includes the following description:

Property: Commercial Investment Property
Location : Sydney Metro;
Description of Property: - client is looking for an investment property in Sydney
Metro
Ideally targeting net yield of 6.5% but will consider other assets that have potential to increase yield;
5 year lease term preferred
Approximate Price Range - $3m to $13m (potential to increase to $20m).

Part 6 is headed “Term” and identifies a commencement date of 13 November 2023 and a minimum term of six month.
Part 7 is headed “Fees & Retainer Fee” and identifies a retainer fee of $5,000 plus GST and a commission rate of 2% (plus GST) of the ‘Purchase Price’.
Clause 1.1 of the Terms is a definitions clause. The chapeau of clause 1.1 provides that in the Agreement the defined terms carry their defined meanings unless the contrary intention appears.
The following terms are included in clause 1.1

Affiliate: means any person or entity (including without limitation companies, partnerships trusts, listed property trusts and unlisted property trusts) that, in relation to their property investments or business affairs acts or could reasonably be expected to act in accordance with the Client’s directions or wishes, or in concert with the Client, or is otherwise under the control of the Client or is a Relative of the Client, including any Associated Entities.
Associated Entities: has the meaning prescribed in s50AAA of the Corporations Act 2001 (Cth)
Client: means the party described in Part 1 and includes its Associated Entities, Affiliates, directors, officers, employees, contractors, successors and permitted assigns and any other person nominated in writing by the Client to the Agent to act as the Client’s nominee, where such written notice includes the nominated third party’s intention to be bound by this Agreement.
Control: has the meaning prescribed in s50AA of the Corporations Act 2001 (Cth)
Fees: means either the agreed fixed fee or a percentage of the purchase price of the Property as listed in Part 6 of the Particulars plus GST
Property: means any property which meets any of the criteria set out in Part 4 of the Particulars (or as varied)
Relative: means, in relation to a person, any of the following:
i. Spouse;
ii. blood or adoptive relative;
iii. blood or adoptive relative of the person’s Spouse; and
iv. Spouse of any blood or adoptive relative of the person.

Clause 4.2 of the Terms is the clause in the Agency Agreement which identifies the circumstances in which ‘Fees’ are payable. The chapeau of clause 4.2(a) contains the defined term ‘Client’ twice. Clause 4.2(a) is in the following terms-

“a. The Client agrees to pay to the Agent the Fees in accordance with the Agreement in the event that during the Term any one of the following occurs (regardless of who funds the purchase of, finds or introduces the Property). The Client:
i. enters into a contract for the purchase of…any property…;
ii. procures another person or entity to enter into a contract for the purchase of…any property

iii….
iv. by any other means whatsoever becomes the legal and/or beneficial owner of any property.”

Contractual construction principles

An important issue in these proceedings is the proper construction of clause 4.2(a) of the Agency Agreement.
It is uncontroversial that Australian law applies an objective approach to the construction of contracts. The law does not seek to ascertain the parties’ subjective understanding of a contractual obligation, but what the contractual words convey to a reasonable person in the position of the parties in the circumstances in which the contract is entered into. Evidence of the parties’ subjective intention is usually inadmissible on the question of construction.
In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, the High Court stated the applicable principle as follows (at [40], citations omitted):

“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction”.

Further, the High Court summarised the core principles of the construction of commercial contracts as follows in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35]:

“The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean...[that] require[s] consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract [which] is facilitated by an understanding ‘of the genesis of the transaction, the background, the context and the market in which the parties are operating’…unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption that the parties intended to produce a commercial result. A commercial contract is to be construed so as to avoid it ‘making commercial nonsense or working commercial inconvenience’.”

In resolving ambiguity, a court will seek to adopt a commonsense approach that is in accordance with the apparent purpose of the contract. However, such an approach has no place where there is no ambiguity, and the court will not rewrite the terms of a contract to relieve against harsh or unreasonable terms. As the High Court recently observed in WorkPac Pty Ltd v Rossato (2021) 271 CLR 456 (at [63] per Kiefel CJ, Keane, Gordon, Edelman, Steward and Gleeson JJ, citations omitted):

“… It is no part of the judicial function in relation to the construction of contracts to strain language and legal concepts in order to moderate a perceived unfairness resulting from a disparity in bargaining power between the parties so as to adjust their bargain. It has rightly been said that it is not a legitimate role for a court to force upon the words of the parties’ bargain “a meaning which they cannot fairly bear [to] substitute for the bargain actually made one which the court believes could better have been made”. Even the recognised doctrines of unconscionability or undue influence do not support such a course …”

Orthodox principles of contractual construction will permit a court to add, omit or correct words in an otherwise unambiguous contract where it is clearly necessary to avoid absurdity: Fitzgerald v Masters (1956) 95 CLR 420 at 426 (Dixon CJ and Fitzgerald J) but only where the intended meaning can be discerned. As stated by Leeming JA (with whom Bell CJ and Ward P agreed) in QBT Pty Ltd v Wilson [2024] NSWCA 114 at [74]:

“If it is unclear how the absurdity is to be resolved, then the principles of construction where there is an obvious error are not available to authorise a departure from the ordinary literal meaning”.

Further, if a term is unreasonable or unfair that does not mean that it is absurd, and the fact that the plain meaning of a contractual term might appear as such is not a sufficient basis for the court to depart from the plain meaning: Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 at [27]-[38] (Basten JA, Giles and Tobias JJA agreeing).

Execution and Uncertainty

Mr Bo submits that the Agency Agreement was not properly executed and is void for uncertainty. Both arguments are focused on the meaning of the word ‘Client’ in the agreement. The arguments may be dealt with together.
In short, Mr Bo submits that the term ‘Client’ and its use in the Agency Agreement is uncertain because he says:

There is a double definition (pages 1-3 compared to clause 1.1(f));

There is an indeterminate breadth of the definition of the term in clause 1.1(f);

The fact that the definitions in clause 1.1 do not apply if a contrary intention appears means that the term ‘Client’ must be separately judged against the apparent context;

The definition of ‘Client’ results in an indeterminate nature of obligations on Mr Bo, and indeterminate payment triggers upon which Mr Bo is obliged to pay Fees pursuant to clause 4.2

Legal Principles

A provision of a document is uncertain when, having regard to the applicable principles of construction, the language is incapable of any precise and definite meaning. As Mr Bo accepts, a finding that a contract is void for uncertainty amounts to a finding that the language is so obscure or imprecise that it does not reveal any particular contractual intention [1] . There are two main reasons a provision will be uncertain. The first is where the language used is devoid of any meaning. The second, is where a provision is said to be open to multiple meanings such that it is impossible for the court, applying the relevant principles of construction, to select which meaning is the applicable one: see Herzfeld and Prince, Interpretation (3rd ed, 2024, Thomson Reuters) at [19.130].
1. See Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at [53]; Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2021] SASCA 8 at [18].
Courts do not lightly find uncertainty and strive to avoid the conclusion that a provision is uncertain. Ambiguity is not uncertainty, and apparent uncertainty will commonly be resolved by the process of construction.
If uncertainty exists, the issue is whether the uncertain provision can be severed. If it can, it is simply struck out and ignored. If it cannot be severed, the entire agreement will be void for uncertainty. The test is whether the invalid promise is so material and important for a provision in the whole bargain that there should be inferred an intention not to make a contract without it.

Consideration

I reject Mr Bo’s submission that the Agency Agreement is void for uncertainty. Dealing with each of Mr Bo’s submissions in turn:

there is no double definition of the term ‘Client’. The definition is in clause 1.1. Pages 1 to 3 of the Agency Agreement are not separate and distinct to the Terms of the Agency Agreement. The Agency Agreement must be read as a whole, and the definitions clause determines the meaning of the terms that are defined. Clause 1.1 defines ‘Client’, absent contrary intention, as including the party described as ‘Client’ in Part 1. Accordingly, given that inclusion, it could hardly be said that the reference of a party as ‘Client’ in Part 1 contradicts the definition in clause 1.1;

There is no indeterminate breadth of the definition in clause 1.1(f). The clause is clear even if wide in reach. The definition refers to internal definitions which are themselves defined in clear terms. Certain of those definitions in turn refer to provisions of the Corporations Act. No submission was made that the Corporations provisions referred to are themselves incapable of application or understanding. The fact that the definition may require detailed analysis of facts to determine whether any particular fact situation falls within the definition or not, does not render the definition uncertain. Nor is it uncertain because it may operate widely, or even extremely widely;

The fact that each clause in which the term ‘Client’ is used may be the subject of a contractual construction exercise does not suggest, of itself, uncertainty in the relevant sense;

For the same reasons referred to in (a) to (c) above, the use of term ‘Client’ does not result in indeterminate obligations or payment triggers. That the contract may require a process of contractual construction in relation to each clause in which the term ‘Client’ is used does not cause those clauses to be indeterminate.

Finally, it cannot be said, in my view, that through the application of ordinary rules of contractual construction, the language used is so obscure and imprecise that no contractual intention can be discerned because of the way ‘Client’ is used and defined in the Agency Agreement.

There is no merit to Mr Bo’s ‘execution’ argument. The only parties to the agreement are Costi Cohen and Mr Bo. That Mr Bo is described as ‘Client’ in Part 1 of the Agency Agreement is consistent with the definition of ‘Client’ in clause 1.1(f). There is no basis to construe the agreement in a way that requires any person who fell within the definition of ‘Client’ in clause 1.1(f) to execute the agreement before it became binding on Costi Cohen and Mr Bo.

Construction and application of clause 4.2(a)

Parties’ Position on construction

The construction of clause 4.2(a) of the Agreement is important to several issues in these proceedings.
The first and primary question is the meaning to be given to the term ‘Client’ as used in the clause.
Costi Cohen submitted that where it first appears in clause 4.2(a), ‘Client’ means Mr Bo. That is, Costi Cohen must accept that a contrary intention appears from the use of the term ‘Client’ in the first sentence. Costi Cohen did not identify the basis for that contrary intention, nevertheless that was its position. Costi Cohen, however, says that when next appearing in clause 4.2(a), the term ‘Client’ has its defined meaning set out in clause 1.1.
Costi Cohen submitted that clause 4.2(a) operates such that Mr Bo agreed to pay the ‘Fees’ if, relevantly, he:

or an associated entity or affiliate, a successor or nominee enters into a contract (by a combination of clause 4.2(a)(i) and the definition of ‘Client’ in clause1.1(f));

procures another person or entity to enter into a contract (clause 4.2(a)(ii))

The substance of Costi Cohen’s submission in relation to the usage of the term ‘Client’ was that Mr Bo was the client, however “where he used a company, an agent or nominee to purchase the property, Mr Bo would be liable to pay commission”.
Mr Bo submitted, without prejudice to his defence of uncertainty, that if the contract is not void for uncertainty, then the term ‘Client’ when appearing in clause 4.2(a) is a reference only to Mr Bo and not the defined term set out in clause 1.1. Mr Bo submits that a contrary intention for the purposes of clause 1.1 appears because of three matters:

First, the description of Mr Bo alone as ‘Client’ on page 1 of the Agency Agreement;

Secondly, he submits that the first use of the term in clause 4.2(a) can only sensibly be a reference to Mr Bo as the person liable to pay commission and that, as a matter of construction, the same meaning should be given to the second use of the term in the same paragraph;

Thirdly, he submits that applying the defined term when ‘Client’ secondly appears would lead to such extended circumstances giving rise to an entitlement to commission, that such a construction would be absurd.

Consideration

Both parties accept that the first usage of the term ‘Client’ in clause 4.2(a) is a reference to Mr Bo alone. That is, both accept that a contrary intention appears in that usage. Unlike clause 3 of the Agency Agreement which draws a clear distinction between ‘Client’ and, in parenthesis, ‘Associate Entity and Affiliate’ and therefore provides a clear intention that the term client in that clause is not as defined in clause 1.1, the language of clause 4.2(a) does not, on its face, draw a clear distinction between Mr Bo and other persons falling within the defined term.
Nevertheless, as submitted by Mr Bo, it is objectively unlikely that the parties contemplated that clause 4.2(a) would impose a liability to pay Fees on anyone other than Mr Bo (being the contracting party). Accordingly, consistently with both parties’ position, in my view, on the proper construction of the agreement, the first usage of the term ‘Client’ is a reference to Mr Bo alone. That is, the first sentence of clause 4.2(a), by its very nature provides the relevant contrary intention.
The parties disagreed as to the proper construction of ‘Client’ when used a second time in clause 4.2(a).
Although Costi Cohen contends that the meaning in the second use is its defined meaning, its submission is not consistent in this regard. Costi Cohen’s written submissions, summarised above, applies the defined meaning to only 4.2(a)(i) but not 4.2(a)(ii). That is, Costi Cohen submits that the ‘sensible’ reading of the clause is that ‘Client’:

has its defined meaning when applied to clause 4.2(a)(i) such that entry into a contract for purchase by Mr Bo (or any one falling within the defined term) triggers the obligation to pay Fees;

means Mr Bo when applied to cl 4.2(a)(ii) such that the obligation is triggered if Mr Bo procures another person or entity to enter into a contract for purchase.

In oral submissions, Counsel for Costi Cohen appeared to suggest a possible wider submission in relation to (b) above. However, I consider that its submission as to how the clause operates is ultimately to be understood as it was framed in its written submissions.

However, the term ‘Client’ in its second use operates with respect to, and controls, each of clause 4.2(a)(i) to clause 4.2(a)(iv) and it is not reasonable to conclude that the intention of the parties, objectively determined, was to use the term differently as it applies to each sub-paragraph.
I accept the construction advanced by Mr Bo. I do not accept Mr Bo’s submission that a contrary intention appears merely because of the description of Mr Bo as ‘Client’ on page 1 of the Agency Agreement. However, I do accept that as a matter of construction, the term ‘Client’ in clause 4.2(a) ought to be given a consistent meaning. That is so for the following reasons:

It is unlikely that the intention of the parties was to use different meanings for the same term in circumstances where the term appears in the same chapeau of the clause. As noted above, Costi Cohen’s case was that when first appearing, ‘Client’ meant only Mr Bo;

The clause commences by providing that the ‘Client’ agrees to pay Fees if ‘one of the following occur…’. The subsequent use of the definite article in the next sentence indicates that the second reference to the ‘Client’ is a reference back to the ‘Client’ upon whom the obligation to pay Fees is placed;

Thirdly, as submitted by Mr Bo, if ‘Client’ had its defined meaning, then the circumstances upon which Mr Bo would be obliged to pay Fees would, on an objective basis, be unlikely to have been within the contemplation of the parties. For example, it would mean that pursuant to 4.2(a)(iii), if a Relative (which includes adoptive relative or a person’s spouse) of Mr Bo happened to purchase shares in a company which happened to purchase property which met any of the criterion in Part 4, Mr Bo would be obliged to pay Fees. That is unlikely to have been intended by the parties given the commercial purpose of Agency Agreement. It is one thing for the clause to capture the circumstance of Mr Bo purchasing such shares or procuring another to do so, it is another thing to operate so widely that it captures all persons and entities falling with the extended defined term.

Construing the clause objectively, I conclude that that the proper construction of clause 4.2(a) is that the word ‘Client’ in it is a reference only to Mr Bo.
Whilst such a construction might mean that a person in the position of Mr Bo could defeat the operation of clause 4.2(a)(i) by the use of a different purchasing entity (and thus might be seen as a reason for an alternative construction), clause 4.2(a)(ii)-(iv) provide protections to the Agent in such circumstances, whether those protections are complete or not. Ultimately, in my view, the construction advanced by Mr Bo, albeit without prejudice to his uncertainty defence, is to be preferred.

Did Mr Bo procure Boying to enter into a contract to purchase the Drummoyne property within the meaning of clause 4.2(a)(ii)?

It is common ground that the Drummoyne Property was not purchased by Mr Bo himself. Whether the purchase falls within clause 4.2(a) depends, on Costi Cohen’s case, on whether he procured Boying to enter into the contract to purchase the Drummoyne property.
The term ‘procure’ is not defined in the Agency Agreement. The term procure has been held to mean “to produce by endeavour, for example by asking or demanding” [2] . It has been said that it “must import effort, care, management or contrivance towards the obtaining of a desired end” [3] . In a statutory context it been said that “‘procuring’ means taking action to bring about the result in that there must be a causal connection between that action and the conduct impugned” [4] . The Macquarie Dictionary relevantly defines ‘procure’ as:

‘to obtain, or get by care, effort, or the use of special means;

‘to effect; cause; bring about, especially by.. indirect means’
2. Smejis v Matthews [2004] WASCA 158 at [37]
3. Allstate Life Insurance v Australia & New Zealand Banking Group Ltd (1995) 58 FCR 26
4. Australian Securities and Investments Commission v Somerville (2009) 77 NSWLR 110 at [41]

Even on Mr Bo’s case, until a few days before Boying made its offer to purchase the Drummoyne property, only Mr Bo gave active consideration to the possible purchase of the Drummoyne property. That purchase was proposed to be a purchase by Y&M. That company was a company in which both Mr Bo and Ms Ma each had an interest as shareholders. Yet it was only Mr Bo who was concerned with determining the price to be offered on behalf of that company. Ms Ma left that entirely to Mr Bo.
Mr Bo’s evidence was that he wished to spend up to $7.5 million in total on the purchase of the Drummoyne property including commission. A purchase of the property at $7.35 million (which was the price offered by Y&M) would have attracted a commission of $147,000 (excluding GST), which would result in a total outlay $7.497m.
Had the purchase price for the Drummoyne property, however, been say $7.5 million then clearly the total outlay would be well in excess of that amount once commission was included. Mr Bo accepted that he understood that if Y&M purchased the Drummoyne property he would be obliged to pay commission under the Agency Agreement.
I reject the evidence of Mr Bo and Ms Ma in relation to the purchase by Boying of the Drummoyne property. Ms Ma deferred to Mr Bo in relation to the price to be offered by Y&M, a company in which she was shareholder. As noted earlier, there is no evidence that she engaged in any analysis whatsoever in relation to the property other than a brief five-minute inspection in circumstances where she had no interest in purchasing the property. The correspondence between Mr Liu and the vendor's solicitor reflected a situation where the client remained the same, but the purchasing entity had varied from Y&M to Boying. As reflected earlier, contrary to Ms Ma’s evidence, Mr Bo was the principal contact and instructor to Mr Liu in relation to the purchase including giving him a direction to send the contract to purchase to “us” for signing.

There is no evidence before the Court of Ms Ma having purchased, before or after the Drummoyne property purchase, any property in Australia on her own account, or through a company in which she was sole shareholder. The evidence disclosed only that property had been purchased in Australia through the companies Y&M and FA-Futured, companies in which both Mr Bo and Ms Ma held shares. Mr Bo was the one who dealt with Costi Cohen in relation to the Drummoyne property; he was the one who had the interest in acquiring further commercial property in Australia, and intended to do so through Y&M.
I am comfortably able to infer, and I find, that Mr Bo procured Boying to enter into the contract to purchase the Drummoyne property. I find that, it was his effort and conduct that brought about the purchase, and he solicited the purchase by Boying. His conduct amounts to ‘procuring’ under any of the definitions referred to in paragraph 84 above. Although it is not necessary to find a specific motive for him doing so, I am comfortably able to infer, and I find, that he did so to keep the total outlay for the purchase at approximately $7.5 million by avoiding, in his mind, an obligation to pay commission to Costi Cohen. He clearly held the view that the Drummoyne property was a good investment, and he procured the entry by Boying into the contract for its purchase. The fact that he does not hold shares in Boying does not negate a finding that he procured its purchase by Boying.
In making this finding I take into account Mr Bo’s involvement with Mr Liu in relation to the entry into the contract by Boying to purchase the Drummoyne property.
In making my findings, I also have regard to my view of Mr Bo’s and Ms Ma’s evidence referred to in paragraphs 35 and 47 above. Mr Bo’s submissions referred to the abolition of the Married Women’s Property Act 1893 (NSW) and asserted that an implicit assumption in Costi Cohen’s case was that Ms Ma should be seen simply as an extension of her husband. My findings did not proceed upon any such assumption but are based on the matters I have identified in this judgment.
I find that for the purposes of clause 4.2(a) of the Agency Agreement, Mr Bo procured Boying to enter into the contract to purchase the Drummoyne property.

Did Costi Cohen perform its contractual obligation to entitle it to payment under clause 4.2

As described above, Part 4 of the agreement contained broad criteria for the property that was to be targeted by Costi Cohen. Part 5 (and Schedule 1) of the Agency Agreement sets out Costi Cohen’s services in relation to which it was appointed exclusive agent by clause 2. A fundamental service was to identify and recommend ‘properties’ to Mr Bo which met any of the criteria in Part 4. Clause 1.1(s) of the Agency Agreement defines ‘Property’ as any property which meets any of the criteria set out in Part 4 (or as varied). Under clause 4.2(a), the obligation to pay fees arises on the purchase of a property falling within the definition in 1.1(s). The Drummoyne property clearly met that description of being a commercial property in the Sydney metropolitan area. Mr Bo agreed it was suitable and therefore, whether it met the yield that was preferred or the lease term that was preferred, is not determinative. Those characteristics were merely preferred; however, they were not requirements. Even if they were requirements, by pursuing that purchase Mr Bo clearly varied the criteria in any event. Moreover, as noted, the property met at least one of the criteria, being a commercial property in the Sydney metropolitan area.
Accordingly given my findings in paragraph 93 and 94 above, subject to the defences to which I will turn, under the Agency Agreement Mr Bo is contractually obliged to pay Costi Cohen 2% (plus GST) of the purchase price paid by Boying for the purchase of the Drummoyne property.

Unfair Terms Defence – s.23 of the ACL

Section 23(1) of the ACL provides that a term of a consumer contract or small business contract is void if:

the term is unfair; and

the contract is a standard form contract.

Mr Bo alleges that the Agency Agreement was either a consumer contract or a small business contract. Costi Cohen, by its final submissions, accepts that the Agency Agreement is a small business contact.
Mr Bo alleges that Agency Contract is a standard form contract. Although that was not admitted on the pleadings, Costi Cohen made no submissions that the Agency Agreement was not a standard form contract. That, no doubt, was because the evidence of Mr Costi was that the Terms were a standard form used by Costi Cohen and had been prepared to be used as such by a lawyer for Costi Cohen. Section 27 of the ACL provides a rebuttable presumption that a contract is presumed to be a standard form contract unless another party to the proceedings establishes otherwise. Costi Cohen, neither in evidence nor in argument sought to establish otherwise. Accordingly, the presumption operates.
As a result, the Agency Agreement is an agreement which engages s.23(1) of the ACL. I do not understand that to have been seriously in dispute. Section 23(2) provides that the contract continues to bind the parties if it is capable of operating without the unfair term.
Mr Bo has the onus of establishing the existence of an unfair term or terms. Section 24 of the ACL requires Mr Bo to establish that the alleged unfair term:

would cause a significant imbalance in the parties’ rights and obligations arising under the contract; and

is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and

would cause detriment (whether financial or otherwise) to a party if it were to be applied or relied on.

Section 24(2) provides that the Court must, in evaluating whether a term is unfair, have regard to the following:

The extent to which the term is transparent;

The contract as a whole.

Section 24(3) provides that a term is transparent if it satisfies certain identified criteria.
Section 24(4) provides that:

“…a term of a contract is presumed not to be reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise”

Mr Bo, in his defence, asserts that the following were unfair terms in the Agency Agreement:

The definition of ‘Client’ in clause 1.1(f) and ‘Affiliate’ in clause 1.1(a);

Clause 2(c) which provides for a minimum term of six months;

Clause 3(a) by reason of the use of the term ‘Client’ as defined in clause 1.1(f);

Clause 4.2 by its use of the term ‘Client’ and its reference to “any property” together with the obligation upon the

Client” to pay Fees if he purchased a property not introduced by Costi Cohen under the contract;

Specifically, clause 4.2(a)(iv) (which I will set out below);

Clause 13 which requires the ‘Client’ to indemnity Costi Cohen in certain respects (“indemnity clause”);

Clause 20(a) by which the ‘Client’ acknowledges that the agreement was negotiable, and the client had the opportunity to obtain independent legal advice (“the acknowledgement clause”).

Costi Cohen’s case in contract relies only upon two provisions as entitling it to the monetary relief sought. Clause 4, and, in particular clause, 4.2 – being the Fee clause; and clause 13, being the indemnity clause. Also relevant to the proceedings is clause 20(a), being the acknowledgment clause.
Whether clause 3(a) is, or is not, an unfair term within the meaning of section 23 of the ACL is not relevant to Costi Cohen’s claim. That is, there was no submission by either party that if the Court were to find that clause 3(a) is void, the contract was not capable of operating without the term. It is not a term relied on by either party to the proceedings. Accordingly, it is unnecessary to determine whether clause 3(a) is ‘unfair’.
Mr Bo’s claim that the definition clause 1.1 as it applies to the term ‘Client’ and ‘Affiliate’ is unfair must be rejected. Clause 1.1 is purely a clause defining terms for the purposes of the agreement. In and of itself, it imposes no obligations or rights on the parties. It may well be that when used in a particular term, these definitions may render that term unfair, however, that will depend on the proper construction of the relevant term and the application of s.23 to that term. Moreover, to the extent that the Amended Defence at paragraph 49(a)(v), items (3), (4), (6)-(8) refers to the use of the term ‘Client’ (as defined in clause 1.1(f)), they again are clauses in relation to which Costi Cohen places no reliance, and no party submitted that the Agreement could not operate even if those terms were found to be unfair and void. Accordingly, it is unnecessary to consider whether those terms are unfair within the meaning of s.23 of the ACL.
I turn now to consider Mr Bo’s claim that terms in clauses:

2(c);

4.2 (including 4.2(a)(iv));

13;

20(a)

are unfair within the meaning of s.23 of the ACL.

Principles

In Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377; (2016) ATPR 42-517 at [54], Gilmour J, without intending to be exhaustive, summarised the principles relevant to unfair term regimes as follows:

the underlying policy of unfair contract terms legislation respects true freedom of contract and seeks to prevent the abuse of standard form consumer contracts which, by definition, will not have been individually negotiated: Jetstar Airways Pty Ltd v Free [2008] VSC 539 at [112];

the requirement of a “significant imbalance” directs attention to the substantive unfairness of the contract: Director-General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [37];

it is useful to assess the impact of an impugned term on the parties’ rights and obligations by comparing the effect of the contract with the term and the effect it would have without it: Director-General of Fair Trading v First National Bank plc at [54];

the “significant imbalance” requirement is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in its favour — this may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty: Director-General of Fair Trading v First National Bank at 494 [17] per Lord Bingham, applied in ACCC v ACN 117 372 915 Pty Ltd (in liq) (formerly Advanced Medical Institute Pty Ltd) [2015] FCA 368 at [950];

significant in this context means “significant in magnitude”, or “sufficiently large to be important”, “being a meaning not too distant from substantial”: Jetstar Airways Pty Ltd v Free at [104]–[105] per Cavanough J: Cf Director of Consumer Affairs Victoria v AAPT Ltd [2006] VCAT 1493 at [32]–[33];

the legislation proceeds on the assumption that some terms in consumer contracts, especially in standard form consumer contracts, may be inherently unfair, regardless of how comprehensively they might be drawn to the consumer’s attention: Jetstar Airways Pty Ltd v Free at [115];

in considering “the contract as a whole”, not each and every term of the contract is equally relevant, or necessarily relevant at all. The main requirement is to consider terms that might reasonably be seen as tending to counterbalance the term in question: Jetstar Airways Pty Ltd v Free at [128].

In Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204; (2015) 239 FCR 33 Edelman J noted that s 24 is an example of a legislative technique which creates broad evaluative criteria to be developed incrementally and that it is not possible to state a precise or universal test for its application (at [39]). His Honour approved the following approach concerning the construction of s 24 (at [43]):

“(a) for a term to be unfair it must satisfy the requirements of all of s 24(1)(a) to (c); (b) the onus is upon the applicant to prove the matters in s 24(1)(a) and s 24(1)(c) but it is upon the respondent in relation to s 24(1)(b); (c) s 24(2)(a) only requires the Court to consider transparency in relation to the particular term that is said to be unfair and only in relation to the matters concerning that term in s 24(1)(a) to (c); (d) similarly, the assessment of the contract as a whole in s 24(1)(c) only requires the Court to consider the contract as a whole in relation to the particular term that is said to be unfair and only in relation to the matters concerning that term in s 24(1)(a) to (c); (e) as the Explanatory Memorandum provided at [5.39], 'if a term is not transparent it does not mean that it is unfair and if a term is transparent it does not mean that it is not unfair'.”

The High Court confirmed in Karpikv Carnival PLC (2023) 415 ALR 491 at [32] that the transparency of a term may affect the evaluation of the satisfaction of each of the elements of the statutory definition of “unfair” and the requirement for transparency is not an independent and separate inquiry from whether a term is unfair pursuant to s.24(1).
Section 23 of the ACL does not create any discretionary power - it provides that a term of a relevant consumer contract is void if it is unfair. The term will be unfair if the three elements in s 24(1) are satisfied. Whether that is so is an objective question requiring the application of the specified criteria to the facts. Section 24(2) describes it as a determination. No order of the court is required for s 24(2) to have effect.

Clause 2(c)

Clause 2(c) of the Agency Agreement provides for a minimum term of six months. It provides that after the six month period, the Agreement remains enforceable until either Mr Bo purchases a property or until either party terminates the agreement by giving 30 days' notice in writing.
The first question is whether clause 2(c) causes a significant imbalance in the parties’ rights and obligations under the contract. If it does not, the term is not unfair within the meaning of s.24 of the ACL. In considering that question, it is necessary to consider the extent to which the clause is transparent, and it is necessary to consider the contract as a whole.
In my view, clause 2(c) does not cause a significant imbalance in the parties’ rights and obligations under the contract. The clause gives the same rights to each party. There is no imbalance arising from the fact that the contract continues to be enforceable until termination by one party (or the purchase of a property). The clause is in plain English and operates in a clear manner. I consider that the clause is transparent.
There is nothing in the balance of the contract that affects my conclusion in paragraph 115. There is no other term that alters the balance of rights and obligations created by clause 2(c).
Accordingly, I find that the defendant has not established that clause 2(c) of the Agency Agreement is an unfair term within the meaning of s.24 of the ACL.

Clause 4.2(a)

In so far as Mr Bo relies on the definition of ‘Client’ in clause 1.1(f) as a basis to assert that clause 4.2(a) is unfair, that must be rejected given that the proper construction of the term ‘Client’ in clause 4.2(a) is that it refers only to Mr Bo. Much of the defence in this regard in relation to the breadth and reach of clause 4.2 depended on the application of the definition in clause 1.1(f) of the term ‘Client’ which I have found does not apply to clause 4.2(a).
However, Mr Bo also asserts that clause 4.2(a) is unfair because it requires the payment of a Fee (a commission of 2% of the purchase price) in the circumstances set out in clause 4.2(a) even if the property purchased was introduced to Mr Bo by someone other than Costi Cohen.
As noted earlier, Clause 4.2(a) provides that:

“The Client agrees to pay…in the event that during the Term any one of the following occurs (regardless of who…finds or introduces the Property). The Client…”
(i) Enters into a contract for the purchase…of any property;
(ii) Procures another person…to enter into a contract for the purchase of any property;…” (emphasis added)

In so far as 4.2(a)(i), (ii) and (iv) refer to “any property”, in my view the proper construction of those clauses is that the reference is a reference back to the defined term ‘Property’. That is so because the chapeau contains the defined term which, as a matter of consistency in construction, controls the term ‘property’ when it is subsequently used in the clause. To construe the term without reference back to the defined term as used in the chapeau would produce entirely absurd results – for example “any property” would not be limited to real estate and would include any chattel completely unrelated to the contract. The parties cannot be presumed to have had such an intention;
Under the agreement, as noted earlier, the defined term ‘Property’ means “any property which meets any of the criteria set out in Part 4 of the Particulars (or as varied)”. The criteria in Part 4 of the Agreement is expressed in quite general terms (see paragraph 50 above)
Accordingly, the effect of clause 4.2(a)(i) and (ii) is that if Mr Bo, or any person or entity he procures to do so, enters into a contract in relation to property meeting any of the criteria set out in Part 4, Mr Bo must pay a fee of 2% plus GST of the purchase price to Costi Cohen. That is so whether Costi Cohen had any involvement whatsoever in sourcing, finding, or introducing the property to Mr Bo.
The first question is whether, clause 4.2(a), by reason of its application whether Costi Cohen found or introduced the relevant purchased property, causes a significant imbalance in the parties’ rights and obligations under the contract.
As noted above, such a significant imbalance occurs if the relevant term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in the supplier’s favour — this may be by granting to the supplier a beneficial option or discretion or power, or by imposing on the consumer a disadvantageous burden or risk or duty. In my view, clause 4.2 imposes a significant burden upon Mr Bo, namely the burden paying a 2% commission to Costi Cohen, a buyer’s agent, even in circumstances where the sourcing of the relevant purchased property had nothing to do with the agent. The clause heavily favours Costi Cohen’s right to a fee regardless of their performance, or connection, in sourcing the purchased property.
In terms of transparency, I consider that the term is transparent. Whilst it appears as part of the standard terms and conditions, the words “regardless of who funds the purchase of, finds or introduces the Property” are in plain English and can be readily understood.
Nevertheless, I conclude that Mr Bo has satisfied s24(1)(a) of the ACL.
With respect to section 24(1)(b) of the ACL, as noted above, s.24(4) provides a presumption that a term is presumed not to be reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. Costi Cohen neither by evidence nor any developed argument sought to advance a basis as to why it was reasonably necessary in order to protect the legitimate interests of Costi Cohen to have a term such as clause 4.2(a) entitling it to a commission even when it was not the effective source of the property purchased. Costi Cohen’s main submissions in relation to clause 4.2(a) was to support the need for clause 4.2(a) to capture purchases by nominee companies or entities or persons who Mr Bo procured to purchase the property - on a number of occasions, Costi Cohen submitted that “this very case…” showed the need for such a requirement. However, Costi Cohen did not prove why it was reasonably necessary for it to be entitled to a commission when it was not the effective source of the property purchased. Particularly is this so when Costi Cohen was paid a retainer of $5,000 plus GST in any event.

Mr Bo has not persuaded me that he would not have entered into the Agency Agreement if the terms of clause 4.2(a) had been specifically drawn to his attention. I take into account in making this finding my view about Mr Bo’s evidence set out in paragraph 35 above.

Failures to explain the agreement and other matters raised by Mr Bo

Mr Bo alleges that Costi Cohen did not:

explain clauses 3(a), 13, 20(a) of the agreement nor the ‘Acknowledgment’ on page 3 of the agreement;

explain that the agreement contained substantive terms beyond what was said by Mr Harkins;

ask, suggest or give an opportunity to Mr Bo to seek independent legal advice or check that he understood all of the terms;

provide Mr Bo an opportunity to negotiate the terms of the agreement.

I accept that Costi Cohen did not explain the clauses referred to above to Mr Bo nor did it suggest that he obtain independent legal advice. I reject the allegation that Mr Bo did not have an opportunity to seek independent legal advice. I have already rejected any suggestion that Costi Cohen applied any pressure, time or otherwise, on Mr Bo to sign the agreement. Mr Bo had the opportunity, if he wished to avail himself of it, to obtain whatever advice he wished. Costi Cohen did not ask him, or suggest to him, that he sign it quickly and, on the train, – they were decisions Mr Bo made himself. Further, whether the terms of the agreement were capable of negotiation is not of significance with respect to the s.18 ACL claim because the terms complained of where part of the standard terms of Costi Cohen and there is no evidence that Mr Bo ever sought to negotiate those terms. He did seek to negotiate the rate of commission, but not the terms he now complains about – he chose not to read them.
Silence may amount to misleading or deceptive conduct in a variety of circumstances. Those circumstances are many and various. Courts have observed that unless the circumstances give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could amount to misleading conduct: Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] FCA 400; (1989) ATPR 46-054 (French J) approved by the Full Federal Court in Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203.
The essential question is whether, in all of the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357; 270 ALR 204; 84 ALJR 644 (French CJ and Kiefel J); Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608; (1993) ATPR 41-203; Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77; 12 FCR 477; (1986) ATPR (Digest) 46-010.
As a general proposition, s 18 of the ACL does not require a party to commercial negotiations to volunteer information which will assist the decision-making of the other party. It does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard of another party, of equal bargaining power and competence, for its own interests: Miller & Associates Insurance Broking Pty Ltd v BMW [2010] 420 HC 1.
Although I have dealt with the alleged representations separately to determine whether the representations themselves were misleading and deceptive and whether Mr Bo has established that he was induced to enter the agreement by reason of those representations, I must, however, consider whether or not Costi Cohen’s conduct, as a whole, including the alleged matters set out in paragraph 167 above, was misleading and deceptive. That conduct includes:

The statements made by Mr Harkins in the circumstances in which they were made;

The provision of the Agency Agreement to Mr Bo;

The matters alleged in paragraph 167 above.

Turning to the specific clauses referred to by Mr Bo in this regard:

Clause 3(a) requires Mr Bo to procure his ‘Associate Entity’ and his ‘Affiliates’ (as those terms are defined in the agreement) to, relevantly, co-operate with Costi Cohen, obtain independent advice in relation to the purchase of Property (as defined) and not to appoint another agent for the purpose of purchasing a property;

Clause 13 is an indemnity clause by which the ‘Client’ indemnifies Costi Cohen for liabilities and costs arising or in any way connected with a breach by Mr Bo of the agreement;

Clause 20(a) contains an acknowledgement by the ‘Client’ that the terms of the agreement are negotiable, that changes need to be in writing, and an opportunity existed to obtain independent legal advice.

First, I have concluded that the term ‘Client’ in clause 13 and 20(a) means Mr Bo alone. He is the contracting party and only he can contractually give the indemnity in clause 13. Further, given he is the person who executed the agreement, the acknowledgment in clause 20(a) is directed, clearly, to him and not all persons falling within the definition of ‘Client’ in clause 1.1(f). In my view, each clause exposes the contrary intention required in clause 1.1.
Mr Bo does not rely merely on the alleged failure to explain. Rather, he relies on the failure to explain in the context of the prior statements of Mr Harkins. Nevertheless, it is relevant to examine whether the circumstances give rise to the reasonable expectation that Costi Cohen would have told Mr Bo that the terms of the agreement “contained substantive terms regarding their agreement beyond that which they had discussed” (paragraph 56(a)(ix) of the Amended Defence).
In my view, the answer to that question is no. That is because:

The discussions with Mr Harkins were in the form of introductory discussions about the services Costi Cohen could provide and the fee structure it would charge;

It was not reasonable for Mr Bo to think that, based on those discussions, Mr Harkins was describing all material terms of the agreement, including the all the ways in which and the extent to which, Costi Cohen would charge fees;

Mr Bo presented to Costi Cohen, prior to provision of the agreement, as an experienced commercial property investor of properties of significant value;

There was no reason for Costi Cohen, when delivering the agreement, to think that Mr Bo would not read the agreement, nor obtain legal advice on the agreement before signing it;

The fact that Mr Bo resided in China and the fact that English was not his first language does not alter the position because there were several dealings with Costi Cohen before the agreement was provided to him. All those dealings, both written and oral were in English. During October and November 2023, but prior to provision of the agreement, Costi Cohen sent, or in one case was copied into an email sent by Knight Frank, several emails, to Mr Bo, some of which included details of potential properties of interest including information memoranda. All of this was in English. Mr Bo sent two emails: one seeking provision of information memoranda on two properties; the other thanking Costi Cohen for the provision of information. The email exchanges also refer to oral discussions clearly related to purchase of property - all commercial properties of significant value.

In my view, considering the context of the discussions with Mr Harkins and Costi Cohen’s provision of the Agency Agreement to Mr Bo, it was not reasonable for Mr Bo to expect that the other contracting party would explain the terms of the agreement to him. In my view, having regard to the totality of the conduct of Costi Cohen towards Mr Bo, Mr Bo has a failed to establish that that conduct was misleading and deceptive or likely to mislead and deceive within the meaning of s.18 of the ACL.
Further, and in any event, I do not accept Mr Bo’s case that he would not have entered into the agreement had he known of clause 3(a), 13 and 20(a). Again, his evidence in this regard is at a level of generality that does not persuade me as to the course he would have taken. There is no explanation as to why, in his circumstances, clause 3(a), or clause13 (being triggered only on a breach by him of the agreement) would have been a concern to him. Similarly, I am not persuaded that clause 20(a) would have been any concern to him. The fact is he did have an opportunity to obtain legal advice. As to whether the agreement was negotiable, the evidence of Mr Costi is that Costi Cohen’s fees are negotiable – with respect to Mr Bo, Costi Cohen held firm on its fees. Further, in making this finding, I take into account my view about Mr Bo’s evidence set out in paragraph 35 above.
For the above reasons, I conclude that Mr Bo has failed to establish that Costi Cohen contravened s.18 of the ACL.

Did Costi Cohen engage in unconscionable conduct

Mr Bo alleges in his defence and cross claim that Costi Cohen engaged in unconscionable conduct
Section 21(1) of the ACL relevantly provides that a person must not, in connection with the supply or possible supply of services to a person, engage in conduct that is, in all the circumstances, unconscionable. Section 21 is not limited by the unwritten law relating to unconscionable conduct. Section 22 of the ACL sets out several matters to which the court may have regard in the application of s.21. The principles to be applied were the subject of an extensive summary in Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (2021) FCA 347. I do not repeat those paragraphs here, but note that the moral or normative standard of unconscionability is higher than unfairness or unjustness and the use of the choice of the word by parliament “serves to signify the gravity of the conduct necessary to be found by a court in order to be satisfied of a breach of that standard”: Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 ay [88].
Mr Bo relies on the following matters with respect to his allegation that Costi Cohen’s conduct was unconscionable. Mr Bo says:

that Costi Cohen had a stronger bargaining position and prepared the Agency Agreement. It was far more familiar with the legal system and the buyer’s agent process;

that the Agency Agreement required Mr Bo to comply with conditions not reasonably necessary for the protection of the legitimate interests of the supplier. Mr Bo relies on the breadth of clause 4.2 in this regard amongst other “absurdly broad provisions”;

that he did not understand the documents owing to a combination of lack of legal knowledge, language barrier, eye condition and the lack of proper explanation from Costi Cohen;

that Costi Cohen engaged in unfair tactics or misleading deceptive conduct. Mr Bo claims Mr Harkins positively misled him;

all of the above occurred in circumstances where Mr Harkins knew Mr Bo lived overseas and had no idea about buyer’s agents.

I reject Mr Bo’s claim that Costi Cohen engaged in unconscionable conduct. Dealing with Mr Bo’s arguments in turn:

I accept that Costi Cohen had a stronger bargaining position because it had standard terms and conditions which it was unlikely to vary in a material way. There is no evidence that Costi Cohen had greater familiarity with the Australian legal system than Mr Bo. True it is that Costi Cohen is resident in Australia and it can be inferred has some understanding of legal matters concerning property transactions given its role as a buyer’s agent. However, Mr Bo was experienced in the purchase of commercial property in Australia prior to dealing with Costi Cohen. He was experienced in obtaining the services of advisers including accountants and solicitors as required. He was familiar with the concepts of personal guarantees, caveatable interests, and stamp duty ; he understood the nature of leases. He was shown to pursue his legal rights in Australia against another person with, he says, the assistance of a solicitor;

with respect to the Agency Agreement, whether or not it imposed conditions that were not required for the legitimate interests of Costi Cohen, Mr Bo has not established that Costi Cohen has sought to rely on any clause of the Agency Agreement in unfair or unconscionable manner. As I have concluded earlier, clause 4.2(a) only obliges Mr Bo as the client to pay a commission if one of the circumstances occurs. Regardless of the breadth of clause 4.2(a), in this case there can be no dispute that Costi Cohen was the finder of the Drummoyne property for Mr Bo and I have found that Mr Bo procured Boying to enter a contract for its purchase;

I do not accept that Mr Bo did not understand the agreement. He didn’t read the agreement on his own evidence other than reviewing the first three pages. I do not accept that any pressure was put on Mr Bo, whether by way of time pressure or any other manner, for him to execute the Agency Agreement. It was entirely a choice of Mr Bo to sign the agreement on his mobile phone while sitting on a train. As noted above he was experienced at consulting professional advisers. Costi Cohen provided the agreement by way of email. At no stage did Mr Bo ask Costi Cohen after receipt of the document for any explanation of any of the terms.

It is true, as I have identified above, that Mr Harkins told Mr Bo that the term of the agreement was six months but did not mention that it was a minimum of six months. He also told Mr Bo that he would have to pay commission if he purchased a property but did not explain all the circumstances which Mr Bo would be obliged to pay commission set out in clause 4.2(a). However, Costi Cohen provided the Agency Agreement to Mr Bo. The agreement at Part Six, expressly described six months as a minimum term. Mr Bo said he looked at the first three pages. The minimum term clause was not hidden and was clearly apparent on the face of the document. With respect to clause 4.2(a), had Mr Bo read it, it was clear on its face that he would be obliged to pay a commission if he entered into a contract for the purchase of any property meeting the description in Part 4 or if he procured another person or entity to enter into such a contract. Clause 4.2(iii) and (iv), which deal with other circumstances in which fees may be payable are not, and have not, been relied upon by Costi Cohen;

I do not regard the dealings between Costi Cohen and Mr Bo as reflecting any unfair tactics engaged in by Costi Cohen. In summary there were initial conversations between Mr Harkins and Mr Bo during which Mr Harkins provided a broad summary of Costi Cohen’s fees, and the services it could provide, and those matters were more fully set out in the Agency Agreement which Mr Bo was freely able to review and consider at his leisure. There is no evidence that Costi Cohen knew or ought to have known about Mr Bo’s eye condition.

In considering this question, I note that s.21(4)(c) of the ACL provides that in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of the terms of the contract, and the manner in which and the extent to which the contract is carried out and is not limited to consideration of the circumstances relating to the formation of the contract. In my view the manner in which, and the extent to which, the contract was carried out was that Costi Cohen provided Mr Bo a service of locating commercial property for his consideration. Costi Cohen carried out that work and sourced the Drummoyne property. Mr Bo procured Boying to acquire the property found by Costi Cohen. Costi Cohen did not rely on various clauses identified by Mr Bo as having absurdly broad operation nor did it rely on the aspect of clause 4.2(a) which I have found rendered the clause unfair.
Mr Bo has failed to establish that Costi Cohen engaged in unconscionable conduct.

Mr Bo’s claim under the Contracts Review Act

Section 7 of the Contract Review Act provides that where the court finds a contract or a provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made the court may, if it considers it just to do so, and for the purpose of avoiding as far as practical an unjust consequence or result, do any one or more of the following:

decide to refuse to enforce any or all of the provisions of the contract;

make an order declaring the contract void, in whole or in part;

make an order varying, in whole or in part, any provision of the contract.

Section 9 of the act sets out the circumstances that the court is obliged to have regard to in the application of s7. In Kowalczuk v Aecom Finance Pty Ltd (2008) 77 NSWLR 205 [at 86-87] the Court:

observed that a contract could be unjust due to substantive injustice (because of its terms, consequences or effects) or because of procedural injustice (by reason of the unfairness of the methods used to make it); and

further noted that there were two distinct steps involved in the application of the Contracts Review Act, the first being to determine whether the contract was unjust in the circumstances in which it was made, having regard to the factors referred to in section 9 of the act, and involving a broadly based value judgement, and the second being whether, and if so what relief should be granted.

Mr Bo relied upon the same matters for his Contracts Review Act defence and cross claim as he did on his unconscionability claim.
I have earlier found that clause 4.2(a) was an unfair term insofar as it required the payment of a fee on the purchase of a relevant property whether or not Costi Cohen had anything to do with the finding of the property. However, for the same reasons referred to above with respect to Mr Bo’s unconscionability defence, Mr Bo has failed to satisfy the court that the Agency Agreement as a whole is unjust in the circumstances relating to the contract at the time it was made. With respect to the unfair term, even if it is also unjust within the meaning of s.7 of the Contracts Review Act, I would refuse the relief sought by Mr Bo because the element of unfairness that I have found bears no relevance to Costi Cohen’s claim under the Agency Agreement because there is no dispute that Costi Cohen sourced the Drummoyne property. That is, the element of unfairness in clause 4.2 described above simply does not arise in this case. Accordingly, there is no proper basis for relief of the type referred to in paragraph 186 above.
To the extent that Mr Bo relies on the nature of a specific clause of the Agency Agreement for his unconscionability claim, I repeat my findings in relation to those matters set out above. Even if any of those clauses relied upon could be seen as rendering the Agency Agreement as unjust, I would refuse the relief sought by Mr Bo under the Contracts Review Act because I am unpersuaded that Costi Cohen has, in its application of the agreement with respect to Mr Bo, relied on it in an unjust manner.
With respect to the matters set out in s.9 of the Contracts Review Act, I have taken those matters into account and relied on my findings which touch upon them. For example, I have in this judgment made findings concerning the nature of the parties involved, whether the Agency Agreement was negotiable, the nature of the Agency Agreement, the consequence of the various terms relied upon by Mr Bo in his defence, the relative bargaining power of the parties, the ability of Mr Bo to protect himself ( I have referred to his use of advisors), and whether unfair pressure or tactics were use by Costi Cohen.
I conclude that Mr Bo has failed to establish an entitlement to relief under the Contracts Review Act.

Plaintiff’s alternate claims

Subject to its reliance on conventional estoppel, the plaintiff has failed in its claim for relief pursuant to the Agency Agreement. Accordingly, it is necessary to address the plaintiff’s reliance on conventional estoppel.

If the plaintiff’s conventional estoppel allegation fails, it will then be necessary to address its alternative claim in quantum meruit.

Conventional Estoppel

Costi Cohen pleaded an estoppel by convention in its Reply. However, the way the estoppel by convention was framed in its final written submissions was different to that set out in the Reply. Nevertheless, during final oral submissions, Counsel for Costi Cohen took the Court to paragraphs 15 to 19 of the Reply and said that they effectively set out the basis for the estoppel. Accordingly, I proceed on the basis that Costi Cohen’s allegations in this regard are as framed in its Reply.
Paragraph 15 of the Reply sets out the alleged mutual assumption. The assumption alleged is that:

Costi Cohen would search for relevant properties;

Costi Cohen would be entitled to be paid remuneration for the search;

Upon finding the appropriate property, being that which Mr Bo (or his nominee) purchased, or that he procured or caused to be purchased, the remuneration would be due and payable;

That the Agency Agreement was valid and legally enforceable;

That the Agency Agreement governed the Agency Relationship.

A number of authorities have identified the nature, and requirements for the establishment of an estoppel by convention. In particular:

High Court in Con-Stan Industries ofAustralia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 244 stated:
“Estoppel by convention is a form of estoppel founded not on a representation of fact made by a representor and acted on by a representee to his detriment, but on the conduct of relations between the parties on the basis of an agreed or assumed state of facts, which both will be estopped from denying”;

In Moratic Pty Ltd v Gordon [2007] NSWSC 5 at [32], Brereton J noted that:
“…in common law conventional estoppel, it is necessary for the plaintiff to establish (1) that it has adopted an assumption as to the terms of its legal relationship with the defendant: (2) that the defendant has adopted the same assumption; that both parties have conducted their relationship on the basis of that mutual assumption; (4) that each party knew of intended that the other act on that basis; and (5) that departure from the assumption will occasion detriment to the plaintiff…” [5] ;

It has been held that the acts or conduct relied upon must point plainly, if not unequivocally, to the assumption put forward as the conventional basis of relations [6]
5. See also Rydelar Pty v Euphoric Pty ltd (2007) 69 NSWLR 603 at [200]; TMA Australia Pty Ltd v Indect Electronics [2015] NSWCA 343 at [115].
6. Queensland Independent Wholesalers Ltd v Coutts Townsville Pty ltd [1989] 2 QD R 40.

The difficulty with the estoppel by convention relied upon by Costi Cohen is that framework in sub-paragraphs (a)-(c) in paragraph 15 of the Reply does not properly state the breadth of clause 4.2(a). It can be inferred that Costi Cohen, the proponent of the Agency Agreement assumed that the agreement was valid and legally binding. The agreement was prepared by a lawyer, and was the standard agreement used by it. However, it can equally be inferred that Costi Cohen assumed it would be entitled to a commission in any of the circumstances set out in clause 4.2(a), including whether or not it found the property purchased. Such an assumption is far broader than that set out in sub-paragraph (c) which is the assumption said to have existed in relation to Costi Cohen’s entitlement to fees. Further, it can be inferred that Costi Cohen assumed it would receive a commission in any of the circumstances set out in (i)-(iv) of clause 4.2(a). Again, those circumstances are broader than sub-paragraph (c), which is only a sub-set of the circumstances in clause 4.2(a).
My reading of the assumption set out in paragraph 15 of the Reply is that sub-paragraphs (d) and (e) do not broaden the assumption in (a)-(c) which deal with the circumstances upon which Costi Cohen would be entitled to a commission. There is no evidence that Costi Cohen assumed that its rights to a commission were limited in the way set out in (a)-(c), in contradistinction to its rights as set out in the Agency Agreement, and in particular clause 4.2(a) (leaving aside the conclusion I have reached on clause 4.2(a) as an unfair term).
Moreover, there is not a sufficient evidentiary basis to find that Mr Bo carried an assumption that the Agency Agreement was valid and binding in all respects. The fact that he signed the agreement is an insufficient foundation for such a finding.
Accordingly, Costi Cohen has failed to establish the mutual assumption pleaded because it has not proved that it proceeded on that assumption.

Costi Cohen’s Claim in Quantum Meruit

In the alternative to Costi Cohen’s contract claim, it claims a reasonable amount for the services it provided to Mr Bo on a quantum meruit.
I have found that clause 4.2(a) is void under s.23 of the ACL. Clause 4.2(a) regulates and identifies the circumstances in which Costi Cohen is entitled to the percentage fee set out in Part 7 of the Agency Agreement. Part 7 is an essential aspect of the bargain between Mr Bo and Costi Cohen, it being the agreed consideration, in terms of money, moving from Mr Bo. Mr Bo tried to negotiate a lower percentage fee to be charged by Costi Cohen but Costi Cohen refused. I have no hesitation in finding that Costi Cohen would not have entered the Agency Agreement in the absence of an agreement that Mr Bo pay a fee calculated by way of a percentage of the purchase price of a property.
Section 23(2) of the ACL provides that a contract continues to bind the parties if it is capable of operating without the unfair term. This section appears to bring into statutory form a principle of severance similar to that which applies when a term is void for uncertainty. It is not at all clear, however, that s.23(2) operates in an identical manner. What is meant by the words “capable of operating without the unfair term” is not clear. I was not referred to any authority on the operation of s.23(2) and my own research has not identified any detailed analysis of its application.
Neither party made any submission as to how s.23(2) of the ACL would operate if the Court was to find that clause 4.2(a) was void by reason of s.23(1). Certainly, no party submitted that if clause 4.2(a) was void, Part 7 of the Agency Agreement could and should be given meaning – that is, no party submitted that the words “Percentage of Purchase Price” could have contractual operation (whether by a process of construction or by way of implication) in the absence of clause 4.2(a).
I consider the better view is that if clause 4.2(a) is void, as I have concluded, the Agency Agreement could not continue to operate because a critical and foundational basis of the contract, namely the consideration moving from Mr Bo, is no longer enforceable. Whilst the $5000 (plus GST) retainer was paid, that amount was clearly not the consideration agreed to be provided if a sale eventuated. It was but a component of the consideration. I do not, however, need to express a concluded view about this, particularly in the absence of submissions by the parties specifically directed to that question.
Whether or not, the Agency Agreement is “capable of operating without the unfair term” within the meaning of s.23(2), Costi Cohen is entitled to bring a claim in quantum meruit. In Mann v Paterson Constructions Pty Ltd [7] , Keifel CJ, Bell and Keane JJ at [16] cited with approval the following statement: “…an essential step in considering a claim in quantum meruit…is to ask whether and how that claim fits with any particular contract the parties have made.” [8] . Their Honours concluded at [19] that “in circumstances where the respondent has enforceable contractual rights to money that has become due under the contract, there is no room for a right in the respondent to elect to claim a reasonable remuneration unconstrained by the contract between the parties.”. Similarly, in Mann, Gageler J (as his Honour then was) cited with approval the following statement: “[n]o action can be brought for restitution while an inconsistent contractual promise subsists between the parties in relation to the subject matter of the claim”. [9]
7. (2019) 267 CLR 560
8. Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at [79]
9. See Mann at [64]; see Timis v Mina [1999] NSWCA 140 at [54]
Here, by reason of s.23 of the ACL, clause 4.2(a) of the Agency Agreement is void and Costi Cohen has no accrued right, under the Agency Agreement, to claim the money it seeks in these proceedings by way of quantum meruit. In those circumstances, in my view, the claim “fits” with the Agency Agreement (assuming it continued to operate), and there is no inconsistent contractual promise that subsists in relation to Costi Cohen’s claim. Accordingly, in my view Costi Cohen’s quantum meruit claim should be understood as arising in the context of there being no enforceable contractual claim by Costi Cohen for the relief sought in these proceedings.
The evidence discloses that Costi Cohen provided valuable professional services to Mr Bo, being market analysis, negotiation facilitation, and sourcing properties. I find that the services were requested by, provided to and accepted by Mr Bo. On no basis could it be said that Mr Bo considered that Costi Cohen would carry out those services for no reward, or for only the $5000 (plus GST) retainer. Ultimately it was Costi Cohen’s work that resulted in the identification of the Drummoyne property which I have found Mr Bo procured Boying to purchase.
Costi Cohen asserts that the quantum meruit valuation should reflect the standard commercial value of exclusive buyers’ agency services for transactions of this magnitude. Costi Cohen asserts that the industry-standard commission rate for commercial property agency services of this nature is 2%. However, Costi Cohen led no evidence that that was the industry standard commission rate. It is what Costi Cohen charged for its services.
Costi Cohen relies on Roude v Helwani [2020] NSWCA 310 for the proposition that a court is not precluded in the absence of evidence of a market rate or an objective standard of reasonableness from making an assessment as to whether the evidence adduced establishes the reasonableness of the amount sought. Costi Cohen points out that at no stage was it put to Costi Cohen’s witnesses in cross examination that the fees charged were unreasonable.
Mr Bo for his part advances the following. First, he says that claiming quantum meruit is not available where there is a contract that governs the relationship between the parties. I have dealt with this issue above and conclude that a claim in quantum meruit is, as a matter of law, available to Costi Cohen.
Secondly, Mr Bo says that a claim in quantum meruit is a claim to restitution arising from Mr Bo’s acceptance of benefits accruing to him. Mr Bo emphasises that the obligation on the part of Mr Bo is to make fair and just restitution for a benefit derived at the expense of Costi Cohen. Mr Bo claims that he did not derive benefit from the services because he did not acquire the relevant property. He claims that the beneficiary in terms of the acquisition of the property is Boying and not him.
However, in my view Mr Bo’s analysis of the benefit derived from Costi Cohen’s service is incomplete. The mere fact that Mr Bo does not have a shareholding in Boying does not mean that he did not derive benefits from the services of Costi Cohen. The parties contemplated that fees would be paid for services that led to Mr Bo, or someone he procured, purchasing a property – indeed, the first offer to purchase the Drummoyne property was not by Mr Bo, but rather Y&M. That is, it was of benefit to Mr Bo to have Costi Cohen provide their services, in particular, to locate and present a suitable property that he could purchase or that he could procure another person or entity to purchase. Here, Costi Cohen sourced the Drummoyne property. Mr Bo accepted those services and procured Boying to act upon Costi Cohen’s work. In my view, in such circumstances, Mr Bo accepted and relevantly benefited from Costi Cohen’s work and effort because it enabled him to procure Boying to purchase that property. Costi Cohen’s services were provided to Mr Bo, not Boying.
Subject to establishing a reasonable remuneration for its work, Costi Cohen is entitled to recover on a quantum meruit as it would be unjust for Mr Bo to take the benefit of its work without providing fair and just restitution.
In Horton v Jones (1934) SR (NSW) 359, at 367-368 , Jordan CJ (with whom Halse Rogers J and Markell AJ concurred) noted that the existence of “the unenforceable contract may be referred to as evidence, but as evidence only, on the question of [the] amount” to be recovered as reasonable remuneration. Jordan CJ, in this regard, was referred to with approval by Deane J and Dawson J in Pavey & Matthews Ltd v Paul (1987) 162 CLR 221 (at p250-257; 267-268 respectively). [10]
10. see also Eddy Lau Constructions Pty Ltd v Transdevelopment Enterprise Pty Ltd [2004] NSWSC 273 at [70] Cf Horley v Sector 7G Architecture Pty ltd [2011] NSWSC 827 at [124-125] where there was no agreement between the parties as to rates;
The Agency Agreement recorded an agreed remuneration of 2% of the purchase price plus GST. The agreement is some evidence going to the question of reasonable remuneration being an amount agreed by the parties. Further, at no stage in his dealings with Costi Cohen did Mr Bo ever assert that its fee was unreasonable, though he did try and negotiate a lower fee. Notwithstanding that, he knowingly agreed that fee. Even when Mr Bo disputed liability to pay the fee, he did not do so on the basis that the quantum of the fee was unreasonable. Further, Mr Costi’s evidence was that since 2020 he has exclusively worked as a commercial property buyer’s agent through Costi Cohen and estimated that he acted for approximately 500 commercial property buyers in respect to the acquisition of commercial properties located in New South Wales. He gave evidence that Costi Cohen’s standard commission fee is between 1.8% to 2.2% depending on the brief and budget for the prospective property.
There was no cross examination, nor any evidence led by Mr Bo to suggest that 2% plus GST was an unreasonable fee for the services, or that the $5,000 plus GST retainer was a reasonable fee for the services (Mr Harkins accepted that that fee was charged so that the work was not a waste of time – however, I do not regard that evidence as implying that the $5,000 was reasonable remuneration, nor was such a proposition put to Mr Harkins). The observation that there was no such cross-examination nor evidence is not to reverse the onus, it being squarely Costi Cohen’s onus to establish its claim. However, when there is ‘evidence, but only evidence’ of quantum that can be used in a quantum meruit claim (namely, the agreed fee for the relevant service), and evidence of such a fee being within the standard fee range charged to hundreds of other clients over a number of years, the absence of any competing evidence, or challenge to that fee, enables the Court to more readily rely on that evidence as sufficiently proving that the amount claimed is reasonable remuneration for the services provided.
Accordingly, I find that Costi Cohen has made good its quantum meruit claim in the amount of $166,100 (being 2% of the purchase price of $7,550,000 plus GST).
For completeness I note that, even if I had found that Costi Cohen engaged in misleading and deceptive conduct or that the agency agreement was unjust under the Contract Review Act, the appropriate relief in the circumstances would be orders (whether by injunction or otherwise) preventing Costi Cohen from enforcing the Agency Agreement. However, in circumstances where Mr Bo accepted the services of Costi Cohen to his benefit and Costi Cohen sourced the Drummoyne property that Mr Bo procured Boying to purchase, such findings would not have defeated Costi Cohen’s claim in quantum meruit.

Conclusion

I summarise my ultimate findings as follows:

Costi Cohen has failed on its contract claim for the payment of commission. Mr Bo has succeeded in establishing that clause 4.2(a) of the Agency Agreement is void pursuant to s.23 of the ACL (being an unfair term). Costi Cohen has also failed to establish the conventional estoppel pleaded;

Costi Cohen has failed in its claim for indemnification of its costs pursuant to clause 13 of the Agency Agreement as that clause does not, on its proper construction, provide for such indemnification;

Mr Bo has failed in his claims in his Amended Defence and in his Cross Claim with respect to:

his allegations that the Agency Agreement was void for uncertainty or that it was never properly executed;

his allegations of contravention of s.18 of the ACL;

his allegations that Costi Cohen engaged in unconscionable conduct in contravention of s.21 of the ACL;

his allegations that he is entitled to relief under the Contracts Review Act.

Costi Cohen has succeeded on its quantum meruit claim in the amount of $166,100. Mr Bo made no submission that if Costi Cohen succeeded in obtaining the relief sought, it should not receive pre-judgment interest. Costi Cohen issued an invoice to Mr Bo on 11 June 2024 in the amount of $166,100 with a due date of 14 June 2024. Mr Bo obtained the benefit of Costi Cohen’s services and materially acted upon that benefit by procuring Boying to enter a contract for the purchase of the Drummoyne property on 7 June 2024. I consider that Costi Cohen is entitled to pre-judgment interest pursuant to s.100 of the Civil Procedure Act (2005) NSW from 14 June 2024.

The parties have requested an opportunity to put further submissions to the Court on costs.
Accordingly, the initial orders I make are:

The parties are to confer, and provide to my associate within 7 days, draft orders by consent giving effect to these reasons including a calculation of the pre-judgment interest to which Costi Cohen is entitled to pursuant to s.100 of the Civil Procedure Act. If the parties cannot agree on the orders, they are to provide their competing orders within the same 7 days.

Any party who wishes file submissions on the question of costs is to file and serve those submissions within 7 days, such submissions to be no more than 5 pages in length.

If a party wishes to address the Court on the question of costs, they are to notify my associate of that fact within 7 days.

If the parties do not agree on orders pursuant to order 1 above, or either party gives notice of a wish to address the court on costs pursuant to order 3 above, the Court will list the matter on either 26 September 2025 or 10 October 2025. If a listing is required, the parties are, within 7 days, to notify my associate identifying which of the two dates is mutually preferred. Otherwise, the Court will make final orders in chambers.

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Endnotes

Decision last updated: 12 September 2025

Medium Neutral Citation:	Costi Cohen Pty Ltd v Bo [2025] NSWDC 356
Hearing dates:	5 – 7 August 2025
Date of orders:	12 September 2025
Decision date:	12 September 2025
Jurisdiction:	Civil
Before:	Habib SC DCJ
Decision:	(1) The parties are to confer, and provide to my associate within 7 days, draft orders by consent giving effect to these reasons including a calculation of the pre-judgment interest to which Costi Cohen is entitled to pursuant to s.100 of the Civil Procedure Act. If the parties cannot agree on the orders, they are to provide their competing orders within the same 7 days. (2) Any party who wishes to file submissions on those submissions within 7 days, such submissions to be no more than 5 pages in length. (3) If a party wishes to address the Court on the question of costs, they are to notify my associate of that fact within 7 days. (4) If the parties do not agree on orders pursuant to order 1 above, or either party gives notice of a wish to address the court on costs pursuant to order 3 above, the Court will list the matter on either 26 September 2025 or 10 October 2025. If a listing is required, the parties are, within 7 days, to notify my associate identifying which of the two dates is mutually preferred. Otherwise, the Court will make final orders in chambers.
Catchwords:	CONTRACTS –construction – uncertainty – unfair terms – misleading and deceptive conduct – unconscionability – Contracts Review Act – conventional estoppel – quantum meruit
Legislation Cited:	Civil Procedure Act 2005 (NSW) Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law Contracts Review Act 1980 (NSW) Married Women’s Property Act 1893 (NSW)
Cases Cited:	ACCC v TPG Internet Pty Ltd (2020) 278 FCR 450 Australian Competition and Consumer Commission v Chrisco Hampers Australia Limited [2015] FCA 1204; (2015) 239 FCR 33 Australian Competition and Consumer Commission v CLA Trading Pty Ltd [2016] FCA 377; (2016) ATPR 42-517 Australian Competition and Consumer Commission v Smart Corporation Pty Ltd (2021) FCA 347 Australian Securities and Investments Commission v Bank of Queensland Ltd [2021] FCA 957 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 CCP Australia Airships Ltd v Primus Telecommunications Pty Ltd [2004] VSCA 232 Con-Stan Industries ofAustralia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 Fitzgerald v Masters (1956) 95 CLR 420 Horton v Jones (1934) SR (NSW) 359 Karpikv Carnival PLC (2023) 415 ALR 491 Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] FCA 400; (1989) ATPR 46-054 Kooee Communications Pty Ltd v Primus Telecommunications Pty Ltd [2008] NSWCA 5 Kowalczuk v Aecom Finance Pty Ltd (2008) 77 NSWLR 205 Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 Miller & Assocs Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357; 270 ALR 204; 84 ALJR 644 Moratic Pty Ltd v Gordon [2007] NSWSC 5 Pavey & Matthews Ltd v Paul (1987) 162 CLR 221 QBT Pty Ltd v Wilson [2024] NSWCA 114 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77; 12 FCR 477; (1986) ATPR (Digest) 46-010 Roude v Helwani [2020] NSWCA 310 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 WorkPac Pty Ltd v Rossato (2021) 271 CLR 456
Texts Cited:	Herzfeld and Prince, Interpretation (3rd ed, 2024, Thomson Reuters) Macquarie Dictionary, 9th Edition (2023)
Category:	Principal judgment
Parties:	Costi Cohen Pty Ltd (Plaintiff) Yin Bo (Defendant)
Representation:	Counsel: Mr P Folino-Gallo (Plaintiff) Mr P Reynolds (Defendant) Solicitors: Hitch Advisory (Plaintiff) MLH Lawyers (Defendant)
File Number(s):	2024/356522
Publication restriction:	Nil