Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Creative Academy Group Pty Ltd v White Pointer Investments Pty Ltd [2024] NSWCA 133 Hearing dates: 21 February 2024 Decision date: 31 May 2024 Before: Meagher JA at [1];
White JA at [40];
Adamson JA at [59]Decision: (1) Allow the appeal in part.
(2) Set aside the judgment in order (1) of the orders made by Rees J on 25 July 2023 and, in lieu thereof order judgment against the first defendant in the amount of $567,250, together with interest under s 100 of the Civil Procedure Act 2005 (NSW).
(3) Otherwise dismiss the appeal.
(4) Order the appellants to pay 75% of the respondents’ costs of the appeal.
Catchwords: CONTRACTS — formation — consideration — where new promise made in context of pre-existing contract — whether new promise is no more than promisor already bound to do — whether new promise was a bona fide compromise of a disputed claim
CONTRACTS — illegality — illegal contracts — contracts contrary to public policy — whether it is incongruent with public policy to allow unlicensed agent to retain monies paid to it in breach of agency legislation
RESTITUTION — ineffective transactions — unenforceable contracts — restitution of money paid — where payee in breach of obligation to be licensed under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — whether payor entitled to restitution of monies paid under contract despite payee’s breach — where legislation expressly excludes quantum meruit claims — where legislation does not provide for recovery of amounts already paid
RESTITUTION — mistake — restitution of money paid — whether payor entitled to restitution of monies paid under mistaken belief that payee could enforce claim to recover such payment — whether payment made as a result of mistaken belief
STATUTORY INTERPRETATION — Agents Act 2003 (ACT) — whether respondent “carries on business as a real estate agent” — meaning of “induce”
Legislation Cited: Agents Act 2003 (ACT), ss 8, 18, 23, 99, 100
Builders Licensing Act 1971 (NSW), s 45
Civil Procedure Act 2005 (NSW), s 100
Property and Stock Agents Act 2002 (NSW), ss 8, 9, 55
Uniform Civil Procedure Rules 2005 (NSW), r 36.16
Cases Cited: Australian Woollen Mills Pty Ltd v The Commonwealth (1954) 92 CLR 424; [1954] HCA 20
Banque Commerciale SA (En Liqn) v Akhil Holdings Ltd (1990) 169 CLR 279; [1990] HCA 11
Beaton v McDivitt (1987) 13 NSWLR 162
Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24
Colbron v St Bees Island Pty Ltd (1995) 56 FCR 303
Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70
Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418; [1970] HCA 31
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- Case
- [2024] NSWCA 133
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court of Appeal were whether the respondent was entitled to restitution of the monies paid, notwithstanding the existence of a contract, and whether the appellant's promise to perform certain actions constituted valid consideration for a new promise made by the respondent. Specifically, the court had to determine if the appellant's actions were in breach of the *Property and Stock Agents Act 2002* (NSW) and the *Agents Act 2003* (ACT), and if such a breach rendered the contract illegal or unenforceable, thereby entitling the respondent to recover the payments. The court also considered whether the respondent's payments were made under a mistake of fact or law, and whether the appellant's purported compromise of a disputed claim provided sufficient consideration for the respondent's payments.
The Court of Appeal found that the appellant's conduct in inducing the respondent to enter into the contract was in breach of the licensing requirements under the *Property and Stock Agents Act 2002* (NSW). However, the court held that the legislation did not expressly preclude recovery of monies paid under such a contract, nor did it provide a specific mechanism for recovery. Applying principles of restitution, the court determined that it would be incongruent with public policy to allow an unlicensed agent to retain monies paid in breach of statutory obligations. The court also considered the doctrine of consideration, finding that the appellant's promise to perform actions it was already contractually bound to do did not constitute good consideration for the respondent's subsequent promise. The court concluded that the respondent was entitled to restitution of the monies paid.
The Court of Appeal allowed the appeal in part, setting aside the original judgment and ordering judgment against the appellant in the amount of $567,250, plus interest. The appeal was otherwise dismissed, and the appellants were ordered to pay 75% of the respondent's costs of the appeal.
Orders
Orders of the court
(1) Allow the appeal in part.
(2) Set aside the judgment in order (1) of the orders made by Rees J on 25 July 2023 and, in lieu thereof order judgment against the first defendant in the amount of $567,250, together with interest under s 100 of the Civil Procedure Act 2005 (NSW).
(3) Otherwise dismiss the appeal.
(4) Order the appellants to pay 75% of the respondents’ costs of the appeal.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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