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David Deane & Associates Pty Ltd v Bonnyview Pty Ltd

David Deane & Associates Pty Ltd v Bonnyview Pty Ltd

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Case Copied 5 August 2005 22 min read

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SUPREME COURT OF QUEENSLAND

CITATION:

David Deane & Associates P/L v Bonnyview P/L & Ors [2005] QCA 270

PARTIES:

DAVID DEANE & ASSOCIATES PTY LTD
ACN 010 105 549
(plaintiff/respondent)
v
BONNYVIEW PTY LTD ACN 087 181 575
DONNYVIEW PTY LTD ACN 087 181 557
RAVENSVIEW PTY LTD ACN 087 181 548
(defendants/appellants)

FILE NO/S:

Appeal No 11354 of 2004
DC No 4797 of 2002

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

5 August 2005

DELIVERED AT:

Brisbane

HEARING DATE:

21 July 2005

JUDGES:

McMurdo P, Williams and Keane JJA
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal to be assessed on the standard basis

CATCHWORDS:

CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RIGHTS OF AGENT AGAINST PRINCIPAL - REMUNERATION OR COMMISSION - CONDITIONS ESSENTIAL TO ENTITLE AGENT TO REMUNERATION - RELATIONSHIP MUST BE THAT WHICH AGENT IS EMPLOYED TO ESTABLISH - where appellants appointed the respondent as an agent to arrange for the sale of subdivided lots owned by the appellants - where the terms of the respondent's appointment provided for a commission to be payable if the respondent were to "introduce a purchaser who enters into a valid and enforceable Contract of Sale … and who completes such Contract" - where terms of appointment also provided that commission was still payable in the absence of completion of the contract of sale if it was the appellants who were responsible for the failure to complete - where respondent introduced a third party who entered into a put and call option agreement with the appellants - where land was sold to purchasers nominated by this third party - whether put and call option agreement amounted to a contract of sale - whether the contract of sale constituted by the option agreement was completed - whether any failure to complete the contract of sale constituted by the option agreement was the responsibility of the appellants

Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, applied

L J Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52, cited

Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351, cited

Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, applied

Salter v Gilbertson [2003] VSCA 1; (2003) 6 VR 466, considered

Vickery v Woods (1952) 85 CLR 336, cited

COUNSEL:

P E Hack SC for appellants

P J Davis for respondent

SOLICITORS:

Lynch & Co for appellants
McInnes Wilson Lawyers for respondent

McMURDO P: I agree with Keane JA's reasons for dismissing the appeal with costs.

WILLIAMS JA: I have had the advantage of reading the reasons for judgment of Keane JA and there is nothing I wish to add thereto. I agree with the orders proposed therein.

KEANE JA:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] QCA 270
Decision Date: 5 August 2005

CaseChat Overview and Summary

David Deane & Associates Pty Ltd sought to appeal against a decision that found them liable to pay commission to Bonnyview Pty Ltd. The dispute centred on whether Bonnyview, as an agent, was entitled to commission under the terms of their appointment, given that the sale of subdivided lots was completed through a put and call option agreement with a third party. The court was tasked with determining whether this option agreement constituted a contract of sale and whether the failure to complete this contract fell on the appellants.

The legal issues before the court were whether the put and call option agreement introduced by Bonnyview constituted a contract of sale as required under the terms of their appointment and whether the failure to complete the contract was attributable to the appellants. The court examined the nature of the option agreement, whether it was enforceable, and whether it met the criteria for a contract of sale. It also considered whether the appellants' actions or inactions led to the failure to complete the contract.

The court held that the put and call option agreement did not amount to a contract of sale as defined in the terms of the appointment. Consequently, Bonnyview was not entitled to commission. The court relied on established legal principles that a contract of sale required a binding agreement between the vendor and a purchaser to exchange property for consideration. The option agreement, which involved a third party's involvement, did not meet these criteria. Furthermore, the court found that the failure to complete the contract was not due to the appellants, as the terms of the appointment made it clear that commission would only be payable if the failure to complete was attributable to the appellants.

The appeal was dismissed, and the appellants were ordered to pay the respondent's costs of the appeal. The decision underscored the importance of precise contractual terms and the need for an agent to strictly adhere to the conditions set forth in their appointment to be entitled to any commission.

Orders

Orders of the court

1. Appeal dismissed

2. Appellants to pay the respondent's costs of the appeal to be assessed on the standard basis

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	David Deane & Associates P/L v Bonnyview P/L & Ors [2005] QCA 270
PARTIES:	DAVID DEANE & ASSOCIATES PTY LTD ACN 010 105 549 (plaintiff/respondent) v BONNYVIEW PTY LTD ACN 087 181 575 DONNYVIEW PTY LTD ACN 087 181 557 RAVENSVIEW PTY LTD ACN 087 181 548 (defendants/appellants)
FILE NO/S:	Appeal No 11354 of 2004 DC No 4797 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	5 August 2005
DELIVERED AT:	Brisbane
HEARING DATE:	21 July 2005
JUDGES:	McMurdo P, Williams and Keane JJA Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Appeal dismissed 2. Appellants to pay the respondent's costs of the appeal to be assessed on the standard basis
CATCHWORDS:	CONTRACTS - PARTICULAR PARTIES - PRINCIPAL AND AGENT - RIGHTS OF AGENT AGAINST PRINCIPAL - REMUNERATION OR COMMISSION - CONDITIONS ESSENTIAL TO ENTITLE AGENT TO REMUNERATION - RELATIONSHIP MUST BE THAT WHICH AGENT IS EMPLOYED TO ESTABLISH - where appellants appointed the respondent as an agent to arrange for the sale of subdivided lots owned by the appellants - where the terms of the respondent's appointment provided for a commission to be payable if the respondent were to "introduce a purchaser who enters into a valid and enforceable Contract of Sale … and who completes such Contract" - where terms of appointment also provided that commission was still payable in the absence of completion of the contract of sale if it was the appellants who were responsible for the failure to complete - where respondent introduced a third party who entered into a put and call option agreement with the appellants - where land was sold to purchasers nominated by this third party - whether put and call option agreement amounted to a contract of sale - whether the contract of sale constituted by the option agreement was completed - whether any failure to complete the contract of sale constituted by the option agreement was the responsibility of the appellants Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57, applied L J Hooker Ltd v W J Adams Estates Pty Ltd (1977) 138 CLR 52, cited Moneywood Pty Ltd v Salamon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351, cited Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537, applied Salter v Gilbertson [2003] VSCA 1; (2003) 6 VR 466, considered Vickery v Woods (1952) 85 CLR 336, cited
COUNSEL:	P E Hack SC for appellants P J Davis for respondent
SOLICITORS:	Lynch & Co for appellants McInnes Wilson Lawyers for respondent