Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd - [2019] NSWSC 73

Supreme Court

New South Wales

Medium Neutral Citation: Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd [2019] NSWSC 73
Hearing dates: 26 September 2018
Date of orders: 15 February 2019
Decision date: 15 February 2019
Jurisdiction: Common Law
Before: Harrison AsJ
Decision:
The Court orders that:

(1) The appeal is upheld.

(2) The Local Court judgment that Dunkirk Property Development Pty Ltd pay $91,000 to Mosman & Co Pty Ltd is to be set aside.

(3) The notice of contention filed 12 June 2018 is dismissed.

Judgment:

(4) In lieu, I enter judgment that Dunkirk Property Development Pty Ltd is to pay Mosman & Co Pty Ltd the sum of $30,000 owed under the fees agreement.

The Court notes that:

(5) At the time of these proceedings, Dunkirk Property Development Pty Ltd has already paid Mosman & Co Pty Ltd the sum of $30,000 so ordered.

The Court further orders that:
(6) The defendant is to pay the plaintiff’s costs on an ordinary basis.
Catchwords:
APPEAL – Local Court – Local Court Act – Error of law – Failure to give reasons – Contract – Real estate agency agreement –Whether fees agreement varied or terminated agency agreement – Whether repudiation of fees agreement entitled aggrieved party to terminate – Whether aggrieved party entitled to sue for amount owing under original or varied agreement
Notice of contention – Agreement of accord and satisfaction – Whether fees agreement was agreement of accord and conditional satisfaction – Whether fees agreement varied agency agreement such that performance was a condition precedent
Legislation Cited: Local Court Act 2007 (NSW), s 39(1), s 40(1)
Cases Cited: Beneficial Finance Corp Ltd v Multiplex Constructions Pty Ltd (1995) 36 NSWLR 510
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Carr v J A Berriman Pty Ltd (1953) 89 CLR 327
Commissioner of Taxation of the Commonwealth of Australia v Sara Lee Household & Body Car (Australia) Pty Limited (2000) 201 CLR 520
Cox Purtell Staffing Services Pty Ltd v Our Energy
Group Pty Ltd [2017] NSWSC 1122
Damberg v Damberg (2001) 52 NSWLR 492
El-Mir v Risk [2005] NSWCA 215
Foakes v Beer (1884) 9 App Cas 605
Hunters Hill Council v Hakim [2016] NSWSC 1598
Jingalong Pty Limited v Todd [2015] NSWCA 7
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
Madden’s Stable Bedding Pty Ltd v Reid [2014] NSWSC 554
McDonald v Dennys Lascelles Limited [1933] 48 CLR 457
Musemeci v Winadell Pty Ltd (1994) 34 NSWLR 723
Osborn v McDermott [1998] 3 VR 1
Pinnel’s Case (1602) 5 Co Rep 117a
Public Service Board of New South Wales v Osmond (1986) 159 CLR 656
Soulemeizis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247
Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1957) 98 CLR 93
Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632
Tropical Traders Ltd v Goonan (1964) 111 CLR 41;

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: [2019] NSWSC 73
Decision Date: 15 February 2019

CaseChat Overview and Summary

The dispute between Dunkirk Property Development Pty Ltd and Mosman & Co Pty Ltd was heard in the Supreme Court of New South Wales. The primary issue revolved around the interpretation and effect of a fees agreement on an existing real estate agency agreement. Dunkirk, the appellant, sought to determine whether the fees agreement varied or terminated the agency agreement, and if the respondent's repudiation of the fees agreement allowed Dunkirk to terminate the agency agreement and subsequently sue for the amount owing under the original or varied agreement. Mosman, the respondent, contested these claims.

The court had to decide whether the fees agreement constituted an accord and satisfaction, and if it varied the agency agreement such that performance was a condition precedent. Additionally, the court needed to determine whether the respondent's failure to provide reasons for its decision constituted an error of law, and if the notice of contention served by the respondent was sufficient to raise the defence of accord and satisfaction. The court's reasoning focused on the construction of the agreements and the implications of the fees agreement on the agency agreement. It was found that the fees agreement did not vary or terminate the agency agreement, and the respondent's repudiation did not entitle the appellant to terminate the agency agreement and sue for the amount owing under the original or varied agreement.

Ultimately, the court held that the fees agreement was an accord and conditional satisfaction, and performance under the fees agreement was a condition precedent to the agency agreement. The respondent's failure to give reasons for its decision was not an error of law, and the notice of contention served by the respondent was sufficient to raise the defence of accord and satisfaction. The appeal was dismissed with costs.

Orders