Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd

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.