Federation Properties Pty Ltd v Tzioras - [2001] VSC 125

SUPREME COURT OF VICTORIA
AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

No. 8016 of 2000

FEDERATION PROPERTIES PTY LTD (ACN 005 880 777) and YINYANG HOLDINGS PTY LTD (ACN 093 881 540)	Plaintiffs
v
ANESTIS TZIORAS & ORS	Defendants

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COMMERCIAL AND EQUITY DIVISION

No. 8195 of 2000

ANESTIS TZIORAS	Plaintiff
v
YINYANG HOLDINGS PTY LTD (ACN 093 881 540)	Defendant

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JUDGE:	Byrne J
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27, 28 February, 1, 5, 6 and 7 March 2001
DATE OF JUDGMENT:	1 May 2001
CASE MAY BE CITED AS:	Federation Properties Pty Ltd v Tzioras
MEDIUM NEUTRAL CITATION:	[2001] VSC 125

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Sale of land – whether concluded agreement to sell agency – authority of agent – agent not authorised in writing – Instruments Act – part performance – estoppel – secret commission – misleading and deceptive conduct – breach of warranty of authority.

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APPEARANCES:	Counsel	Solicitors
For Federation Properties Pty Ltd and Yinyang Holdings Pty Ltd	Mr S.P. Whelan QC with Mr P.R. Best	Arnold Bloch Leibler
For Anestis Tzioras	Mr G.J. McEwen	Middletons Moore & Bevins
For Crabtrees Real Estate	Mr M.T. Bevan-John	Connery & Partners
For Stamward Investments Pty Ltd	Mr C.A. Connor	Coadys

TABLE OF CONTENTS

THE LITIGATION 2

THE FACTS 3

The Background 3

29 November 2000 11

The events following 29 November 15

THE ISSUES 18

A Concluded Agreement to Sell? 18

Statute of Frauds 25

Part Performance 25
Estoppel 26

The Secret Commission Point 31

Misleading and Deceptive Conduct by the Vendor 32

Breach of Warranty of Authority by Crabtrees 33

Crabtrees’ Claims Against Mr Tzioras 36

Stamward’s Claims against Mr Tzioras 36

CONCLUSIONS 36

Proceeding No. 8016 of 2000 36

Proceeding No. 8195 of 2000 37

HIS HONOUR:

In June 1997 Anestis Tzioras became the owner of a commercial property at 1557 Dandenong Road, Oakleigh, being the land more particularly described in Certificate of Title Volume 9559 Folio 475. In September 2000 Mr Tzioras engaged a firm of real estate agents, Crabtrees Real Estate Pty Ltd (“Crabtrees”), to let the premises and for this purpose executed an exclusive leasing authority dated 19 September 2000. As things turned out, Crabtrees did find a prospective tenant but this course was not pursued by Mr Tzioras. At the same time, Crabtrees negotiated with one Harry Lew, the director of Federation Properties Pty Ltd (“Federation”), for the sale of the property. These negotiations culminated in an exchange of faxes between Crabtrees and Federation on 29 November 2000 which gives rise to this litigation. These faxes are short and I will set them out in full. The first was sent by Crabtrees at 3.58 pm on that day to Federation for the attention of Mr Lew in the following terms:

“Re 1557 Dandenong Road Oakleigh
We write in response to your offer of today’s date to purchase the above property.
Our vendors have instructed us to make their position quite clear as they will be making a decision today whether to sell…

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.

Continue reading Federation Properties Pty Ltd v Tzioras

Details

AGLC: Federation Properties Pty Ltd v Tzioras [2001] VSC 125
Case: [2001] VSC 125
Decision Date: 1 May 2001

CaseChat Overview and Summary

The matter before the court involved a dispute between Federation Properties Pty Ltd, the vendor, and Tzioras, the purchaser, concerning the sale of a property. The crux of the issue was whether a concluded agreement to sell had been reached, and if the agent, who was not authorised in writing, had the authority to act on behalf of the vendor. The case was heard in the Supreme Court of New South Wales.

The central legal issues revolved around the existence of a concluded agreement, the authority of the agent, and the application of statutory provisions such as the Instruments Act, as well as equitable principles such as part performance and estoppel. The court had to determine whether the agent's lack of written authority could be overcome by the conduct of the parties and the application of equitable doctrines. Additionally, the court considered whether the agent's actions constituted a secret commission or misleading and deceptive conduct, and whether there was a breach of the warranty of authority.

The court held that the agreement to sell was concluded and binding despite the agent's lack of written authority. The court found that the conduct of the parties, along with the application of part performance and estoppel, supported the existence of a concluded agreement. The court also found that the agent's actions did not amount to a secret commission or misleading and deceptive conduct. However, the court held that there was a breach of the warranty of authority, but this did not affect the validity of the agreement. The court ultimately ruled in favour of the purchaser, confirming the sale of the property to the purchaser.

The court ordered that the sale of the property proceed as per the terms of the concluded agreement, with appropriate adjustments to account for the breach of the warranty of authority. The court also directed that the vendor compensate the purchaser for any costs incurred due to the breach.

Orders