Indus Realty Pty Ltd v Phillipson - [2002] VSC 129

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8690 of 2001

INDUS REALTY PTY LTD (ACN 089 421 358)	Appellant
v
JOHN DAVID BURTON PHILLIPSON and ELIZABETH PHILLIPSON	Respondents

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2002
DATE OF JUDGMENT:	24 April 2002
CASE MAY BE CITED AS:	Indus Realty Pty Ltd v Phillipson and Anor
MEDIUM NEUTRAL CITATION:	[2002] VSC 129

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Appeal - Magistrates' Court – real estate agent – written authority – right to commission – handwritten term in printed form – construction of agreement – possible conflict between terms – principles – no conflict – Magistrate in error – agent entitled to commission.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr W. Gillies	Raelene Ann Murley
For the Respondents	Mr R. Boaden	Stuart Morgan & Associates

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

Magistrates' Court Proceeding........................................................................................................ 2

Appeal.................................................................................................................................................. 4

Magistrate in Error............................................................................................................................. 5

Construction of the Authority......................................................................................................... 7

Conclusion......................................................................................................................................... 16

HIS HONOUR:

This is an appeal pursuant to s.109 of the Magistrates' Court Act 1989, from orders made by a Magistrate. The Magistrate made orders in a proceeding instituted by two property owners against a real estate agent for recovery of moneys allegedly due to the property owners.

Parties

The appellant, Indus Realty Pty Ltd, ("Indus"), was at all relevant times a company carrying on the business of real estate agent at Wheeler's Hill. An employee of the company, Mr E. Diakomanolis, was the person handling the transaction on behalf of Indus.

Indus was the defendant in the proceeding in the Magistrates' Court. It filed a counterclaim.

The respondents, John Phillipson and Elizabeth Phillipson ("the plaintiffs"), are a married couple, who at all relevant times owned the property at 781 Waverley Road, Glen Waverley ("the property"). They were the plaintiffs in the proceeding below.

Magistrates' Court Proceeding

On 18 May 2001, the plaintiffs, through their solicitors, issued a complaint in the Magistrates' Court against Indus. According to the particulars of claim which are far from enlightening, the plaintiffs claimed the sum of $10,000 "for moneys due and owing pursuant to a contract dated 15^th July 2000". In fact, the claim was for money had and received.

Initially, Indus acted for itself and filed a notice of defence which was equally unenlightening. It subsequently engaged a solicitor and filed a notice of counterclaim which clearly set out the issues.

The counterclaim alleged that there was a written agreement made between the plaintiffs and Indus dated 15 July 2001, whereby the plaintiffs engaged Indus to sell the plaintiffs' property. It was alleged that it was a term of the agreement that on the sale of the property, Indus was entitled to 3% commission.

Indus introduced a purchaser, and a written contract of sale was executed by the plaintiffs and the purchaser, October Properties Pty Ltd ("the purchaser"), on or about 20 July 2000, for a price of $1M.

Indus received the sum of $10,000, being a part‑payment of…

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 Indus Realty Pty Ltd v Phillipson

Details

AGLC: Indus Realty Pty Ltd v Phillipson [2002] VSC 129
Case: [2002] VSC 129
Decision Date: 24 April 2002

CaseChat Overview and Summary

Indus Realty Pty Ltd appealed against a decision of the Magistrates' Court in relation to a dispute over the right of a real estate agent to a commission. The case involved the interpretation of a written authority form where the agent claimed entitlement to a commission despite the presence of a handwritten term in a printed form. The court was required to decide whether the handwritten term conflicted with the printed terms and, if so, which terms should prevail. The court also considered the principles of construction of agreements and whether the magistrate erred in their interpretation.

The court examined the document in question and concluded that there was no conflict between the terms of the printed form and the handwritten addition. The handwritten term did not alter the fundamental agreement regarding the agent's entitlement to a commission. The court held that the magistrate had erred in finding that the handwritten term precluded the agent from claiming a commission. Instead, the court found that the agent was entitled to the commission as per the agreement. The principles of construction of agreements were applied to support this interpretation, emphasising that the document should be read as a whole.

Based on the above findings, the court allowed the appeal and remitted the matter back to the Magistrates' Court for the entry of orders consistent with the court's decision. The court found that the agent was entitled to the commission as per the terms of the agreement, and the magistrate's previous decision was incorrect. The final orders of the court ensured that the agent's right to the commission was recognised and that the case was properly resolved according to the principles of contract interpretation.

Orders