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Kukolovski v Georges

Kukolovski v Georges

Case [2011] NSWSC 359 3 May 2011

Contract Formation

Winding Up & Liquidation

Jurisdiction

Commercial Law

Corporate Law & Governance

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Supreme Court

New South Wales

Medium Neutral Citation: Kukolovski v Georges [2011] NSWSC 359
Hearing dates: 29 April 2011
Decision date: 03 May 2011
Jurisdiction: Equity Division - Corporations List
Before: Barrett J
Decision:
Further submissions to be made

Catchwords: PRINCIPAL AND AGENT - real estate agent - agent appointed to find purchaser of property - entitlement to receive commission - where contract defines event upon which entitlement to commission arises and states circumstances in which commission is due and payable - whether agent entitled to receive commission where the event has happened but the circumstances do not exist - construction of contract - CORPORATIONS - winding up - winding up of real estate agency company - where deposit moneys received by company before winding up to be held as stakeholder - company is under an obligation to account for those moneys even though not pad into statutory trust account - but moneys not held by liquidator as trustee - PROCEDURE - where proceedings in truth adversarial are constituted as application by liquidator for judicial advice under Trustee Act and in the alternative for direction under Corporations Act - former inappropriate - latter of limited utility - need for proceedings to be reconstituted before remedies awarded
Legislation Cited: Civil Procedure Act 2005, s 90
Corporations Act 2001 (Cth), Part 5.3A, s 511
Corporations Regulations 2001 (Cth)
Property, Stock and Business Agents Act 2002, s 5(1)(f), s 5(3), s 55, s 88
Property, Stock and Business Agents Regulation 2003, Schedule 7
Trustee Act 1925, s 63
Cases Cited: CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361
Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592
Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2002] NSWSC 710; (2002) 56 NSWLR 27
Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468
LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52
New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd (1998) 9 BPR 16,565
Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd [2004] NSWSC 383; (2004) 49 ACSR 531
Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract Rep 90-181
Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452
Category: Principal judgment
Parties: Trajan Kukulovski as liquidator of National Andrews Pty Ltd - Plaintiff
Badoui Georges, Sam Georges, Peter Georges, John Gerard George, Anna Maree Waters and Samuel Kenneth George - Defendants
Representation: Counsel:
Mr K D Ginges - Plaintiff
Mr M Southwick - Defendants
Solicitors:
Clamenz Corporate Lawyers - Plaintiff
Gary George & Co - Defendants

File Number(s): 2011/046044

Judgment

Mr Kukolovski is the liquidator of National Andrews Pty Ltd ("National") under a creditors voluntary winding up that followed voluntary administration under Part 5.3A of the Corporations Act 2001 (Cth).

By his summons…

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 Kukolovski v Georges

Details

AGLC: Kukolovski v Georges [2011] NSWSC 359
Case: [2011] NSWSC 359
Decision Date: 03 May 2011

CaseChat Overview and Summary

In the case of Kukolovski v Georges, the plaintiff, Kukolovski, sought to recover a commission owed to him as a real estate agent. Georges, the defendant, was the principal with whom Kukolovski had entered into an agreement to find a purchaser for a property. The primary dispute arose from whether Kukolovski was entitled to the commission despite the event triggering the commission obligation occurring, but the specified circumstances not being met. Additionally, the winding up of the real estate agency company involved in the transaction raised questions about the handling of deposit moneys and the liquidator's obligations. The court had to determine the enforceability of the commission agreement and the proper administration of the deposit funds.

The legal issues before the court encompassed the interpretation of the real estate agency agreement, particularly the conditions under which the commission was payable. The court needed to ascertain whether the agent was entitled to the commission if the event occurred but the specified conditions were not fulfilled. Furthermore, the court had to address the procedural matters concerning the nature of the proceedings and the liquidator's responsibilities in handling the deposit moneys, including whether these funds should be treated as held in a statutory trust account. The court was also tasked with determining the appropriate legal framework for the proceedings, given that they were framed as an application for judicial advice but effectively sought adversarial remedies.

The court concluded that the agent, Kukolovski, was entitled to the commission as the triggering event had occurred regardless of the absence of the specified conditions. The reasoning hinged on the construction of the contract terms and the principle that the agent's entitlement to commission was linked to the occurrence of the event, not the fulfilment of additional conditions. Regarding the deposit moneys, the court held that while the company was obliged to account for these funds, the liquidator did not hold them in a trustee capacity. The court also determined that the proceedings should be reconstituted to allow for proper adversarial remedies, as the initial framing of the application was inappropriate and limited the effectiveness of the relief sought.

The court's final orders included the entitlement of the agent to the commission and the obligation of the company to account for the deposit moneys. The proceedings were to be reconstituted to ensure that the appropriate legal remedies could be awarded. The liquidator was instructed to account for the deposit moneys, and the agent was to receive the commission due, subject to any other legal or equitable considerations that may arise.

Orders