Miglani v MPKK Investments Pty Ltd & Anor
[2023] VSC 697
•29 November 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
COMMERCIAL LIST
S ECI 2022 05282
| AMIT MIGLANI | Plaintiff |
| v | |
| MPKK INVESTMENTS PTY LTD (ACN 657 069 139) | First Defendant |
| MADHUR GUPTA | Second Defendant |
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JUDGE: | Sifris JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 19 October 2023 |
DATE OF JUDGMENT: | 29 November 2023 |
CASE MAY BE CITED AS: | Miglani v MPKK Investments Pty Ltd & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 697 |
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PRACTICE AND PROCEDURE — Summary judgment — Appeal from Associate Judge dismissing summary judgment application by defendants — Whether claims pursuant to investment contract and Australian Consumer Law have real prospects of success — Whether any error in decision of Associate Judge — No error established — Appeal dismissed — Civil Procedure Act 2010, s 62, Supreme Court (General Civil Procedure) Rules 2015, r 77.06.
STATUTORY INTEPRETATION — Estate Agents Act 1980 — Meaning of ‘estate agent’ under s 4 discussed — P’Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42 discussed and applied.
CONTRACT — Uncertainty — Whether term that interest in property to be within percentage range uncertain.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Ribbands | Defteros Lawyers |
| For the Defendants | D Farrands KC with L Mills | Darrer Muir Fleiter |
HIS HONOUR:
A Introduction
The first defendant, MPKK Investments Pty Ltd (‘MPKK’), and the second defendant, Madhur Gupta (‘Gupta’), (together the ‘Gupta Parties’), appeal the ruling and orders of Associate Justice Barrett made on 26 May 2023 (‘Orders’) by which his Honour dismissed their application, as defendants, for summary judgment under s 62 of the Civil Procedure Act 2010.
By nine grounds of appeal,[1] the Gupta Parties submit that the Associate Judge erred. They contend that his Honour should have concluded that the claims of the plaintiff, Amit Miglani (‘Miglani’), in his statement of claim filed on 20 December 2022, have no real prospect of success and that judgment should have been entered for the Gupta Parties.[2]
[1]During the hearing of the appeal, the Gupta Parties indicated that ground 4 was not pressed.
[2]The parties to the proceeding have filed and served the following affidavits: as to the plaintiff, affidavits of Miglani dated 1 February, 23 March and 24 May 2023; as to the defendants, affidavit of Gupta dated 16 March 2023 and affidavits of Peter Darrer dated 16 March and 24 May 2023.
B The plaintiff’s claims
Miglani has made two claims.
The first claim, based on an agreement entered into on or about 27 July 2022 (the ‘Investment Agreement’), is against MPKK only (and not against Gupta) (the ‘Contractual Claim’).[3] Miglani alleges that the Investment Agreement in effect constituted them as partners and it was agreed that he, Miglani, would:
[3]Miglani also alleges that a non-party, Ashwani Jain (‘Jain’), was a party to the alleged Investment Agreement.
(a) undertake the process of locating and identifying properties which might represent investment opportunities for the partners;
(b) negotiate with the owners of any such identified properties so as to procure the opportunity to purchase that property at a price negotiated by him with the owners of the property; and
(c) receive a share in the property to be acquired, in the range of 10–20%, which would arise from his contributions as described in (a) and (b).
Miglani further alleges that he ‘identified and procured for the benefit of the partners, comprising himself together with MPKK and Jain, the opportunity to purchase [six] properties’.
Miglani gave evidence, amongst other matters, that:
(a) he previously operated a real estate agency which had extensive involvement in land sales in various regions of Melbourne;
(b) having lost his estate agent’s licence (as referred to below) he is attempting to regain his licence in the real estate industry;
(c) he told Jain and Gupta that he had ‘the experience, the knowledge and the contacts to be able to locate and procure opportunities to purchase properties which would have a potential profit opportunity’;
(d) Jain and Gupta both told him that ‘in return for [his] work in bringing the deal to [his] partners, [he] would be paid a fee from the “partnership”’;
(e) he told Jain and Gupta that he would provide his skill, expertise and knowledge to the partnership in order to enable the partnership to acquire properties; and
(f) he spent a lot of time travelling to properties and speaking to various property owners and as a result of his efforts he procured a number of opportunities for purchase.
As a consequence of what, on Miglani’s evidence, he did in the period 27 July to October 2022, and in the period mid-May to 19 August 2022 respectively, MPKK as purchaser entered into:
(a) a contract to purchase the property at 362 Portingales Lane, Romsey (the ‘Romsey Property’) for $1.85 million; and
(b) a contract to purchase the property at 155 Dore Road, Pakenham (the ‘Pakenham Property’) for $9 million.
On 3 May 2023, MPKK terminated the contract of sale for the Romsey Property. The purchase of the Pakenham Property remains extant.
The second claim, based essentially on the same facts, is that MPKK engaged in misleading or deceptive conduct in breach of s 18 of the Australian Consumer Law[4] (‘ACL’) and that Gupta has: aided and abetted; counselled and/or procured; been knowingly involved in such contraventions of the ACL by MPKK (the ‘ACL Claim’).
[4]Competition and Consumer Act 2010 (Cth) sch 2.
In September 2019, Miglani’s estate agent’s licence was cancelled for misconduct. He pleaded guilty to two charges relating to the use of trust money in breach of the Estate Agents Act 1980 (the ‘Act’). Miglani’s claims relate to work he alleges he did between 27 July and October 2022 while unlicensed.[5] In 2022, Miglani applied for a further licence. Consumer Affairs Victoria rejected his application.[6]
[5]At all material times since 15 September 2019, Miglani has not had, and does not have, an estate agent’s licence.
[6]On 12 October 2022, Consumer Affairs Victoria refused Miglani’s application to be granted an estate agent’s licence.
MPKK contends that the work done by Miglani falls squarely within the broad definition of ‘estate agent’ and, as he was admittedly unlicenced, he is not entitled to recover any commission or reward. The relevant provisions of the Act are referred to below. Accordingly, it is contended that the first claim has no real prospect of success. It is also contended that the Investment Agreement is uncertain in so far as it refers to an interest in the property in ‘the range of 10–20%’.
In relation to the second claim, the Gupta Parties contend that the representations — similar to the pleaded terms of the Investment Agreement — are not supported by Miglani’s evidence. They contend further that, as Miglani was unlicenced, he is not entitled to recover damages under the ACL.
Miglani contends that both issues are arguable and that summary judgment was correctly refused. There is, according to Miglani, a real prospect of success on the claim as formulated. The Associate Judge agreed with Miglani.
At a directions hearing prior to the hearing of the appeal, I suggested that the proceeding go straight to trial, before me, on all issues and on the date this appeal was due to be heard. Unfortunately, this suggestion was not embraced.
C The decision of the Associate Judge
After summarising the evidence and arguments submitted by the parties in relation to the first claim, the Associate Judge in an ex tempore ruling on 26 May 2023 (the ‘Reasons’) said:
The issues are factual because they will no doubt involve a close examination of the conduct engaged in by the plaintiff. But they are also legal insofar as they involve questions of the proper construction of the relevant provisions of the [Act] and how far they reach. As noted above, the defendants point to a number of factors which they say support the conclusion that Miglani’s conduct is caught by the [Act]. That may ultimately be so but I am not satisfied that the question can be answered at this stage on the material before me. In those circumstances, I am not satisfied that the contractual claim does not have a real prospect of success for this reason.[7]
[7]Reasons, 13.16–13.28.
In relation to the uncertainty issue, the Associate Judge said:
While there is a degree of uncertainty in the terms alleged and deposed to, I do not consider that there is no real prospect of success for the present purposes. The plea is that the plaintiff’s contractual entitlement would be within a range. The question of what that term means in the circumstances, and whether it adequately articulates a formula for recovery, will likely depend upon evidence given at trial as to what discussions took place, in relation to which there is likely to be extensive cross-examination.
…
While there is some force to the defendants’ submission that there is some vagueness and imprecision in the agreement pleaded and particularised, as stated above, I do not consider it is sufficiently clear that the agreement would not be enforceable because of any vagueness or uncertainty as alleged. As discussed further below, there is some scope for the plaintiff to address some concerns of the defendants by amended pleading with more generous particulars at least.[8]
[8]Ibid 14.23–15.1, 15.27–16.4.
Accordingly, the Associate Judge declined to order summary judgment for MPKK in relation to the first claim. Miglani has not filed any amended statement of claim.[9]
[9]Miglani has served a proposed amended statement of claim but it has not been filed. The proposed amendments were not referred to before me.
In relation to the second claim, the Associate Judge said:
I will deal next with the misleading and deceptive conduct claim. The defendants rely on three submissions in relation to the misleading and deceptive conduct claim. First, they submit that the representations alleged are not supported by Miglani’s own evidence. The representation is pleaded in the following terms:
Gupta and/or MPKK represented to Miglani that:
a. if Miglani identified suitable properties for purchase; and
b. negotiated with the owners of such properties for their sale at an agreed price; and
c. the agreed price was such that it was envisaged that a profit could be made by the parties to the investment agreement by the resale of the property or the sale of the rights contained in the contract of sale for the purchaser of the property;
then Gupta and/or MPKK as the intended purchaser of such a property would provide Miglani with an interest in the property and/or the rights to purchase the property, in the range of 10–20% of the overall value of the property, as a reward for Miglani's efforts in securing the opportunity to purchase the property.
The particulars to the paragraph merely provide the representations were oral. I consider that these particulars are inadequate and that the defendants are entitled to greater detail. It may be that such particulars, as should be provided, will accord with those particulars appended to the pleading as to the agreement that will be a matter for the plaintiff to consider. But the general allegations are broadly consistent with the contractual claim, and I do not consider it would be appropriate to summarily dismiss the proceeding for that reason.
The second basis upon which the defendants seek summary dismissal of the misleading and deceptive conduct claim is predicated on the submission that Miglani did not have an estate agent’s licence and therefore is not entitled to enforce or recover any entitlements to the moneys he claims. For the reasons stated above in relation to the application of the [Act], I am not prepared to find that the plaintiff has no real prospect of success for that reason.
The third submission is that, insofar as the representation is a representation as to future matters, MPKK would have reasonable grounds for making such representation in circumstances where Gupta believed that Miglani was running a real estate business, and therefore it would be reasonable to assume that he had an estate agent’s licence. It may be that such a plea will be raised in a defence to be filed by the defendants, but at present, it is not pleaded, and accordingly, I am not prepared to find there is no real prospect of success for that reason. In my opinion, the plaintiff has a real chance of success, and the defendants’ application for summary dismissal pursuant to s 62 must fail.[10]
[10]Reasons, 17.9–18.30.
D Grounds of appeal
There are nine grounds of appeal as follows:
(a) the learned Associate Judge misdirected himself as to his task generally (‘Ground 1’);
(b) misdirection as to task in relation to the application of the Act to the Contractual Claim (‘Ground 2’);
(c) failure to consider whole definition of ‘estate agent’ (‘Ground 3’);
(d) error as to the admissibility of evidence (‘Ground 4’). This ground was not pressed;
(e) failure to properly consider whether the alleged Investment Agreement is uncertain (‘Ground 5’);
(f) misdirection as to task in relation to the application of the Act to misleading and deceptive conduct claim (‘Ground 6’);
(g) evidence did not support the misleading and deceptive conduct claim (‘Ground 7’);
(h) misdirection as to task in relation to the application of the Act to misleading and deceptive conduct claim (‘Ground 8’);
(i) claims against Gupta (‘Ground 9’).
The nine grounds of appeal relate to three broad issues:
(a) First, that the Associate Judge erred by failing to determine there was no real prospect of success given that Miglani was acting as an estate agent while unlicenced, and accordingly was not entitled to sue for or recover or retain any commission in respect of the transactions (the Act, s 50(1)).[11] Grounds 1, 2, 3, 4, 6, 7, 8 and 9 relate to this issue.
(b) Secondly, in relation to the Contractual Claim only, that the Associate Judge erred by failing to determine that there was no real prospect of success given that the alleged Investment Agreement was void for uncertainty. Miglani alleges there was a term that he would receive a share in the property ‘in the range of 10–20%’. Grounds 1, 4, 5, 7 and 9 relate to this issue.
(c) Thirdly, the ACL Claim has no real prospect of success. Grounds 1, 6, 7, 8 and 9 relate to this issue.
[11]It is also an offence for an individual to: (a) exercise or carry on or advertise notify or state that he exercises or carries on or is willing to exercise or carry on the business of an estate agent; or (b) act as an estate agent; or (c) in any way hold himself out to the public as ready to undertake for payment or other remuneration (whether monetary or otherwise) any of the functions of an estate agent unless he is a licensed estate agent (the Act, s 12(1)).
An appeal from an associate judge is not a re-hearing de novo but rather in the nature of a review and the appellant must establish legal, factual or discretionary error before appellate power may be exercised.[12]
[12]Yin v Wu [2023] VSCA 130, [60] (Kyrou, T Forrest and Hargrave JJA).
In my opinion, for the reasons given, the Gupta Parties have not established error and the appeal must fail. The proceeding must go to trial.
EWas Miglani acting as an estate agent — the first broad issue (Grounds 1, 2, 3, 4, 6, 7, 8 and 9)
The Gupta Parties submitted before the Associate Judge and before me that Miglani was clearly acting as an ‘estate agent’, as the phrase is broadly defined in the Act and, as he is and was at the relevant time (admittedly) unlicensed, he is not entitled to recover any payment or commission (which includes any interest in property), whether pursuant to the Investment Agreement or the ACL.
Miglani submitted before the Associate Judge and before me that he was not acting as an ‘estate agent’, but as a party or partner to a contract entered into between parties or partners, with the intention of delivering benefits to each. He denies that he was conducting the business of an estate agent and fell within the offending provisions of the Act.
As noted, the Associate Judge held that the matter was sufficiently arguable and that summary judgment was inappropriate. The critical question for this appeal is whether the Gupta Parties have demonstrated error.
Consideration
There is, relevantly and so far as this appeal is concerned, very little dispute of fact and it is unnecessary to rehearse or consider the evidence in any great detail. The nature, character and extent of the work done by Miglani as contemplated by the Investment Agreement entered into by the parties is adequately set out in the statement of claim, supported by the evidence filed by Miglani as referred to above. The critical question is whether he was acting as an estate agent as defined. If he was not, he would potentially be entitled to relief under the Investment Agreement. If he was, he would not be entitled to any reward because he did not hold an estate agent’s licence, as required. It is first necessary to refer to the legislation.
Section 50(1)(a) of the Act is in the following terms:
An estate agent is not entitled to sue for or recover or retain any commission or money in respect of any outgoings for or in respect of any transaction unless—
(a)at all material times in relation to the transaction he or she is the holder of an estate agent’s licence; …
Section 4 of the Act defines ‘commission’ as follows:
commission includes fees charges reward or other remuneration whether monetary or otherwise;
Section 4 of the Act defines ‘estate agent’ as follows:
estate agent or agent means any person (whether or not he carries on any other business) who exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out to the public as ready to undertake the business of—
(a)selling buying exchanging letting or taking on lease of or otherwise dealing with or disposing of;
(b)negotiating for the sale purchase exchange letting or taking on lease of or any other dealing with or disposition of;
(c)collecting rents for—
any real estate or business on behalf of any other person;
There is no issue that Miglani was at all material times unlicensed or that the benefit referred to in the Investment Agreement falls within the broad definition of commission. The critical issue is whether he was acting or carrying on or conducting the business of an estate agent. More accurately or relevantly, however, is the question as to whether he has a real prospect of establishing that he was not acting as or carrying on or conducting the business of an estate agent.
At this point it is well to remember that the exercise before the Associate Judge was to identify whether there is a serious or real (as opposed to fanciful) issue to be tried and not to resolve it.
In my opinion, there is no error in the conclusion reached by the Associate Judge to the effect that the Contractual Claim has a real prospect of success in relation to this issue. Although not explicitly referred to — and keeping his determination more general — the critical issue, as acknowledged by the Gupta Parties, appears to me to be whether Miglani was conducting, carrying on or undertaking the business of an estate agent on behalf of another person. Although he was doing some of the work that estate agents normally do, as emphasised by the Gupta Parties and to which much of the evidence is directed, can it be said that he was, in the circumstances, carrying on or conducting the business of an estate agent and that the issue does not admit of any real doubt.
Although ‘one-off’ transactions involving work usually done by estate agents (and otherwise within the definition) do not fall within the definition of ‘the business of’ for the reasons given by Whelan JA in P’Auer AG v Polybuild Technologies International Pty Ltd[13] (‘P’Auer’), there is a real question as to whether more than one transaction, but involving the same client within the context of an investment agreement or partnership, involves an inevitable conclusion that one is acting or carrying on, conducting or undertaking business as an estate agent, requiring and having as a consequence a whole range of consumer protection measures.
[13][2015] VSCA 42, [73]–[97] (Ferguson JA agreeing at [105]–[106] and Kaye JA agreeing at [107]).
The Associate Judge considered that the issues were both factual (the nature and extent of the conduct engaged in by Miglani) and legal (the ambit and reach of the broad definition) and were properly to be determined at trial. Of course, the factual and legal matters are not unrelated.
In relation to the factual matters, the Gupta Parties relied on four matters arising mainly from the evidence given by Gupta. First, admissions made by Miglani to Gupta to the effect that he was running a real estate business. Secondly, Miglani introduced Gupta to various properties in order to derive remuneration. Thirdly, the evidence of Gupta’s solicitor, Peter Darrer, to the effect that the discussions between Miglani and Gupta were reported to him by Gupta. Finally, that a number of WhatsApp conversations evidence activity in relation to the acquisition of real estate that is usually performed by estate agents.
Miglani accepted that he had engaged in conduct in relation to the acquisition of real estate, as pleaded in his statement of claim (and to which much of the evidence is directed), but denied that he was conducting, carrying on or undertaking business as an estate agent for the purposes of the Act, by engaging in such conduct.
In relation to the legal issue, Miglani contends that on a proper consideration of the facts, there is a serious issue as to whether his conduct, in the context of the Investment Agreement or partnership, amounts to the carrying on or conduct of the business of an estate agent. The Gupta Parties contend that it does essentially because the conduct was not restricted to one transaction, but several.
The point is emphasised by Whelan JA in P’Auer. After referring to and accepting the analysis of Smith J in Garbett v Rosemen Investments Pty Ltd,[14] Whelan JA said:
[14][2002] VSC 575.
Smith J’s observation that the structure and content of the [Act] reveal it to be one directed to the regulation of people whose business it is to work as estate agents, referring in particular to the requirements to be fulfilled before a licence can be obtained and requirements imposed upon licensed real estate agents to maintain trust accounts, is significant. By way of amplification, the [Act]:
(a)does not contain a statement of objects but it does establish an Estate Agents’ Council whose statutory objectives include the promotion of appropriate standards of conduct and competency for persons in the ‘real estate industry’ (Pt IIA);
(b)provides for a comprehensive licencing regime (Pt III), which includes:
(i)a requirement to pass examinations and to undertake work experience of not less than the equivalent of one year’s fulltime employment before a person can be licenced (s 14);
(ii)a requirement that each application specify the address at which the applicant ‘intends to carry on business’ (s 17);
(iii)the consideration of each application by the Business Licensing Authority (s 21), with a power to impose conditions (s 21A);
(iv)an annual licence fee payable on the anniversary of the first licence grant (s 23);
(v)provisions governing management of every estate agency office (s 30); and
(vi)a public register of licensed estate agents (s 33);
(c)regulates the activities of estate agents (Pt IV), by provisions which include:
(i)a requirement to produce the licence on demand to specified persons (s 41(1));
(ii)a requirement to display a copy of the licence ‘at every premises where [the agent] carries on his business’ (s 41(2)); and
(iii)the prohibition on recovery of commission if unlicensed (s 50);
(d)regulates the finances of estate agency businesses (Pt VI), by provisions which include:
(i)a requirement to establish a trust account if money is received on behalf of another (s 59);
(ii)the annual auditing of that trust account (s 64); and
(iii)comprehensive powers given to inspectors under the Fair Trading Act 1999 to monitor an ‘estate agency business’ through inspecting documents, requiring the provision of information and entering and searching premises (Pt VI Div 2).
These provisions reveal the [Act] to be, as Smith J observed, one directed at the regulation of an ongoing business, not at ‘one off’ transactions. They are generally inconsistent with application to a person engaged in a ‘one off’ transaction. It seems to me that it is almost inconceivable that some of them, such as the requirement to pass examinations, to complete at least the equivalent of a year’s work experience before being licenced and to display a copy of the licence at every business premises, were intended to apply to a person engaged in a ‘one off’ transaction.[15]
[15]P’Auer [2015] VSCA 42, [93]–[94].
The extent, ambit and reach of this critical phrase (carrying on, conducting or undertaking the business of) needs to be fully tested as a matter of statutory interpretation and on the basis of the facts of this case established at trial after all of the evidence is considered. I am not satisfied that any error is demonstrated in relation to the issue. It cannot be said that there is no real prospect of a finding that Miglani was not carrying on or conducting such business so as to require all the consumer protection matters identified.[16] It is not at this stage desirable to conclude that Miglani was in effect and in the circumstances conducting an ongoing business as an estate agent, a fundamental matter that underpins the operation of the relevant provisions. The issue is far from clear and exercising the required caution, I do not regard the decision of the Associate Judge as attended with sufficient doubt.
FIs the Investment Agreement void for uncertainty — the second broad issue (Grounds 1, 4, 5, 7 and 9)
[16]One transaction does not require such protection. What about one client in a partnership context? What about a business set up for one large transaction? Although cases are largely fact specific, these issues need to be grappled with and are not appropriately dealt with in a summary manner. There is also the competing public policy issue relating to the extent to which a person should be restrained from practising his or her trade or profession despite being unlicenced.
The Gupta Parties submitted before the Associate Judge and before me that the Investment Agreement was void for uncertainty because Miglani’s interest was to be ‘in the range of 10–20%’, a contended inherently uncertain position.
Miglani submitted before the Associate Judge and before me that the phrase was sufficiently certain and well able to be made certain and applied by the parties. The Associate Judge agreed. Again, the critical question is whether the Gupta Parties have demonstrated error.
Consideration
In his affidavit of 1 February 2023, Miglani gives the following evidence:
Jain and Gupta both said that they were keen to participate in a form of partnership between the three of us for the purposes of acquiring these opportunities that I would procure. It was said by Jain and Gupta that in return for my work in bringing the deal to my partners, I would be paid a fee from the ‘partnership’. That is to say, the fee would be a commercial reward to me for the work undertaken by me in bringing the opportunity to my partners, but that as a partner, I would also bear part of the cost of that fee. I would also receive an equity in the land that I had sourced and procured for the partnership to purchase. The percentage of that equity would be determined at the time of the purchase of the property or shortly before the purchase of the property and would be over and above the fee that would be paid to me for the work that I had previously undertaken to source the property. It was a means of providing myself with some income as opposed to having all of my share tied up in equity.
Jain and Gupta both agreed to my proposal. Jain said that he was willing to provide a financial contribution. I said that I would provide my skill and expertise and knowledge to the partnership in order to enable the partnership to acquire properties for the purposes of on-selling these properties at a profit.
The percentage allowance for my contribution was said to be in the vicinity of 10–20% for each property. It would however depend upon the property and the price paid for it. Jain agreed that he would also acquire a similar percentage and that his amount would be determined by a reference to his actual financial contribution to the acquisition.
Gupta agreed that he would be responsible for financing the balance of the acquisition and that he would take up the remaining balance of equity. We discussed the need to secure lending in order to allow us to spread our acquisition. Gupta said that he could use his company [MPKK] as the vehicle to acquire the properties. Jain and I agreed.
In order to determine whether a percentage range, or any range, is able to be made certain, it is necessary to undertake a detailed consideration of the whole of the evidence of the parties, including cross-examination. It is clear that discussions took place. Miglani said that the percentage would depend on the property and the price paid for it. It will be relevant to consider the precise nature of the discussions in relation to which particular factors would lead to the lower percentage and which factors would lead to the higher percentage, including the factor referred to by Miglani. The evidence given by Miglani, referred to above, is to an extent conclusionary and incomplete. No evidence is given by Jain. In any event, the parties are obliged to engage in bona fide discussions as to the appropriate percentage, in order to bring about a result consistent with their expressed intention.
I do not regard it as fanciful to suggest that Miglani would be entitled to a minimum of 10%.[17]
[17]This may be the intended default position of the parties. No such implied term has been pleaded at this stage, although it may well be open. There is a very real danger in summary judgment proceedings in being strictly confined to the pleadings and evidence at a very early stage of the proceeding.
The issue involves both factual and legal issues and is not suitable for summary determination. Rather, there are real issue to be determined.
G The ACL Claim (Grounds 1, 6, 7, 8 and 9)
I do not consider that the Associate Judge was in error in deciding that there was a real prospect of success in the ACL Claim, partly for the reasons given in relation to the first claim, particularly as to whether Miglani was acting as an estate agent, which formed a critical basis of the Gupta Parties’ attack on the ACL Claim.
I do not accept that Miglani’s evidence does not support the ACL Claim. No doubt further particulars of oral representations are required. However, the alleged representations are, as found by the Associate Judge, ‘broadly consistent with the contractual claim’.[18]
[18]Reasons, 18.5–16.6.
Accordingly, there is a real issue to be determined and I am not satisfied that the decision of the Associate Judge is attended with sufficient doubt.
H Disposition
The above consideration disposes of the overlapping individual grounds.
The appeal will be dismissed. I will hear from the parties as to costs.
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