Moore v Luxury Boat Holdings Pty Ltd - [2020] WASCA 144

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MOORE -v- LUXURY BOAT HOLDINGS PTY LTD [2020] WASCA 144
CORAM:   MURPHY JA
BEECH JA
HILL J

HEARD:   19 AUGUST 2020
DELIVERED          :   4 SEPTEMBER 2020
FILE NO/S:   CACV 98 of 2019
BETWEEN:   BRADLEY MOORE
Appellant
AND
LUXURY BOAT HOLDINGS PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   STAUDE DCJ
Citation: LUXURY BOAT HOLDINGS PTY LTD -v- MOORE [2019] WADC 108
File Number            :   CIV 576 of 2018

Catchwords:

Contract - Agency - Claim for commission - Sale of motor vessel - Agent appointed to sell motor vessel - Agent introduced eventual purchaser during term of agency agreement - Whether judge erred in concluding there was sufficient evidence to find agent was an effective cause of the sale - Whether judge erred in finding purchaser kept motor vessel in mind - Whether judge erred in finding that chain of causation for sale of motor vessel was not broken

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	N Ferrett QC
Respondent	:	S M Davies SC & D Chandler

Solicitors:

Appellant	:	Chalmers Legal Studio Pty Ltd
Respondent	:	Lemonis & Tantiprasut Lawyers

Case(s) referred to in decision(s):

Allan v Leo Lines Ltd [1957] 1 Lloyd's Rep 127
Berben v Hedditch [1982] ANZ ConvR 535
Berezovsky v Edmiston & Co Ltd [2011] 1 Lloyd's Rep 419
Birtchnell v Morris [1923] VR 201
Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2009] NSWCA 190
Clark Boyce v Mouat [1994] 1 AC 428
Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117
Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993
LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52
LJ Hooker v Dominion Factors Pty Ltd (1963) SR (NSW) 146
Luxury Boat Holdings Pty Ltd v Moore [2019] WADC 108
Moneywood Pty Ltd v Salomon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351
Nocton v Lord Ashburton [1914] AC 932

JUDGMENT OF THE COURT:

Introduction

This is an appeal against a decision of Staude DCJ in Luxury Boat Holdings Pty Ltd v Moore[1] (primary decision).
[1] Luxury Boat Holdings Pty Ltd v Moore [2019] WADC 108.
The primary proceedings concerned a claim for commission by the respondent (LBH) in relation to the sale of a boat owned by the appellant (the Owner) pursuant to an agency agreement made on 23 August 2017 (Agency Agreement). The agreement provided, relevantly, that LBH was entitled to commission if a sale was completed and the buyer in the sale was introduced to the Owner by LBH. The judge held that the Owner was liable to LBH for the payment of the commission and made orders accordingly. In essence, his Honour (1) construed the agreement as requiring that LBH was the effective cause of a sale for it to be entitled to a commission on the sale; and (2) found that LBH was the effective cause of the sale.
The Owner appeals that decision, contending that LBH failed to prove that it was the effective cause of the sale. LBH resists the appeal and has also filed a notice of contention. By its notice of contention LBH alleges in effect that (1) even if the grounds of appeal are successful, the judge erroneously construed the Agency Agreement in requiring that LBH be the effective cause of a sale when the contractual criterion is that it introduce the buyer, and (2) it is entitled to the commission on the true construction of the Agency Agreement.
For the reasons which follow, the appeal should be dismissed. The judge was correct to find that LBH was the effective cause of the sale. It is unnecessary to deal with the notice of contention.

The primary decision

Background

The boat in question, known as 'Le Bateau' (the Boat), is a luxury vessel. It was commissioned by the Owner and his wife through a business known as Horizon Motor Yachts Australia (Horizon) which operates in Queensland. The Boat was acquired by the Owner in 2014.[2]
[2] Primary decision [3].
On 14 September 2016, the Owner appointed Horizon as his agent to sell the Boat under an 'Authority to sell by central agency'.[3]
[3] Primary decision [4].
LBH trades under the name of 'One Brokerage' and its directors include Mr Evan Moore. In September 2016, Mr Evan Moore was informed by Mr Mark Western of Horizon that the Boat was listed for sale. Mr Western suggested that LBH may be able to find a buyer for the Boat in Western Australia where the Boat was located.[4]
[4] Primary decision [5] - [6].
Mr Evan Moore then made contact with the Owner by telephone and arranged to inspect the Boat at South Perth Yacht Club. Mr Evan Moore suggested to the Owner that, as a local marine brokerage, LBH may be able to find a potential purchaser for the Boat.[5]
[5] Primary decision [7].
Mr Evan Moore inspected the Boat on 12 October 2016. On 13 October 2016, Mr Evan Moore emailed the Owner, confirming their discussion to the effect that LBH would promote the Boat to a number of its customers, but, at the Owner's request, would not advertise the Boat online. The email indicated a brokerage fee of 5.5% (including GST) would apply upon sale, and named a number of potential buyers.[6]
[6] Primary decision [9].
Notwithstanding the Owner's request, LBH did advertise the Boat online and, according to Mr Evan Moore, contacted a number of potential buyers. During the period October 2016 to August 2017 there was no formal agency agreement made between the Owner and LBH.[7]
[7] Primary decision [10].
On 18 August 2017, Mr Evan Moore was contacted by Mr Chris Woodward, whose firm provided marine services to a Mr Stephen Hobson. Mr Woodward was described as Mr Hobson's 'boatman'. At that time, Mr Woodward had been instructed by Mr Hobson to look at boats for sale that were larger than the boat Mr Hobson then owned. Mr Woodward contacted LBH and another marine broker. Mr Woodward had known Mr Evan Moore of LBH for a number of years. Mr Evan Moore told Mr Woodward about the Boat and invited him to inspect it.[8]
[8] Primary decision [11] - [12].
On 19 August 2017, Mr Evan Moore emailed the Owner and said that he had a potential buyer in Mr Hobson. He said, 'I have put your boat to him and he would like to take a look'.[9]
[9] Primary decision [13].
On 22 August 2017, Mr Evan Moore emailed the Owner, proposing a 'non‑central agency agreement' in a form annexed to the email. The document indicated a proposed brokerage fee of 5.5% (inclusive of GST) and a list price of $5.95 million.[10]
[10] Primary decision [14].
On the same day, the Owner made some amendments, signed the document and returned it to Mr Evan Moore. On 23 August 2017, Mr Evan Moore signed the amended document on behalf of LBH. This constituted the Agency Agreement.[11]
[11] Primary decision [17].
On 25 August 2017, Mr Woodward, on behalf of Mr Hobson, inspected the Boat thoroughly with Mr Evan Moore and the Owner. Mr Woodward considered that the Boat was 'a beautiful, beautiful boat' but feared that it was not the size that Mr Hobson was looking for. On 26 August 2017, Mr Evan Moore sent 48 photographs of the Boat to Mr Woodward by email.[12]
[12] Primary decision [18] - [19]; GB 22 - 70.
Around this time Mr Evan Moore also offered to show Mr Woodward another boat moored at Hillarys, called 'Mineral Water'. Mr Hobson together with Mr Woodward inspected 'Mineral Water'.[13]
[13] Primary decision [19], [26].
By 28 August 2017, Mr Woodward had also located another potential boat for Mr Hobson in Hong Kong (Hong Kong vessel) and made inquiries in that regard.[14]
[14] Primary decision [20].
On 28 August 2017, Mr Woodward emailed Mr Hobson, reporting on his inspection of the Boat on 25 August 2017 and sending him the photographs of the Boat. He reported that he found it to be really well‑appointed, in good condition throughout and without any problems as far as he could see, but he was not sure whether the layout would suit Mr Hobson. He also wrote:[15]
I'll talk to you more about her when we next speak but for 5.9 [million] I don't think so, the boat doesn't blow your mind in appearance that's not to say at the right price it wouldn't be an option but would need to be considerably less and I got the feeling he won't budge too much [sic]. (emphasis added)
[15] Primary decision [21]; GB 72.
Following receipt of this email, also on 28 August 2017, Mr Hobson emailed Mr Woodward and said that 'his thoughts' were that the Hong Kong vessel was 'the boat for me'. He said his plan was to travel to London on Friday (1 September 2017) and that (subject to confirmation of arrangements) he would be in Hong Kong to inspect the Hong Kong vessel with Mr Woodward on 16 September 2017.[16]
[16] GB 71.
On 3 September 2017, Mr Hobson emailed Mr Woodward and said that he had been thinking about 'the two boats in question' and 'quality problems'. The email referred to two vessels - the Hong Kong vessel and 'Mineral Water'. The email said, in relation to the Hong Kong vessel, that Mr Hobson was 'losing confidence in the point of the visit'. The email also referred to 'Mineral Water' having been purchased by 'Mark' in 2011 and Mr Hobson requested Mr Woodward to find out if 'Mark' was 'willing to do a quick cash sale'. He also said:[17]
I would like with Mark's permission subject to confidentiality for you to take as many photos as you can and get them to me whilst I'm away so at least I've got a good idea in my head to compare with before Hong Kong.
There are extreme cost and time benefits of buying and soliciting a local boat but she's got to be what I'm looking for and I know you know Chris what I'm looking for.
[17] GB 89.
Mr Woodward responded to Mr Hobson by email on 4 September 2017, referring to the need to 'consider all options as the decision needs to be made carefully.'[18]
[18] Primary decision [39]; GB 88.
On 4 September 2017, Mr Evan Moore emailed the Owner, informing him that Mr Hobson had gone to Europe for a few weeks, so he would not get any 'proper feedback' until Mr Hobson returned.[19]
[19] Primary decision [23].
Nothing further occurred in relation to the potential sale of the Boat at that time and the Agency Agreement came to an end on 22 September 2017.[20]
[20] Primary decision [23].
On 26 September 2017, the Owner emailed Mr Evan Moore and said, '[F]or the sake of clarity you [sic] agency agreement has expired, thank you for your efforts'. The Owner said that this email was sent to Horizon as well. On the same day, the Owner emailed Mr Western of Horizon and said:[21]
Mark, now Evan has no interest in my boat I need to get a local agent involved, Trevor Parkin [sic] is the obvious choice.
[21] Primary decision [24].
Meanwhile, Mr Hobson continued to look around for a new boat. He went to London in September 2017, then to the Cannes Boat Show and then to Hong Kong, where he met Mr Woodward for an inspection of the Hong Kong vessel.[22]
[22] Primary decision [25].
In October 2017, Mr Hobson also went to Queensland to inspect another Horizon vessel (Queensland vessel).[23]
[23] Primary decision [25].
On 11 October 2017, Mr Hobson indicated to Mr Woodward that he was still considering the Hong Kong vessel and the Queensland vessel.[24]
[24] Primary decision [26].
After inspecting the Queensland vessel, Mr Hobson looked at an advertisement for the Boat on the internet. Mr Trevor Parkins was named as the contact person. Mr Hobson knew Mr Parkins was employed by another firm (Yachts West).[25] Yachts West had been appointed by the Owner as an agent to sell the Boat by virtue of an agency agreement dated 15 October 2017.[26]
[25] Primary decision [27].
[26] Primary decision [28].
Mr Hobson directed Mr Woodward to arrange an inspection of the Boat.[27] His evidence was:[28]
I'd had three other vessels that I'd looked at and I was getting keen to try and buy something so it was worth reviewing [the Boat] myself.
[27] Primary decision [29].
[28] ts 123.
Mr Hobson personally inspected the Boat with Mr Woodward on 27 October 2017. Mr Hobson was impressed with the Boat. The asking price was $5.35 million by that stage. On 28 October 2017, Mr Hobson emailed Mr Parkins, copied to Mr Woodward, and offered $4.9 million. Mr Parkins suggested that he go to $5 million. Mr Hobson amended his offer to $5 million and the offer was accepted on 29 October 2017.[29]
[29] Primary decision [29].
There was an issue at trial as to when Mr Hobson first became aware that the Boat was for sale. His Honour did not regard Mr Hobson's evidence as reliable. The judge found the following facts:[30]
1.Mr Woodward was told that the Boat was for sale by Mr Evan Moore on behalf of LBH.
2.Mr Hobson did not see an internet advertisement for the sale of the Boat until after Mr Woodward's inspection and report to Mr Hobson on 28 August 2017.
3.Mr Hobson probably saw the advertisement for the sale of the Boat sometime after 15 October 2017 when Yachts West was the appointed agent.
4.Mr Hobson kept the Boat in mind as a potential acquisition having had the benefit of Mr Woodward's detailed inspection on 25 August 2017 and Mr Woodward's report of 28 August 2017, and at no time dismissed it as a possibility. The judge also referred to the email of 4 September 2017 outlined in [21] above.
[30] Primary decision [37] - [40].

The Agency Agreement

The Agency Agreement incorporated a 'Reference Schedule' which, among other things:[31]
1. states 'Expires 22 September 2017'.
2. refers to LBH as the Broker, trading as One Brokerage.
3. refers to the Owner as the Seller.
4. refers to the vessel for sale as the Boat.
5. refers to a brokerage fee of 5.5% (including GST) of the sale price with 75% payable to LBH and 25% payable to Horizon.
6. refers to a list price of $5.95 million.
7. refers to the 'type of agency' as 'Non Central Agency'.
[31] GB 9 - 13.
The Agency Agreement also contained 'Standard Conditions' including the following:
2.APPOINTMENT OF AGENT
2.1The Seller appoints the Broker as its agent to sell the Vessel for the List Price and or such other price as directed or agreed to by the Seller on such terms as the Seller agrees in writing with the Broker.
2.2On the Date of Completion of a sale, the Seller will deliver possession of the Vessel to the Buyer at the Place of Delivery in exchange for the Buyer paying the Seller the List Price or such other price as directed or agreed to by the Seller.
…
4.BROKER'S RIGHTS
4.1The Seller grants the Broker permission to:
(a)Board the Vessel for inspection purposes.
(b)Operate the Gear including the engine(s) and electronics for demonstration purposes … ;
(c)Motor or sail the Vessel for demonstration purposes; and
(d)Take such other reasonable steps in relation to the Vessel as may in the Broker's reasonable opinion be necessary to further the prospective sale of the Vessel.
(e)And will indemnify the Broker whilst lifting the vessel for Inspection, Sea Trials, Mechanical Inspection and working the Vessel on behalf of the Seller in an effort to sell the Vessel.
4.2The Broker is not liable for any damage or mechanical or other failure whatsoever and howsoever arising to the Vessel or its Gear which occurs or becomes apparent while the Vessel is under the Broker's control provided such damage not caused by the Broker's negligence or deliberate acts or omission.
4.3The Seller grants the Broker permission to engage other brokers to assist in selling the Vessel on a conjunction basis.
5.BROKER ACTING AS AGENT
5.1The Seller agrees that the Broker will act as an agent of the Seller to sell the Vessel.
5.2The Broker is authorised to market the Vessel for sale at the List Price as in Item I of the Reference Schedule or such other price as directed or agreed to by the Seller.
5.3The Seller acknowledges that the relationship between the Seller and the Broker will not in any circumstances give rise to a bailment.
5.4The Broker may store and display the Vessel at the Location of Vessel and may move the Vessel to any other place and operate the Vessel in any manner that is reasonably suitable, prudent and safe having regard to all the circumstances at the time.
…
6.2If 'Non Central Agency' in Item F of the Reference Schedule is marked, this clause 6.2 applies. The Seller appoints the Broker as its agent to offer the vessel for sale either directly or through other brokers as the Broker may choose to appoint from the date of this Agreement referred to in Item A of the reference schedule. The Seller is liable to pay the Broker the Brokerage Fees if:
(a)a Sale is completed and the buyer in the Sale is introduced to the Seller by the Broker or other brokers appointed by the Broker under this Agreement; or
(b)A Sale is terminated and the Broker or other brokers appointed by the Broker under this agreement procured the Sale and the Sale is not completed due to the buyer's default and the deposit, if any, paid by the buyer is forfeited to the Seller.
The Seller is not liable to pay the Broker the Brokerage Fees if the buyer in the Sale is found by the Seller or introduced to the Seller by a person other than the Broker or other brokers appointed by the Broker under this Agreement. This Non‑Central agency will continue until determined in accordance with cl 14.
…
14.TERMINATION OF AGENCY
14.1The Seller may only terminate the agency created by this Agreement by giving the Broker thirty (30) days written notice in advance.
14.2Termination does not affect the right of the Broker to claim any Brokerage Fees for introductions occurring during the term of this Agreement.
14.3In addition to any other rights accruing to the Broker, the Broker is entitled to recover from the Seller … and other expenses incurred if the Seller terminates this agency prior to the time specified in item G of the Reference Schedule. [sic]

The judge's findings on liability

LBH called Mr Evan Moore as a witness. The Owner gave evidence himself and called Mr Hobson and Mr Woodward as witnesses. Counsel for the Owner foreshadowed calling, but did not call, evidence from Mr Parkins.[32]
[32] ts 157.
The judge found that on the proper construction of cl 14.2 of the Agency Agreement, termination of the Agency Agreement did not affect LBH's right to claim the brokerage fee if the introduction was made during the term of the agreement.[33]
[33] Primary decision [42], [54].
The judge also found that, as a matter of construction or by implication of a term in the Agency Agreement, LBH was only entitled to a brokerage fee if it was the effective cause of the sale.[34] The judge referred to LJ Hooker Ltd v WJ Adams Estates Pty Ltd;[35] Moneywood Pty Ltd v Salomon Nominees Pty Ltd[36] and Challenger Group Holdings Ltd v Concept Equity Pty Ltd.[37]
[34] Primary decision [99] - [100].
[35] LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52, 58, 67.
[36] Moneywood Pty Ltd v Salomon Nominees Pty Ltd [2001] HCA 2; (2001) 202 CLR 351.
[37] Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2009] NSWCA 190 [78].
The judge further found that LBH was the effective cause of the sale. The judge said:[38]
I find that Mr Evan Moore introduced Mr Hobson. He was able to do so through his network of boating contacts that included Mr Hobson's trusted boatman Mr Woodward. But for the termination of the agency agreement, Mr Hobson would have completed the sale through Mr Evan Moore.
Mr Parkins, with no disrespect, did nothing more to sell [the Boat] than show Mr Hobson over [the Boat] and deal with him by email with respect to his two offers. Mr Hobson was by that time keen to buy. He had eliminated the other vessels he had considered. He had been advised of the merits of [the Boat] by Mr Woodward whose opinion he valued. Mr Evan Moore's introduction had not ceased to have a causative effect either by the passage of time, or by reason of disinterest on the part of Mr Hobson, or by any actions by Mr Parkins that could be said to have broken the chain of causation.
Notwithstanding that Mr Parkins concluded it, Mr Evan Moore, on behalf of the plaintiff can be found in those circumstances to have effectively brought about the sale by his efforts.
I am satisfied that the entitlement of the plaintiff to the claimed brokerage has been established on the facts, [the Boat] having been sold and [LBH] having introduced the purchaser and been the effective cause of the sale.
There should be judgment for 75% of the agreed brokerage fee of 5.5% (including GST) of the sale price of $5 million, being $206,250.00. Interest at 6% per annum from 6 November 2017, the date of settlement of the sale, to date (641 days) is $21,732.
[38] Primary decision [110] ‑ [114].

The grounds of appeal and the parties' submissions

Grounds of appeal

There are two grounds of appeal. Ground 1 alleges an error of law. It alleges that the judge 'erred in law in concluding there was sufficient evidence to support a finding that [LBH] was the effective cause of the [sale] of [the Boat]'.
Ground 2 alleges two errors of fact. Ground 2.1 alleges that the judge erred in finding that Mr Hobson kept the Boat in mind as a potential acquisition during the period between 25 August 2017 and 27 October 2017.[39] Ground 2.2 alleges that the judge erred in finding that it could not be said that the action of Mr Parkins on behalf of Yachts West broke the chain of causation for the sale of the Boat to Mr Hobson.[40]

Appellant's submissions

[39] Reliance is placed on ts 131, 135 and the emails referred to in [18] ‑ [21] above.

[40] Reliance is placed on ts 122 - 125.

In written submissions, without reference to either ground of appeal, the Owner contended that the Agency Agreement properly construed required LBH 'to work for its commission, not merely provide a name of a person who might, later, and due to the persuasive efforts of a subsequent agent, buy the boat'.[41]
[41] Appellant's written submissions, par 18; WB 9.
The Owner also submitted, without reference to either ground of appeal:[42]
The learned trial judge concluded that '[b]ut for the termination of the agency agreement, Mr Hobson would have completed the sale through Mr Evan Moore' but that was not supported by the evidence. No such suggestion was made to Mr Hobson in cross-examination.
More fundamentally, the conclusion betrays the error in his Honour's approach to the question of effective cause. It was contrary to the authorities identified by Gummow J in Moneywood Pty Ltd v Salomon Nominees Pty Ltd to the effect that it is not enough that the transaction probably would not have been entered into but for the original introduction. The question is not whether Evan Moore could have caused the sale to be completed. Rather, the question is whether he did cause the sale. Evan Moore did not, to paraphrase Gummow J in Moneywood bring about a state of affairs giving rise to the contractual right to the commission.
The advice that Mr Hobson received from Mr Woodward after the first inspection was that it was not the boat for him. Mr Hobson acted consistently with that advice, deciding to inspect other boats in Hong Kong and on the east coast of Australia. Two months later, when he was browsing the 'Boatpoint.com' website, he saw Mr Parkins' advertisement for the boat in question. There was no suggestion that he specifically went looking for [the Boat] on the website.
There is no suggestion that the boat was still advertised by [LBH] in October 2017. The only way that it could have been found on the internet by Mr Hobson at that point is through Mr Parkins' advertisement. It was not suggested to Mr Hobson that if he had not found that advertisement, he would have independently sought out the boat through other means. In those circumstances, it is impossible to conclude that the sale would have occurred regardless of Mr Parkins' having advertised the boat.
Because it is impossible to conclude that the sale would have occurred without Mr Parkins' advertising the boat, it follows that [LBH] cannot have brought about the state of affairs giving rise to the sale, and thus to the right to the commission. (emphasis in original)
[42] Appellant's written submissions, pars 20 - 24; WB 9 - 10.
In essence, the Owner's submission had two steps. First, on the evidence the proper conclusion is that without Mr Parkin's internet advertisement of the Boat, the sale would not have occurred. In support of this first step, the Owner submitted that Mr Hobson gave no evidence that he was looking for the Boat when he saw it on the internet. Secondly, the Owner contended, it necessarily followed from the first conclusion that LBH cannot be said to have been the effective cause of the sale.[43]
[43] Appellant's written submissions, par 23; WB 10; appeal ts 4, 9 - 10.
In the Appellant's Reply to the notice of contention (but apparently with intended reference to ground 2 of his own appeal), the Owner posed and answered a rhetorical question as follows:[44]
[W]hy does an inspection by Mr Woodward instigated by Mr Evan Moore, an unfavourable review by Mr Woodward, Mr Hobson's peripatetic effort to inspect other boats, and Mr Hobson's happening upon Mr Parkins' advertisement together justify the inference that Mr Hobson had always kept [the Boat] in mind?
…
[The Owner] respectfully (and unsurprisingly) submits that they simply do not.
[44] Appellant's Reply to Notice of Contention, pars 29, 31; WB 41 - 42.
In oral submissions, the Owner accepted that success in the appeal relied upon him establishing his challenge, by ground 2.1, of the judge's inference that Mr Hobson kept the Boat in mind during the two months from 25 August 2017 to 27 October 2017.[45]

Respondent's submissions

[45] Appeal ts 3.

LBH effectively contended that the judge's conclusion that LBH was the effective cause of the sale was correct for the reasons given by the judge. LBH also submitted that the judge's conclusion was correct having regard to the decision of Berezovsky v Edmiston & Co Ltd.[46]
[46] Berezovsky v Edmiston & Co Ltd [2011] 1 Lloyd's Rep 419.

Disposition of appeal

Effective cause - principles

On the judge's approach to the construction of the Agency Agreement (upon which the Owner's grounds of appeal are premised) LBH had to establish that it was an effective cause of the sale as that concept is understood in the case law concerning agency commissions. The concept of effective cause has often been called in aid to entitle an agent to commission in cases where, instead of the straightforward case of the introduced party becoming the purchaser, a more complex fact situation has arisen.[47] One example is where, after the expiry of the original agency agreement, the principal directly or through another agent manages to sell the property.[48]
[47] WJ Adams Estates (76).
[48] G E Dal Pont, Law of Agency (3^rd ed, 2014) [16.12].
An effective cause is established where the relation of buyer and seller is really brought about by the act of the agent, even though the actual sale has not been effected by the agent and it is seldom conclusive that there were other events which could each be described as a 'cause' of the sale.[49] It is not enough that the engagement of the agent to find or introduce a purchaser was itself 'a step without the taking of which the sale would not have been effected',[50] or merely to establish that 'the transaction probably would not have been entered into but for the original introduction by the agent'.[51] Rather, the agent's efforts must have 'continued to influence' the purchaser in the decision to buy or have 'flowed through' to the purchaser so as to cause the ultimate sale.[52] That situation may be contrasted with one where there is such a discontinuity between the act of the agent and the later sale of the property that the agent's initial introduction, as between the agent and his or her principal, cannot be said to be an effective cause of the sale.[53] Nevertheless an introduction may be regarded as an effective cause of the sale even though the principal may not be aware when selling that the buyer was introduced to the property by the agent and even though the principal's own efforts, directly or through another agent, have effectively contributed to the resulting sale.[54] An agent may also be the effective cause of sale even though the principal sells to the purchaser introduced by that agent at a price lower than the limit that had been given to the agent.[55]
[49] WJ Adams Estates (86); Moneywood [85].
[50] Moneywood [82].
[51] Moneywood [83].
[52] Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117 [39].
[53] LJ Hooker v Dominion Factors Pty Ltd (1963) SR (NSW) 146, 149.
[54] WJ Adams Estates (58 - 59).
[55] Birtchnell v Morris [1923] VR 201, 209.
Like all questions of causation, what is the effective cause of the sale is ultimately a question of fact.[56] In Berben v Hedditch, Moffitt P observed:[57]
The question is whether what the agent did brought about the particular sale, as it in fact occurred. This requires a consideration and evaluation of all circumstances which may have had some causal relationship with the sale.
The introduction may be the critical factor in some cases, as where the sale is of an unusual nature in which the vendor's problem was to find a person who may be interested in the particular property. In very many cases this will not be so, as where there are many properties of the same general class in one area on the market and there are many persons actively seeking to buy a property of that class in such area and procuring the sale depends on the efforts of a particular agent in persuading one of the interested persons to buy the particular property on the terms that are or are made available. While an introduction to the property must precede any purchase, on an examination of the forces which led to the sale it may be found that the introduction had nothing to do with procuring the sale and was not an effective cause of it.
[56] WJ Adams Estates (68), (86).
[57] Berben v Hedditch [1982] ANZ ConvR 535, 536 ‑ 537; compare Allan v Leo Lines Ltd [1957] 1 Lloyd's Rep 127, 132.
Because ground 2 challenges an intermediate finding of fact, it is convenient to begin with that ground.

Ground 2

Ground 2 alleges, by its two subgrounds, two errors of fact. Neither has any merit.
Ground 2.1 challenges the judge's finding that Mr Hobson kept the Boat in mind in the period 25 August 2017 to 27 October 2017. The judge had the advantage of observing and hearing Mr Hobson give evidence, and only in exceptional circumstances ought an appellate court differ from a finding of fact made by the trial judge about the state of mind of a witness.[58] That is because, consistently with the High Court's observations in Lee v Lee,[59] such a finding is based on, primarily, the judge's impressions as to the credibility and reliability of the witness, assessed in the context of the primary facts or inferences from primary facts. In Lee, the plurality said:[60]
A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge's findings unless they are 'glaringly improbable' or 'contrary to compelling inferences' is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, 'in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge'. (citations omitted)
[58] Nocton v Lord Ashburton [1914] AC 932, 957; Clark Boyce v Mouat [1994] 1 AC 428, 436 ‑ 437; JD Heydon, Cross on Evidence (11^th ed, 2017) [1150], page 465.
[59] Lee v Lee [2019] HCA 28; (2019) 93 ALJR 993.
[60] Lee [55].
Moreover, and in any event, the inference drawn by the judge was not only open but correct, given that:
1.Mr Woodward had inspected and reported on the Boat only nine weeks earlier in terms which were to a considerable degree favourable, although subject to certain reservations as to size and layout particularly in the context of the then asking price.
2.Mr Hobson's inspections (including through Mr Woodward) had been limited to four boats - the inspections did not extend to a large field of potential candidates.
3.Mr Hobson's 'thoughts' on 28 August 2017 that the Hong Kong vessel was the boat for him was plainly provisional, from which he resiled after he had inspected the Hong Kong vessel.
4.Mr Woodward had advised Mr Hobson on 4 September 2017 of the need 'to consider all options as the decision needs to be made carefully'.[61]
5.By mid-October 2017, Mr Hobson's frame of mind was that he was keen to buy and his evidence was that he considered that it was worth reviewing the Boat himself.[62]
[61] Primary decision [39]; GB 88.
[62] ts 123.
As to the last point, the following further observations may be made about Mr Hobson's evidence:[63]
1.Having rejected the Queensland vessel, Mr Hobson 'decided to go back' to the internet and saw the Boat 'which again was still being advertised'.
2.There was no suggestion by Mr Hobson in his evidence that when he saw the Boat advertised, he failed to recognise it as the boat the subject of the earlier inspection and report by Mr Woodward, and there was no suggestion that 'Le Bateau' was a common name for luxury vessels located in Western Australia at that time. The effect of his evidence was that although he did not specifically set about searching for the Boat on the internet, he had kept it in mind and immediately recognised it as the vessel the subject of Mr Woodward's inspection and report.
3.Having seen the advertisement, he thought that 'this time' he would 'actually [have] a look at it [himself]'.
4.His evidence was:
Well I'd had three other vessels that I looked at and I was getting keen to try and buy something so it was worth reviewing myself.
[63] ts 122 - 123.
In relation to ground 2.2, Mr Parkins did not break the chain of causation having regard to all the matters referred to above.
Nor is there any error in the inference drawn by the judge that by mid‑October 2017, when Mr Hobson was 'getting keen' to buy and had eliminated the other possibilities, it was 'fortuitous' that Mr Parkins was then the appointed agent and that had the Agency Agreement not terminated, the sale would have been effected by LBH. However even if there were error in the drawing of those particular inferences, any error is not determinative in favour of the Owner. The question is not whether hypothetically LBH would have sold the Boat had the Agency Agreement not been terminated by the effluxion of time, but whether LBH was the effective cause of the actual sale to Mr Hobson. As explained in resolving ground 1, the judge correctly understood and applied that concept to the facts of the case as found.

Ground 1

On the judge's findings of primary fact and the evidence referred to in [5] ‑ [31] above it may be seen that:
1.The Owner had been trying to sell the Boat for over a year prior to the sale in October 2017 - which tends to indicate that the sale (in the language of Moffitt P in Berben[64]) was 'of an unusual nature in which the vendor's problem was to find a person who may be interested in the particular property'.
[64] Berben (536).
2.LBH (through Mr Evan Moore) operated within and had valuable connections in the local market in which the Boat was located.
3.LBH's connections (through Mr Evan Moore) included his acquaintanceship with Mr Woodward, who was Mr Hobson's 'boat man'.
4.LBH first brought the Boat to the attention of Mr Woodward, and thereby to Mr Hobson.
5.Mr Hobson, for his part, regarded sourcing a local boat as having 'extreme cost and time benefits' for him.[65]
[65] See [20] above.
6.LBH arranged for Mr Woodward to inspect the Boat.
7.LBH attended the inspection with Mr Woodward.
8.LBH supplied Mr Woodward with an extensive photographic record of the Boat, evidently to facilitate Mr Woodward reporting to Mr Hobson in relation to the inspection undertaken by Mr Woodward. Albeit with specific reference to 'Mineral Water', on Mr Hobson's evidence the provision of a photographic record of a boat was an important factor in considering and comparing potential vessels for acquisition.[66]
9.Mr Hobson, within the space of approximately nine weeks from the date of Mr Woodward's inspection, sought an inspection - to 'actually look at it [himself]'[67] - having seen that it was 'still' advertised on the internet in the context that:
(a)he was 'getting keen' to buy and had looked at, but was not persuaded to purchase, the other three boats to which he had given consideration having inspected them; and
(b)the Boat was known to him in that he had relatively recently received Mr Woodward's report which, although raising concerns about the layout and size, had also indicated that it (1) was 'really well appointed', (2) was in 'good condition throughout', (3) did not appear to have any problems, and (4) could be 'an option' at 'the right price'; and
(c)the asking price for the Boat had by then been reduced to $5.35 million.
10.Mr Hobson inspected the Boat not independently of, but in conjunction with Mr Woodward - whose familiarity with the Boat was, it may be inferred, of continuing significance and assistance to Mr Hobson.
11.The sale occurred following what was in substance a second inspection (the first having been conducted through his agent Mr Woodward) and the negotiation by Mr Hobson of an even lower price ($5 million).
[66] See [20] above.
[67] ts 122.
Further, for the reasons given in relation to ground 2.1, the judge was correct in finding that Mr Hobson kept the Boat in mind in the period 25 August 2017 ‑ 27 October 2017.
The Owner's submissions referred to in [41] above do not accurately summarise either the evidence or the judge's findings of primary fact as to the advice received by Mr Hobson following Mr Woodward's inspection of the Boat on 25 August 2017. Also, the rhetorical question posed by the Owner, referred to in [43] above, involves a misstatement of the effect of the evidence and an incomplete summary of the material evidence. The Owner's submission referred to in [42] above is answered by the matters in the preceding two paragraphs. Moreover, even though the actual sale was effected by Mr Parkins, it is seldom conclusive that there were other events which could each be described as a cause of the sale.[68] Thus the second step of the submission outlined in [42] above cannot be accepted. For all the reasons above, LBH was an effective cause of the sale.
[68] WJ Adams Estates (86); Moneywood [85].
In these circumstances, the inference of effective causation was plainly open and indeed correct. The judge did not err in law as alleged in ground 1. Ground 1 should be dismissed.

Conclusion

The appeal should be dismissed. It is unnecessary to consider the notice of contention.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
4 SEPTEMBER 2020