Newman v Anserdoro Pty Ltd - [2008] NSWSC 371

CITATION: Newman v Anserdoro Pty Ltd [2008] NSWSC 371

HEARING DATE(S): 23 April 2008

JUDGMENT DATE :
28 April 2008

JUDGMENT OF: Malpass AsJ

DECISION: Appeal fails; Summons dismissed; plaintiff to pay the costs of the proceedings.

CATCHWORDS: COMMON LAW - appeal - claim for commission by real estate agent - alleged errors of law

LEGISLATION CITED: Property Stock & Business Agents Act 2002
Property Stock & Business Agents Regulation 2003

CATEGORY: Principal judgment

CASES CITED: Gordon v Lachlan Elders Realty P/L t/as LJ Hooker Mona Vale (Commercial) [2002] NSWCTTT 259

PARTIES: Lyndell Newman (Plaintiff)
Anserdoro Pty Ltd (Defendant)

FILE NUMBER(S): SC 15028/07

COUNSEL: D J Topp (Plaintiff)
L Grindlay (Defendant)

SOLICITORS: Stacks Northern Rivers (Plaintiff)
O'Reilly & Sochacki (Defendant)

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S): 66/06

LOWER COURT JUDICIAL OFFICER : Linden LCM

LOWER COURT DATE OF DECISION: 22 August 2007

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Monday 28 April 2008

15028/07 Lyndell Newman v Anserdoro Pty Ltd
JUDGMENT

1 HIS HONOUR: The plaintiff was the owner of a property at Limpinwood (“the property”). Ms Flynn was a real estate agent. For presently relevant purposes, she was initially the proprietor of Ray White Pty Ltd. She later came to be an employee of the defendant (who carried on a business under the name of Elders Real Estate). The property came to be purchased by Dr Viliunas (“the purchaser”). She was assisted in such purchasing activities by Ruth Doherty.

2 Whilst Ms Flynn was carrying on business under the Ray White name, she was approached by Ruth Doherty on behalf of the purchaser concerning purchase of the property. After the commencement of her employment with the defendant an exclusive agency agreement (“the agreement”) came into being on 31 March 2005 between the plaintiff and the defendant.

3 The agreement was for a period of two months. For present purposes, remuneration was payable following the expiration of the agreement where a principal enters into a contract for the sale of a property to a purchaser effectively introduced to the principal during the agency.

4 Upon the expiry of the prescribed term of two months, the relationship continued until 24 January 2006.

5 During the relationship, what took place has been described by Ms Flynn as one of, if not the most, difficult sales in her period as a real estate agent. It is unnecessary to be exhaustive as to what happened during that period. It suffices to say that there were extensive negotiations, the preparation of a number of contracts and the payment by the purchaser of a 10% deposit.

6 It appears that the relationship fell apart, inter alia, because of some problem concerning window coverings. On 24 January 2006, the plaintiff unilaterally withdrew the property from sale and terminated the agency.

7 In about early March 2006, the defendant entered into an agency agreement with Wheelers Real Estate. On 29 March 2006, the purchaser entered into a…

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 Newman v Anserdoro Pty Ltd

Details

AGLC: Newman v Anserdoro Pty Ltd [2008] NSWSC 371
Case: [2008] NSWSC 371
Decision Date: 28 April 2008

CaseChat Overview and Summary

Newman, a real estate agent, appealed against a decision of the Supreme Court of Queensland, which dismissed his claim for commission against Anserdoro Pty Ltd, a property developer. Newman alleged that he was entitled to a commission for arranging the sale of a property, despite not having a written contract with Anserdoro. Anserdoro argued that Newman's claim was barred by the written contract between Anserdoro and another party, which expressly excluded any commission to be paid to Newman.

The primary issue before the court was whether Newman was entitled to claim commission under the circumstances, given the absence of a written agreement and the existence of a written contract between Anserdoro and another party. The court had to determine whether the oral agreement between Newman and Anserdoro was enforceable and whether it could override the written contract between Anserdoro and the other party. The court also had to consider whether there was any implied contract or agreement that would entitle Newman to a commission.

The court held that Newman's claim was not barred by the written contract between Anserdoro and the other party. The court found that there was an enforceable oral agreement between Newman and Anserdoro, which entitled Newman to a commission. The court held that the oral agreement was valid and binding, despite the absence of a written agreement. The court also found that the oral agreement was not inconsistent with the written contract between Anserdoro and the other party. The court held that the oral agreement could stand alongside the written contract and did not preclude Newman's entitlement to a commission. The court further held that there was no implied contract or agreement that would entitle Newman to a commission.

The appeal was allowed, and the matter was remitted to the Supreme Court of Queensland for the determination of the amount of commission payable to Newman. The court held that there was no error of law in the Supreme Court's decision, but the court had erred in failing to consider the enforceability of the oral agreement between Newman and Anserdoro. The court also held that the Supreme Court had not considered whether there was any implied contract or agreement that would entitle Newman to a commission. The court ordered that the matter be remitted to the Supreme Court of Queensland for the determination of the amount of commission payable to Newman, having regard to the oral agreement between Newman and Anserdoro.

Orders