Legal Research
Cases
P'Auer AG v Polybuild Technologies International Pty Ltd

P'Auer AG v Polybuild Technologies International Pty Ltd

Link copied

Case Copied 19 March 2015 50 min read

Contents

On this page

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0154

P’AUER AG & ANOR	Applicants
v
POLYBUILD TECHNOLOGIES INTERNATIONAL PTY LTD & ANOR	Respondents

---

JUDGES:	WHELAN, FERGUSON and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 February 2015
DATE OF JUDGMENT:	19 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 42
JUDGMENT APPEALED FROM:	Polybuild Technologies International Pty Ltd v P’Auer AG & Anor [2014] VCC 1868 (Judge Murphy)

---

CONTRACT LAW – Commission for sale of business – Absence of clear offer and acceptance – Whether acceptance of offer could be inferred from the circumstances – Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, PRA Electrical v Perseverance Corporation Pty Ltd (2007) 20 VR 487 and Vroon v Foster’s Brewing Group Ltd [1994] 2 VR 32 applied – Trial judge correctly found offer was accepted – Appeal dismissed.

CONTRACT LAW – Commission for sale of business – Variation of original agreement – Whether term as to amount of commission implied into varied agreement – Hawkins v Clayton (1988) 164 CLR 539 and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 applied – Commercial setting important – Trial judge correct in implying term – Appeal dismissed.

STATUTORY INTERPRETATION – Estate Agents Act 1980 – Whether respondents required to comply with requirements of Act – Meaning of ‘estate agent’ under s 4 discussed – Mercer v Dalley [1934] VLR 14 and Garbett v Rosemen Investments Pty Ltd [2002] VSC 575 discussed and applied – Act directed at ‘ongoing business’ and not ‘one off’ transactions – Trial judge correctly found s 50 did not apply as a bar to contract law action – Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr R M Niall QC with Mr L P Wirth	Globalex Tax ₊ Legal
For the Respondents	Mr M W Shand QC with Mr E W Moon	Belleli King & Associates

WHELAN JA:

The applicants are seeking leave to appeal from a judgment in the County Court.[1] The first applicant (‘P’Auer’) is a Swiss company which conducted a printing business. The second applicant, Mr Auer, is the principal of that company. The two respondents (‘Polybuild’ and ‘Cooper & Turner’ respectively) were engaged by P’Auer and Mr Auer to act as brokers in the sale of P’Auer’s business.
[1]Polybuild Technologies International Pty Ltd v P’Auer AG & Anor [2014] VCC 1868 (‘Judgment’).

On 15 July 2011 P’Auer and Mr Auer entered into an agreement entitled ‘Asset Sale Agreement’ for the sale of printing equipment, stock, intellectual property, customer data, and website content to an Australian company named Pact Group Pty Ltd for CHF 2.5 million, payable by instalments. The issues in the case were whether an agreement was ever made as to the commission due to Polybuild and Cooper & Turner consequent upon that sale, and whether Polybuild and Cooper & Turner were precluded from recovering any commission because they were unlicensed ‘estate…

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.

Keep reading for free

Create a free CaseChat account to read P'Auer AG v Polybuild Technologies International Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] VSCA 42
Decision Date: 19 March 2015

CaseChat Overview and Summary

In P'Auer AG v Polybuild Technologies International Pty Ltd, the plaintiff sought to recover commission from the defendant for facilitating the sale of the defendant’s business. The case involved a dispute over whether the defendant was obligated to pay the commission as per the original agreement or a varied agreement. The matter was heard in the Supreme Court of Victoria, where the trial judge found in favour of the plaintiff on all counts, and the defendant subsequently appealed.

The primary legal issues before the court were whether there was a clear acceptance of the offer for the commission and whether a term regarding the commission amount could be implied into the varied agreement. The court needed to determine if the acceptance of the offer was sufficiently clear and if the commission term could be inferred from the circumstances, considering the established principles in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd, PRA Electrical v Perseverance Corporation Pty Ltd, and Vroon v Foster’s Brewing Group Ltd. Additionally, the court had to interpret the meaning of 'estate agent' under the Estate Agents Act 1980 to decide if the respondents were required to comply with the Act.

The court held that the trial judge was correct in finding that the offer was accepted and that a term regarding the commission could be implied into the varied agreement. The court emphasised the importance of the commercial context in determining whether such a term should be implied, relying on precedents from Hawkins v Clayton and Codelfa Construction Pty Ltd v State Rail Authority of New South Wales. Furthermore, the court found that the Estate Agents Act 1980 was not applicable to the one-off transaction at hand, thus not barring the contract law action. Consequently, the appeal was dismissed.

The final orders of the court were to dismiss the appeal and affirm the trial judge's decision that the plaintiff was entitled to the commission as per the original or varied agreement, and that the Estate Agents Act 1980 did not apply to the transaction in question.

Orders