Port City Pty Ltd v De Freitas & Ryan Property Consultants Pty Ltd

[2013] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   PORT CITY PTY LTD -v- DE FREITAS & RYAN PROPERTY CONSULTANTS PTY LTD [2013] WASC 195

CORAM:   KENNETH MARTIN J

HEARD:   ON THE PAPERS

DELIVERED          :   23 MAY 2013

FILE NO/S:   CIV 2100 of 2010

BETWEEN:   PORT CITY PTY LTD

First Plaintiff

GLENDA RAE OMICHINI as Trustee for the Omichini Family Trust
Second Plaintiff

AND

DE FREITAS & RYAN PROPERTY CONSULTANTS PTY LTD
First Defendant

RODNEY DOUGLAS RYAN
Second Defendant

FILE NO/S              :CIV 2151 of 2010

BETWEEN              :PORT CITY PTY LTD

First Plaintiff

GLENDA RAE OMICHINI as Trustee for The Omichini Family Trust
Second Plaintiff

AND

DE FREITAS & RYAN PROPERTY CONSULTANTS PTY LTD
First Defendant

RODNEY DOUGLAS RYAN as Trustee for The R D Ryan Superannuation Fund
Second Defendant

Catchwords:

Practice and procedure - Preliminary issues - Appropriate for determination - Formulation of preliminary issues

Legislation:

Real Estate and Business Agents Act 1978 (WA)

Result:

Preliminary issue to be determined
Formulation of preliminary issue set out

Category:    B

Representation:

CIV 2100 of 2010

Counsel:

First Plaintiff                :     No appearance

Second Plaintiff            :     No appearance

First Defendant             :     No appearance

Second Defendant         :     No appearance

Solicitors:

First Plaintiff                :     Fiocco's Lawyers

Second Plaintiff            :     Fiocco's Lawyers

First Defendant             :     Cornerstone Legal

Second Defendant         :     Cornerstone Legal

CIV 2151 of 2010

Counsel:

First Plaintiff                :     No appearance

Second Plaintiff            :     No appearance

First Defendant             :     No appearance

Second Defendant         :     No appearance

Solicitors:

First Plaintiff                :     Fiocco's Lawyers

Second Plaintiff            :     Fiocco's Lawyers

First Defendant             :     Cornerstone Legal

Second Defendant         :     Cornerstone Legal

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

Nil

1. KENNETH MARTIN J:  After I concluded as a matter of principle that the interests of justice favoured a determination of a limited preliminary issues in these actions, the parties have been conferring as to the precise formulation of the issues.  To that end, written submissions have been exchanged and a draft statement of preliminary issues circulated.  After the defendants' written submissions concerning the formulation of a preliminary issues of 12 March 2013, the plaintiff has responded on 26 March 2013 with:

   (a)an amended statement of preliminary issues of that date; and

   (b)further submissions concerning the formulation of the preliminary issues in accord with the amended statement.

2. Having considered the parties' respective formulations, articulated in their written submissions, I am of the view the preliminary issues to be determined should be formulated in the following terms (I note that, according to the statement of claim, the share sale agreement was made on or before 15 June 2007):

   Issue 1, whether, it is the first plaintiff or the first defendant that was entitled to receive the commission arising out of the lease or sale of the listings contained in the schedule attached and marked SSA_H(1). 

   Sub‑issues

   (a)whether the commission arrangements for the properties identified in schedule SSA_H(1) which are mentioned in the Share Sale Agreement ('the SSA') are governed by the terms of the SSA.

   (b)whether the properties identified in schedule SSA_H(1) which are not mentioned in the SSA, are governed by the terms of the SSA;

   (c)whether an oral agreement existed between the parties and if so, what are the relevant terms and ramifications of that oral agreement, particularly as regards commission arrangements for the properties identified in schedule SSA_H(1);

   (d)if an oral agreement did exist and did apply to the commission arrangements for the properties identified in schedule SSA_H(1) whether that oral agreement is nevertheless rendered unenforceable by provisions contained in the Real Estate Business Agents Act 1978 (WA) (the REBA Act).

   Issue 2, if, within the meaning of the REBA Act it is the first plaintiff that was entitled to receive commission arising out of the lease or sale of the listings contained in schedule SSA_H(1), is the first plaintiff nevertheless estopped from receiving that commission.

   Sub‑issue

   (a)who had bona fide control over the trust accounts of the first plaintiff?

3. The preliminary issues as identified reflect, respectively, my acceptance or rejection of differing drafting positions as articulated by the parties in their written submissions.  The issues above are essentially framed in clarification of the issues which have earlier been discussed with counsel and accepted in concept as appropriate to hear, prior to and separately from any trial of the action.