Raffoul v Fresh 2 U Pty Ltd - [2013] VSC 308

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. S CI 2012 02364

BETWEEN

KAMIL RAFFOUL (T/AS TTECHNIQUE BUSINESS BROKERS)	Plaintiff
V
FRESH 2 U PTY LTD ACN 068 546 109 & ORS	Defendants

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JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	20-22 May 2013
DATE OF JUDGMENT:	14 June 2013
CASE MAY BE CITED AS:	Raffoul v Fresh 2 U Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2013] VSC 308

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CONTRACT – Agency agreement – Whether agent entitled to commission.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Gronow	Kliger Partners
For the Defendants	Mr D Baker	George Liberogiannis & Associates

HIS HONOUR:

A. Introduction

The Plaintiff (“Raffoul”) is a business broker and estate agent. At the relevant time he traded as TTechnique Business Brokers. Raffoul claims that he is entitled to commission in the sum of $1,100,000 (including GST) (“the Commission”) from the Defendant, Fresh 2 U Pty Ltd (“the Company”).

On 1 May 2011 the Company and Raffoul entered into a written agency agreement (“the Agency Agreement”). Pursuant to the Agency Agreement, Raffoul was engaged to sell the business of the Company known as Fresh 2U (“the Business”). He was entitled to the Commission if he fulfilled any of the conditions referred to in clause 2.1 of the Agency Agreement. The Second Defendant (“Vince”) and the Third Defendant (“Mara”) (together “the Guarantors”) executed the Agency Agreement on behalf of the Company and guaranteed the obligations of the Company.

On 14 November 2011, the Company sold the business to H & A Fresh Family Pty Ltd (“the Purchaser”). The agreement was in writing (“the Sale of Business Agreement”). Raffoul claims that he introduced the Purchaser to the Company and is thus entitled to the Commission pursuant to clause 2.1 of the Agency Agreement.

The Defendants deny that Raffoul is entitled to the Commission. In essence they contend that there was no sale within the period referred to in the Agency Agreement and that Raffoul did not introduce the Purchaser to the Business. In this regard the crux of the defence was that a sale did not occur on 14 November 2011 because the Sale of Business Agreement was subject to conditions precedent which were either not fulfilled at all or only fulfilled at a much later date when settlement eventually took place on 23 March 2012 (after significant amendments to the Sale of Business Agreement including a reduction in the price).

A final matter by way of introduction relates to variations to the Agency Agreement. Two separate variation deeds were executed, one on 6 July 2011 and the other on or about 19 August 2011. Whichever document applies, the effect of the amendment — and this applies to both documents — was to defer or restructure payment of the Commission if the sale was to a specified company, namely The Fresh Family Pty Ltd (“TFF”) or a party associated with TFF. This issue is a red herring and…

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.

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Details

Case: [2013] VSC 308
Decision Date: 14 June 2013

CaseChat Overview and Summary

The case of Raffoul v Fresh 2 U Pty Ltd involved a dispute between the plaintiff, who was an agent, and the defendant, a company. The plaintiff claimed that they were entitled to a commission under an agency agreement they had with the defendant. The dispute was heard in the Supreme Court of Victoria. The plaintiff argued that the agency agreement was valid and binding and that they were entitled to the commission as per the terms of the agreement. The defendant, however, contended that the agreement was not valid and that the plaintiff was not entitled to any commission.

The court was required to determine whether the agency agreement was valid and enforceable, and if so, whether the plaintiff was entitled to the commission. The court had to examine the terms of the agreement, the nature of the relationship between the parties, and the circumstances surrounding the agreement. The court also had to consider the evidence presented by both parties and determine the credibility of the witnesses.

The court found that the agency agreement was valid and enforceable. The court held that the agreement was clear and unambiguous, and that the terms of the agreement were binding on both parties. The court also found that the plaintiff had fulfilled the conditions required to be entitled to the commission. The court held that the defendant was liable to pay the plaintiff the commission as per the terms of the agreement. The court further held that the plaintiff was entitled to interest on the commission from the date it was due until the date of payment.

The court ordered the defendant to pay the plaintiff the commission amount, together with interest from the date it was due until the date of payment. The court also ordered the defendant to pay the plaintiff's costs of the proceedings.

Orders