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Rodin v Voyler Pty Ltd

Rodin v Voyler Pty Ltd

Case [2011] VSC 414 29 August 2011

Contract Formation

Statutory Interpretation

Contract Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW & APPEALS LIST

No. 5860 of 2010

IN THE MATTER OF an appeal under section 109 of the Magistrates' Court Act1989 (Vic)

BETWEEN

AMALIYA RODIN

VOYLER PTY LTD
(ACN 124 527 037)

Appellant

Respondent

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2011
DATE OF JUDGMENT:	29 August 2011
CASE MAY BE CITED AS:	Rodin v Voyler Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 414

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APPEAL - Appeal from Magistrates’ Court on a question of law - Appeal dismissed.

CONTRACT - Construction of term in real estate agent’s contract – Exclusive Sale Authority - Commencement of Exclusive Authority Period - Consideration of purpose and object of the instrument – Consideration of surrounding circumstances – Construction preferred that is consistent with business common sense – Application of the contra proferentem rule – Estate Agents Act 1980 (Vic) s 47A.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr I W Upjohn	Lewenberg & Lewenberg
For the Respondent	Mr M R Simon	McDonald, Slater & Lay

HER HONOUR:

Introduction

This is an appeal from a decision of the Magistrates’ Court of Victoria in respect of a claim brought by a real estate agent, Voyler Pty Ltd (‘Voyler’) (the respondent to this appeal), against a property developer, Ms Amaliya Rodin (the appellant in this appeal). Voyler’s claim in the Magistrates’ Court was for monies owing to it under a set of seven contracts entitled ‘Exclusive Sale Authority’ pursuant to which it was engaged by Ms Rodin to sell seven units on her behalf in return for commission. The total commission sought by Voyler pursuant to the seven Exclusive Sale Authorities was $93,049.

One of the critical questions for determination was when the ‘Exclusive Authority Period’ in the Exclusive Sale Authorities commenced to run, for Voyler was only entitled to claim commission for sales made during the Exclusive Authority Period.

On 26 October 2010, the learned Magistrate held that the Exclusive Authority Period had commenced to run when the Exclusive Sale Authorities were signed, and ordered Ms Rodin to pay Voyler’s claim plus interest, along with Voyler’s costs.[1]
[1]To be assessed in default of agreement on Scale D of the County Court Scale.

The dispute in this case is whether the words inserted in the Authorities for the Exclusive Authority Period, “60 days from the date of the Certificate of Occupancy granted”, mean that the Exclusive Authority Period was intended to commence 60 days after the grant of certificates of occupancy or whether it was to commence on the date the Authorities were signed (19 January 2009) and continue to a day 60 days after the date that certificates of occupancy were issued for the units.

Ms Rodin contends that pursuant to the Authorities, Voyler had an exclusive authority to sell as agent from the date upon which the certificates of occupancy were granted, which in fact was some 13 months after the…

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 Rodin v Voyler Pty Ltd

Details

AGLC: Rodin v Voyler Pty Ltd [2011] VSC 414
Case: [2011] VSC 414
Decision Date: 29 August 2011

CaseChat Overview and Summary

In the matter of Rodin v Voyler Pty Ltd, the appeal arose from a decision of the Magistrates' Court of Victoria. The appellant, Rodin, challenged the interpretation of a term in the contract with the respondent, Voyler Pty Ltd, a real estate agent. The specific term in question was the "Exclusive Sale Authority," particularly focusing on the commencement of the Exclusive Authority Period. The primary issue for the court was to determine the precise moment when the Exclusive Sale Authority commenced, given the ambiguous language in the contract.

The court was required to construe the term in a manner that aligns with the purpose and object of the contract, as well as the surrounding circumstances. The appellant argued that the Exclusive Sale Authority began immediately upon signing the contract, while the respondent contended that it only started upon the listing of the property. The court applied the contra proferentem rule, favouring an interpretation that was less favourable to the party who drafted the contract, in line with the legislative intent of the Estate Agents Act 1980 (Vic) s 47A. The court found that the term was ambiguous and thus considered the broader context of the contract and the industry practice.

The court concluded that the Exclusive Sale Authority did not commence until the property was listed, as this was consistent with both the business common sense and the purpose of the contract. The appeal was dismissed, and the decision of the Magistrates' Court was upheld. The court determined that the ambiguous term should be construed in a way that reflects the true intentions of the parties and the context in which the contract was made.

Orders