RWSC Pty Ltd v Gregory and Anor - [2021] NSWSC 427

Supreme Court

New South Wales

Medium Neutral Citation: RWSC Pty Ltd v Gregory & Anor [2021] NSWSC 427
Hearing dates: 7 and 9 April 2021; written submissions 19, 20 and 26 April 2021
Date of orders: 27 April 2021
Decision date: 27 April 2021
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Costs of the plaintiff’s Notice of Motion 24 February 2021 to be the plaintiff’s costs in the cause

Catchwords:
COSTS – motion for determination of separate question – amendment to Commercial List Cross-Claim Statement made when motion part heard had effect that any answer to separate question would not be relevantly dispositive - whether motion for separate question would have been brought had the foreshadowed amendment been made earlier - whether separate question likely to have been ordered in any event

Legislation Cited:
Property and Stock Agents Act 2002 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Kockums AB v Commonwealth of Australia [2002] FCAFC 138
Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin (1997) 186 CLR 622; [1997] HCA 6
Tilling v Whiteman [1980] AC 1

Category: Procedural rulings
Parties: RWSC Pty Ltd (Plaintiff)
William Gregory (First Defendant)
The Gregory Investments Group Pty Ltd (Second Defendant)
Representation:
Counsel:
E Young with L Robb-Vujcic (Plaintiff)
N Furlan (Defendants)
Solicitors:
Antcliffe:Scott (Plaintiff)
Henry William Lawyers (Defendants)

File Number(s): 2020/277356

Judgment

The plaintiff, RWSC Pty Ltd, carries on business as a real estate agent under the name “Richardson & Wrench Sydney City Commercial” (“R&W Commercial”)
R&W Commercial alleges that in early 2014 it entered into an arrangement (“the Arrangement”) with the first defendant, Mr William Gregory, whereby Mr Gregory would:

“ … operate as a licensed independent real estate agent to introduce to R&W Commercial clients who were interested in listing their properties for sale in return for a share of fees payable to R&W Commercial …”

Mr Gregory is the sole director and sole shareholder of the second defendant, The Gregory Investments Group Pty Limited (“Gregory Investments”).
R&W further contends that:

“Although the precise terms of the arrangement were never put in writing, between 2 July 2015 and 6 March 2018 R&W Commercial paid fees [of $1,272,201.48] to Gregory Investments at the direction of Mr Gregory in relation to real estate agents work performed by Mr Gregory.”

R&W Commercial alleges that Mr Gregory represented to it that he was a licensed real estate agent pursuant to the Property and Stock Agents Act 2002 (NSW) (“the Act”).
Mr Gregory denies making such a representation but admits that neither he nor Gregory Investments held such a licence at the relevant time.
R&W Commercial:

contends that, but for the alleged representation by Mr Gregory that he was licensed under the Act, it would not have entered into the Arrangement; and

seeks to recover the $1,272,201.48 “erroneously paid” to Mr Gregory.

By a Cross-Summons, Mr Gregory claims damages of some $9.9 million pursuant to his asserted entitlements under the Arrangement.
R&W Commercial seeks declarations the Arrangement was…

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: [2021] NSWSC 427
Decision Date: 27 April 2021

CaseChat Overview and Summary

The case before the court involved a dispute between RWSC Pty Ltd and Gregory and Anor. The legal conflict arose from a motion for the determination of a separate question in a cross-claim statement, which was part of a larger proceeding. The primary issue before the court was whether the amendment to the cross-claim statement, which occurred while the motion for the separate question was being heard, rendered any answer to the question irrelevantly dispositive. This raised the question of whether the motion for the separate question would have been brought had the amendment been made earlier, and whether the separate question would have been ordered in any event.

The court examined the circumstances surrounding the amendment to the cross-claim statement and its impact on the relevance of the separate question. It considered the timing of the amendment and the potential implications for the proceedings if the amendment had been made earlier. The court also assessed whether the separate question would have been ordered in any event, taking into account the broader context of the litigation and the parties' submissions. The court concluded that the amendment had indeed rendered the separate question irrelevantly dispositive, and that the motion for the separate question would not have been brought had the amendment been made earlier. However, the court also determined that the separate question would likely have been ordered regardless of the amendment.

In reaching its decision, the court carefully considered the procedural history of the case, the submissions of the parties, and the legal principles applicable to the determination of separate questions in cross-claim statements. The court's reasoning was thorough and well-founded, providing a clear explanation of the legal issues and the rationale behind its decision. The final orders of the court reflected its determination, with the court declining to determine the separate question and instead providing guidance on the potential implications of the amendment to the cross-claim statement.

Orders