Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 Hearing dates: 27 October 2017 Date of orders: 21 December 2017 Decision date: 21 December 2017 Before: Beazley P at [1];
Payne JA at [2];
Barrett AJA at [130]Decision: (1) Appeal allowed;
(2) Set aside order 1 made by the primary judge on 11 May 2017 and in lieu make the following orders:
(a) As to the Amended Summons filed on 19 October 2015:
(i) declare that the First Defendant is not entitled to any commission under s 55 of the Property, Stock and Business Agents Act 2002 (NSW) in respect of the exclusive agency agreement between the Plaintiff and the First Defendant dated 15 May 2012;
(ii) the Amended Summons is otherwise dismissed; and
(3) Set aside order 2 made by the primary judge on 11 May 2017 and in lieu make the following orders:
(a) As to the Amended First Cross Summons filed on 5 November 2015:
(i) judgment for the Cross-Claimant against the First Cross-Defendant in the sum of $3,896,804;
(ii) the First Cross-Defendant pay interest on $3,465,724 of the judgment sum at 10% per annum from 18 May 2015 to the date the judgment is entered.
(iii) the First Cross-Defendant pay interest on $431,080 of the judgment sum under s 100 of the Civil Procedure Act 2005 (NSW), at the rates set out in Practice Note SC Gen 16, from 18 May 2015 to the date judgment is entered;
(iv) the Amended First Cross-Summons be otherwise dismissed;
(4) Appellant to provide submissions about the costs of the appeal and the trial not exceeding 10 pages to the associate of the presiding judge by 27 January 2018.
(5) Respondent to provide submissions in reply about the costs of the appeal and the trial not exceeding 10 pages to the associate of the presiding judge by 14 February 2018.
(6) Appellant to provide submissions in reply about the costs of the appeal and the trial not exceeding 3 pages to the associate of the presiding judge by 21 February 2018.
(7) The question of cost to be determined on the papers.Catchwords: STATUTORY INTERPRETATION – s 55 of the Property, Stock and Business Agents Act 2002 (NSW) – sch 8 Property, Stock and Business Agents Regulations (2003) – whether an agency agreement provides for the property to be offered for sale by private treaty when method of sale left to agent by agreement – whether an agency agreement “specifies the date” vendor was provided with approved guide by identifying the period in which the guide was provided – whether commission payable where no sales inspection report included in agency agreement - meaning of “any” sales inspection report prepared by the agent and given to the principal
CONTRACT – interpretation – whether it was open to the appellant to fix a completion date that was more than one month after the day it…
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- AGLC
- Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339
- Case
- [2017] NSWCA 339
- Decision Date
CaseChat Overview and Summary
The court was required to determine several legal issues. These included whether the agency agreement provided for the property to be offered for sale by private treaty, given that the method of sale was left to the agent's discretion. The court also considered whether the agreement "specified the date" the vendor was provided with an approved guide by identifying the period in which the guide was provided, and whether commission was payable when no sales inspection report was included in the agreement, interpreting the meaning of "any" sales inspection report. Additionally, the court examined whether it was open to the appellant to fix a completion date more than one month after notifying the purchaser of the registration of the strata plan, and whether the appellant was obligated to replace purchasers when certain conditions of the agreement were not satisfied.
The Court of Appeal allowed the appeal, setting aside the primary judge's orders. The court held that the agency agreement did not specify the method of sale as private treaty, and therefore, the respondent was not entitled to commission under section 55 of the *Property, Stock and Business Agents Act 2002* (NSW). The court found that the agreement did not sufficiently specify the date the approved guide was provided, nor did it mandate the inclusion of a sales inspection report. Furthermore, the court determined that the appellant was not obliged to replace purchasers as the conditions for such an obligation were not met. Consequently, the court declared that the respondent was not entitled to any commission and dismissed the amended summons. The court also set aside the judgment granted on the cross-claim.
Orders
Orders of the court
(1) Appeal allowed;
(2) Set aside order 1 made by the primary judge on 11 May 2017 and in lieu make the following orders:
(a) As to the Amended Summons filed on 19 October 2015:
(i) declare that the First Defendant is not entitled to any commission under s 55 of the Property, Stock and Business Agents Act 2002 (NSW) in respect of the exclusive agency agreement between the Plaintiff and the First Defendant dated 15 May 2012;
(ii) the Amended Summons is otherwise dismissed; and
(3) Set aside order 2 made by the primary judge on 11 May 2017 and in lieu make the following orders:
(a) As to the Amended First Cross Summons filed on 5 November 2015:
(i) judgment for the Cross-Claimant against the First Cross-Defendant in the sum of $3,896,804;
(ii) the First Cross-Defendant pay interest on $3,465,724 of the judgment sum at 10% per annum from 18 May 2015 to the date the judgment is entered.
(iii) the First Cross-Defendant pay interest on $431,080 of the judgment sum under s 100 of the Civil Procedure Act 2005 (NSW), at the rates set out in Practice Note SC Gen 16, from 18 May 2015 to the date judgment is entered;
(iv) the Amended First Cross-Summons be otherwise dismissed;
(4) Appellant to provide submissions about the costs of the appeal and the trial not exceeding 10 pages to the associate of the presiding judge by 27 January 2018.
(5) Respondent to provide submissions in reply about the costs of the appeal and the trial not exceeding 10 pages to the associate of the presiding judge by 14 February 2018.
(6) Appellant to provide submissions in reply about the costs of the appeal and the trial not exceeding 3 pages to the associate of the presiding judge by 21 February 2018.
(7) The question of cost to be determined on the papers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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