United Finance Services P/L v C and E P/L (formerly Terry Seirlis Constructions P/L)

In the case of United Finance Services P/L v C and E P/L (formerly Terry Seirlis Constructions P/L), the Federal Court of Australia was called upon to determine whether there existed a general retainer agreement between the parties that entitled the plaintiff to a commission on loans procured for the defendant. The plaintiff, United Finance Services P/L, sought to claim a 2% commission on loans it facilitated for the defendant, C and E P/L. The defendant argued that no such retainer agreement existed and therefore, it was not liable for the commission. Additionally, the plaintiff brought a counterclaim regarding the delivery of a deed of charge, arguing that it was either a sham or held in escrow by the defendant.

The court had to decide several legal issues, including the existence and scope of a general retainer agreement between the parties, the timing of when the commission liability arose, and the validity of the counterclaim regarding the deed of charge. Specifically, the court needed to determine if the commission was payable upon notification of loan approval or upon the actual closing of the loan. Furthermore, the court considered whether a term regarding the commission could be implied by custom or usage, and if the deed of charge was genuinely held by the defendant or if it was a sham document.

In its judgment, the court found that no general retainer agreement existed between the parties, and therefore, the plaintiff was not entitled to the commission. The court held that the commission was only payable upon the actual closing of the loan, not upon notification of loan approval. Additionally, the court dismissed the plaintiff's counterclaim regarding the deed of charge, finding that it was not a sham and was properly held by the defendant. The court's reasoning was based on the lack of clear and unequivocal evidence supporting the existence of a general retainer agreement or the terms suggested by the plaintiff.

The court ordered that judgment be entered in favor of the defendant on the plaintiff's claim, with the plaintiff to pay the defendant's costs of and incidental to the defendant's counterclaim. This outcome effectively dismissed the plaintiff's claims and resolved the dispute in favor of the defendant.