White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817

Hearing dates:

20, 22 March 2023, further submissions 2, 5, 11 and 30 May 2023

Date of orders:

25 July 2023

Decision date:

25 July 2023

Jurisdiction:

Equity - Commercial List

Before:

Rees J

Decision:

Judgment against first defendant with costs.

Catchwords:

CONTRACTS — plaintiff offers to source childcare sites for the defendants at a “boozy” lunch — eight sites sourced in NSW and ACT — whether there was an oral contract – principles at [204]-[206] — whether to disregard evidence given consumption of alcohol, at [207] — post-contractual conduct corroborates oral contract — whether oral contract varied – plaintiff agreed to a series of indulgences, which were not variations for want of consideration, at [232].

CONTRACTS — sufficiency of consideration — defendants made settlement offer that was accepted — offered to pay an amount early instead of a larger amount already due — whether offer supported by sufficient consideration — principles at [235]-[237] — no tangible benefit — whether consideration in recording the agreement in writing — parties had already recently recorded their agreement — whether consideration by release of plaintiff from claims under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — parties then unaware of any issue with plaintiff’s real estate licence – no consideration where licensing issue not in parties’ contemplation at the time of formation – principles at [246]-[247].

REAL ESTATE AGENT – whether plaintiff precluded for recovering fees as no real estate agent licence – Property and Stock Agents Act 2002 (NSW) s9(2) – Agents Act 2003 (ACT) s 23 – whether should take into account other services for which no fee charged, at [33]-[35] – whether plaintiff “acting as agent” – principles at [260]-[266] – acted as agent for NSW site – whether “negotiating with”, at [278] – meaning of “inducing or attempting to induce” under Agents Act 2003, s8(2)(b) at [279]-[287] – inducement is of the counterparty, not the principal – plaintiff did not induce counterparty – plaintiff entitled to recover fees for ACT sites.

RESTITUTION – money had and received – whether defendants entitled to restitution of money paid under contract for NSW site due to plaintiff’s breach of Property and Stock Agents Act – principles at [314]-[319] – breach of Property and Stock Agents Act did not render contract unenforceable per se – legislation punished agents directly – no total failure of consideration – mistake – no entitlement to restitution for payments made under valid contract, at [321]-[322] – no evidence that defendants were mistaken or that mistake was causative of payments made, at [324].

CORPORATIONS — pre-incorporation contracts — s 131, Corporations Act 2001 (Cth) — special purpose vehicles later incorporated to enter into leases of childcare sites — plaintiff asked to invoice special purpose vehicles — principles at [221]-[224] — ratification — although common practice to set up companies for each…