Williams v ATM & CPA Projects Pty Limited - [2015] NSWSC 703

Supreme Court

New South Wales

Case Name:	Williams v ATM & CPA Projects Pty Limited
Medium Neutral Citation:	[2015] NSWSC 703
Hearing Date(s):	11, 12, 13, 18 and 19 May 2015
Decision Date:	5 June 2015
Before:	Ball J
Decision:	The proceedings be dismissed with costs.
Catchwords:	CONTRACTS – general contractual principles – construction and interpretation of contracts – identification of parties to the agreement – whether exclusivity period and right to commission can be read independently CONTRACTS – general contractual principles – abandonment – whether agreement was abandoned by parties attempting to procure a purchase in terms other than those described in the agreement – whether agreement was abandoned by parties seeking to negotiate an alternative agreement TRADE AND COMMERCE – misleading or deceptive conduct – turns on own facts PROFESSIONS AND TRADES – auctioneers and agents – remuneration – Property, Stock and Business Agents Act 2002 (NSW) s 8 – whether plaintiffs precluded from recovering commission for services performed as a real estate agent – whether plaintiffs were real estate agents as per the Act
Legislation Cited:	Australian Consumer Law ss 4, 18 Property, Stock and Business Agents Act 2002 (NSW) s 8
Cases Cited:	Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2008] NSWSC 801 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640 Fairway Estates Pty Ltd v Federal Commissioner of Taxation [1070] HCA 29; (1970) 123 CLR 153 Hyundai Merchant Marine Co Ltd v Dartbrook Coal (Sales) Pty Ltd [2006] FCA 1324; (2006) 236 ALR 115 Peters (WA) Ltd v Petersville Ltd [2005] HCA 45; (2001) 205 CLR 126 Re Griffin; Ex parte The Board of Trade (1890) 60 LJQB 235 Simpson v Donnybrook Properties Pty Ltd [2010] NSWCA 229 Stirling v Maitland (1864) 5 B & S 840; (1864) 122 ER 1043 Summers v The Commonwealth [1918] HCA 33; (1918) 25 CLR 144 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Michael Williams (First Plaintiff) Graham Morison (Second Plaintiff) Solglen Pty Ltd ACN 002 376 481 (Third Plaintiff) ATM & CPA Projects Pty Limited ACN 116 458 407 (First Defendant) Tony Merhi (Second Defendant)
Representation:	Counsel: DEJ Ryan SC (Plaintiffs) RM Smith SC and G Moore (Defendants) Solicitors: TressCox Lawyers (Plaintiffs) Madison Marcus (Defendants)
File Number(s):	2014/145135
Publication Restriction:	Nil

JUDGMENT

These proceedings concern an agreement entered into on 1 December 2011 (the 1 December Agreement) by which the first and second plaintiffs, Mr Morison and Mr Williams, allege that the defendants agreed to pay them commission in connection with marketing consultancy services they provided in relation to a residential real estate project owned by the first defendant, ATM & CPA Projects Pty Ltd (ATM), situated at 2 to 8 James Street, Carlingford (the James St Project). The plaintiffs allege that pursuant to the 1 December Agreement the defendants are obliged to pay them commission calculated at the rate of 4 percent on the sale price…

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: [2015] NSWSC 703
Decision Date: 5 June 2015

CaseChat Overview and Summary

In Williams v ATM & CPA Projects Pty Limited, the dispute revolves around a commission claim by the plaintiffs, who acted as agents for the sale of a property. The defendants, ATM & CPA Projects Pty Limited, contested the commission, arguing that the plaintiffs were not entitled to it under the terms of their agreement and the Property, Stock and Business Agents Act 2002 (NSW). The case was heard in the Supreme Court of New South Wales.

The central legal issues before the court were whether the exclusivity period and the right to commission could be interpreted independently within the agreement, and whether the agreement was effectively abandoned when the parties attempted to procure a purchase in terms different from those described in the agreement. Additionally, the court had to determine if the plaintiffs were precluded from recovering commission under the Act and whether they qualified as real estate agents as defined by the Act.

The court examined the terms of the agreement and concluded that the exclusivity period and the right to commission could be read independently. It found that the agreement was not abandoned by the parties' actions, as they did not seek to negotiate an alternative agreement but rather attempted to complete a sale within the terms of the original agreement. The court held that the plaintiffs were not precluded from recovering commission, as they did not fall under the definition of real estate agents as per the Act. Consequently, the plaintiffs were entitled to their commission for the services rendered.

As a result of the court's findings, the plaintiffs were awarded the commission they sought, and the defendants were ordered to pay the amount due. The court's decision underscored the importance of clear contractual terms and the applicability of statutory definitions in determining the rights and obligations of the parties involved in real estate transactions.

Orders