Varneba Pty Ltd v William Simpson [2007] NSWDC 48

Varneba Pty Ltd v William Simpson [2007] NSWDC 48

Section 36(1) of the Property, Stock and Business Agents Act 2002 is procedural only and does not postpone the accrual of any commission debt arising under the Ray White Agency Agreement. The plaintiff's contractual claim was therefore not merely inchoate and the Court had jurisdiction to determine it; if the defendants wished to rely on s 36(1) as postponing or temporarily barring the remedy, they should have pleaded it.

Jurisdiction
Australia
Judgment Date
04 April 2007
Procedural Posture
Civil / Commercial List Hearing Concerning Defendants' S 36 Objection to the Plaintiff's Claim
Outcome
The Court rejected the defendants' submission that non-compliance with s 36(1) deprived the Court of jurisdiction, and stood the matter down for the parties to consider the reasons.
Legal Topics
["real Estate Agent's Commission" 'property, Stock and Business Agents Act 2002 S 36' 'accrual of Contractual Debt' 'pleading Requirements' 'commercial List Case Management']
['civil Procedure' 'contract' 'real Property'] ["real Estate Agent's Commission" 'property, Stock and Business Agents Act 2002 S 36' 'accrual of Contractual Debt' 'pleading Requirements' 'commercial List Case Management']

Case Brief

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Procedural Posture

Civil / Commercial List Hearing Concerning Defendants' S 36 Objection to the Plaintiff's Claim

Legal Issues

  1. 1 ["Whether non-compliance with s 36(1) of the Property, Stock and Business Agents Act 2002 meant the plaintiff's cause of action for commission under the Ray White Agency Agreement was inchoate and outside the Court's jurisdiction." 'Whether s 36(1) postponed the accrual of the contractual debt or merely postponed the remedy of commencing proceedings.' 'Whether the defendants were required to plead reliance on s 36(1).']

Ratio Decidendi

Section 36(1) of the Property, Stock and Business Agents Act 2002 is procedural only and does not postpone the accrual of any commission debt arising under the Ray White Agency Agreement. The plaintiff's contractual claim was therefore not merely inchoate and the Court had jurisdiction to determine it; if the defendants wished to rely on s 36(1) as postponing or temporarily barring the remedy, they should have pleaded it.

Court Disposition

The Court rejected the defendants' submission that non-compliance with s 36(1) deprived the Court of jurisdiction, and stood the matter down for the parties to consider the reasons.

Orders

  • ['The matter was stood down to give the parties the opportunity to consider the reasons.']