Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2016] NSWSC 728

Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2016] NSWSC 728

The defendants were permitted to raise the proposed defence because the issue whether PIA acted in the capacity of licensee and sought commission within s 55 involved a mixed question of fact and law, there was no relevant case management prejudice preventing the defence being raised, no hearing date had been fixed, Ryde Developments had notice of the proposed defence since November 2015, and the defence was at least reasonably arguable notwithstanding the Agency Agreements and Investmentsource.

Jurisdiction
Australia
Judgment Date
03 June 2016
Procedural Posture
Procedural and Other Ruling in NSW Supreme Court Commercial List Proceedings / Notices of Motion Concerning Withdrawal of Admissions, Strike Out, and Leave to Amend/list Response and Cross Claim
Outcome
Orders made permitting PIA and Mr Wang to raise the proposed argument in both their Amended List Response and Amended Cross Claim.
Legal Topics
['ucpr R 12.6' 'withdrawal of Admissions' 'commercial List Response' 'property, Stock and Business Agents Act 2002 (nsw) S 55' 'commission or Expenses' 'services Performed in the Capacity of Licensee' 'mixed Questions of Fact and Law' 'leave to Amend']
['civil Procedure' 'property and Real Estate' 'agency' 'statutory Interpretation'] ['ucpr R 12.6' 'withdrawal of Admissions' 'commercial List Response' 'property, Stock and Business Agents Act 2002 (nsw) S 55' 'commission or Expenses' 'services Performed in the Capacity of Licensee' 'mixed Questions of Fact and Law' 'leave to Amend']

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Procedural Posture

Procedural and Other Ruling in NSW Supreme Court Commercial List Proceedings / Notices of Motion Concerning Withdrawal of Admissions, Strike Out, and Leave to Amend/list Response and Cross Claim

Legal Issues

  1. 1 ['Whether the defendants required consent or leave to withdraw admissions made in a Commercial List Response.' 'Whether the defendants should be permitted to raise an argument that PIA did not seek to recover commission or expenses for services performed in the capacity of licensee for and on behalf of Ryde Developments within the meaning of s 55 of the Property, Stock and Business Agents Act 2002 (NSW).' 'Whether the proposed defence was reasonably arguable notwithstanding the terms of the Deed of Exclusive Agency Agreements and the decision in Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2002] 56 NSWLR 27.']

Ratio Decidendi

The defendants were permitted to raise the proposed defence because the issue whether PIA acted in the capacity of licensee and sought commission within s 55 involved a mixed question of fact and law, there was no relevant case management prejudice preventing the defence being raised, no hearing date had been fixed, Ryde Developments had notice of the proposed defence since November 2015, and the defence was at least reasonably arguable notwithstanding the Agency Agreements and Investmentsource.

Court Disposition

Orders made permitting PIA and Mr Wang to raise the proposed argument in both their Amended List Response and Amended Cross Claim.

Orders

  • ['The first defendant and second defendant were permitted to raise an argument in the Amended List Response and Amended Cross Claim that PIA did not seek to recover commission or expenses for services in the capacity of licensee for and on behalf of Ryde Developments within the meaning of the Property, Stock and...