Lim & 1ors v Timwin 2001C Pty Ltd & 1 ors [2007] NSWSC 185

Lim & 1ors v Timwin 2001C Pty Ltd & 1 ors [2007] NSWSC 185

The plaintiff was not entitled to commission because the sale was not successfully settled due to the purchaser’s death and subsequent rescission of the contract. The commission was contingent upon successful settlement, which did not occur. There was no breach of implied terms by voluntary act of the defendant. The Magistrate’s decision on costs did not involve consideration of irrelevant matters.

Jurisdiction
Australia
Judgment Date
13 March 2007
Procedural Posture
Appeal / Judgment
Outcome
Appeal dismissed
Legal Topics
['commission Claims' 'underwriting Agreement' 'implied Terms' 'variation and Rescission of Contracts' 'costs']
['contract Law' 'remedies'] ['commission Claims' 'underwriting Agreement' 'implied Terms' 'variation and Rescission of Contracts' 'costs']

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Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 ['Whether the plaintiff was entitled to commission under the underwriting agreement despite the sale not being settled due to the purchaser’s death' 'Whether the Local Court erred in finding the contract extinguished and denying commission' 'Whether the Magistrate erred in considering the Property Stock and Business Agents Act 2002 when awarding costs']

Ratio Decidendi

The plaintiff was not entitled to commission because the sale was not successfully settled due to the purchaser’s death and subsequent rescission of the contract. The commission was contingent upon successful settlement, which did not occur. There was no breach of implied terms by voluntary act of the defendant. The Magistrate’s decision on costs did not involve consideration of irrelevant matters.

Court Disposition

Appeal dismissed

Orders

  • ['The appeal fails.' 'The Summons is dismissed.' 'The plaintiff is to pay the costs of the proceedings.' 'Exhibits may be returned.']