Norton Property Group Pty Ltd v Ozzy States Pty Ltd (in liq) [2020] NSWCA 23

Norton Property Group Pty Ltd v Ozzy States Pty Ltd (in liq) [2020] NSWCA 23

By majority, entry into unexercised option agreements did not trigger the Agent's contractual entitlement to a buying fee because cl 3(ii)(a), read with cl 3(iv), was better construed as requiring the Principal to enter into an ordinary contract for purchase imposing an obligation to acquire the property, not merely to obtain a discretionary right to do so. However, the Agent's demands and invoices were not misleading or deceptive because they conveyed the Agent's opinion or legal conclusion as to its contractual entitlement on undisputed facts, not a misleading representation of fact. The restitutionary claim also failed because the pleaded case of payment by mistake or improper pressure...

Jurisdiction
Australia
Judgment Date
21 February 2020
Procedural Posture
Appeal From District Court of New South Wales Civil Proceedings Concerning a Buyers Agency Agreement, Commission, Misleading and Deceptive Conduct and Restitution / Appeal
Outcome
Appeal allowed in part; judgment for the Principal set aside; amended statement of claim dismissed; dismissal of the Agent's cross-claim left in place; no orders as to costs at first instance or on appeal.
Legal Topics
['construction of Buyers Agency Agreement' 'real Estate Agent Commission' 'call Option Agreements' 'misleading or Deceptive Conduct Under S 18 Australian Consumer Law' 'money Had and Received' 'restitution for Mistake']
['contract' 'consumer Law' 'restitution' 'real Property' 'agency'] ['construction of Buyers Agency Agreement' 'real Estate Agent Commission' 'call Option Agreements' 'misleading or Deceptive Conduct Under S 18 Australian Consumer Law' 'money Had and Received' 'restitution for Mistake']

Case Brief

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Procedural Posture

Appeal From District Court of New South Wales Civil Proceedings Concerning a Buyers Agency Agreement, Commission, Misleading and Deceptive Conduct and Restitution / Appeal

Legal Issues

  1. 1 ["Whether securing options over some parcels of land triggered the Agent's entitlement to a buying fee under the Buyers Agency Agreement." 'Whether the Agent engaged in misleading or deceptive conduct by asserting entitlement to the buying fee.' 'Whether payments made by the Principal were recoverable in restitution as paid by mistake or improper pressure.']

Ratio Decidendi

By majority, entry into unexercised option agreements did not trigger the Agent's contractual entitlement to a buying fee because cl 3(ii)(a), read with cl 3(iv), was better construed as requiring the Principal to enter into an ordinary contract for purchase imposing an obligation to acquire the property, not merely to obtain a discretionary right to do so. However, the Agent's demands and invoices were not misleading or deceptive because they conveyed the Agent's opinion or legal conclusion as to its contractual entitlement on undisputed facts, not a misleading representation of fact. The restitutionary claim also failed because the pleaded case of payment by mistake or improper pressure...

Court Disposition

Appeal allowed in part; judgment for the Principal set aside; amended statement of claim dismissed; dismissal of the Agent's cross-claim left in place; no orders as to costs at first instance or on appeal.

Orders

  • ['Appeal allowed in part.' 'Set aside orders 1 and 2 made on 26 April 2019, and in lieu thereof, order that the amended statement of claim be dismissed.' 'Set aside the costs orders made on 28 June 2019.' "Note that there are no orders as to the parties' costs at first instance or on appeal, with the intent that the...