Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd [2019] NSWSC 73

Dunkirk Property Development Pty Ltd v Mosman & Co Pty Ltd [2019] NSWSC 73

The appeal succeeded because, although the fees agreement contained essential time stipulations and Dunkirk's failure to pay $20,000 by 28 April 2017 was a serious breach, termination did not permit Mosman to recover the original $91,000 commission under the agency agreement. On the pleaded basis that the fees agreement varied the agency agreement, Mosman's entitlement was limited to $30,000. Alternatively, on Mosman's notice of contention, the fees agreement was properly construed as an accord and satisfaction accepting Dunkirk's promise in satisfaction, not as an accord and conditional satisfaction; Mosman's only remedy was therefore under the fees agreement. The Local Court judgment...

Jurisdiction
Australia
Judgment Date
15 February 2019
Procedural Posture
Appeal From Local Court Judgment Concerning Contractual Dealings Under a Real Estate Agency Agreement and Fees Agreement / Principal Judgment on Appeal
Outcome
Appeal upheld; Local Court judgment set aside; notice of contention dismissed; judgment entered for Mosman in the sum of $30,000 owed under the fees agreement; defendant ordered to pay plaintiff's costs on an ordinary basis.
Legal Topics
['local Court Appeal on Question of Law' 'failure to Give Reasons' 'variation of Contract' 'repudiatory Breach and Termination' 'essential Time Stipulations' 'accord and Satisfaction' 'accord and Conditional Satisfaction' 'real Estate Commission']
['contract Law' 'civil Procedure' 'real Estate Agency'] ['local Court Appeal on Question of Law' 'failure to Give Reasons' 'variation of Contract' 'repudiatory Breach and Termination' 'essential Time Stipulations' 'accord and Satisfaction' 'accord and Conditional Satisfaction' 'real Estate Commission']

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Procedural Posture

Appeal From Local Court Judgment Concerning Contractual Dealings Under a Real Estate Agency Agreement and Fees Agreement / Principal Judgment on Appeal

Legal Issues

  1. 1 ['Whether the Local Court Magistrate erred by failing to determine the case on the pleaded and admitted basis that the agency agreement had been varied by the later fees agreement.' "Whether Dunkirk's failure to pay instalments under the fees agreement amounted to a sufficiently serious breach entitling Mosman to terminate." 'Whether, after termination of the fees agreement, Mosman could recover the original commission under the agency agreement or only the amount payable under the fees agreement.' "Whether the Magistrate failed to give adequate reasons for concluding that the agency agreement governed the parties' relationship after termination of the fees agreement." "Whether the fees agreement was an agreement of accord and conditional satisfaction or otherwise made Dunkirk's performance a condition precedent to Mosman compromising its commission claim."]

Ratio Decidendi

The appeal succeeded because, although the fees agreement contained essential time stipulations and Dunkirk's failure to pay $20,000 by 28 April 2017 was a serious breach, termination did not permit Mosman to recover the original $91,000 commission under the agency agreement. On the pleaded basis that the fees agreement varied the agency agreement, Mosman's entitlement was limited to $30,000. Alternatively, on Mosman's notice of contention, the fees agreement was properly construed as an accord and satisfaction accepting Dunkirk's promise in satisfaction, not as an accord and conditional satisfaction; Mosman's only remedy was therefore under the fees agreement. The Local Court judgment...

Court Disposition

Appeal upheld; Local Court judgment set aside; notice of contention dismissed; judgment entered for Mosman in the sum of $30,000 owed under the fees agreement; defendant ordered to pay plaintiff's costs on an ordinary basis.

Orders

  • ['The appeal is upheld.' 'The Local Court judgment that Dunkirk Property Development Pty Ltd pay $91,000 to Mosman & Co Pty Ltd is to be set aside.' 'The notice of contention filed 12 June 2018 is dismissed.' 'In lieu, judgment is entered that Dunkirk Property Development Pty Ltd is to pay Mosman & Co Pty Ltd the...