Jameson Global Investments Pty Ltd v Byron Bay Land Development Pty Ltd [2019] NSWSC 729

The unpleaded substantial performance defence could not be advanced because it was not properly raised in the Third Amended Commercial List Response and would have taken Jameson by surprise. Jameson owed no fiduciary duties because the Engagement Letter governed the relationship, did not confer a relevant power or discretion to act for the defendants, and expressly provided that it created no legal relationship other than a contractual one. Section 9(2) of the PSBA Act did not bar recovery because Jameson was retained to raise capital or source suitable investors, not to carry on business as a real estate or stock and station agent, and the eventual land sale was at most a possible...

Jurisdiction: Australia
Judgment Date: 19 June 2019
Procedural Posture: Equity Commercial List Commercial Contract Claim for Fees / Principal Judgment Following Hearing
Outcome: Jameson succeeded; the active defendants' defences failed and Jameson was held entitled to judgment for $1,200,000, with final form of orders and costs to be addressed by short minutes or further listing.
Legal Topics: ['recovery of Fee for Services Under Contract' 'substantial Performance Defence and Pleading Requirements' 'whether Fiduciary Duties Arose From a Contractual Engagement' 'conflict of Interest and Consent' 'property, Stock and Business Agents Act 2002 (nsw) Corporation Licence Requirement' 'commercial Property Agency Work Exemption' 'leave to Proceed Against Company in Liquidation']

['contract Law' 'equity' 'fiduciary Duties' 'real Estate Agents Regulation' 'corporations'] ['recovery of Fee for Services Under Contract' 'substantial Performance Defence and Pleading Requirements' 'whether Fiduciary Duties Arose From a Contractual Engagement' 'conflict of Interest and Consent' 'property, Stock and Business Agents Act 2002 (nsw) Corporation Licence Requirement' 'commercial Property Agency Work Exemption' 'leave to Proceed Against Company in Liquidation']

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Procedural Posture

Equity Commercial List Commercial Contract Claim for Fees / Principal Judgment Following Hearing

Legal Issues

1 ['Whether the defendants could advance an unpleaded defence that Jameson failed to substantially perform its obligations under the Engagement Letter.' 'Whether Jameson owed fiduciary duties to the defendants, whether any such duties were breached, and whether any breach disentitled Jameson from recovering fees.' 'Whether s 9(2) of the Property, Stock and Business Agents Act 2002 (NSW) barred Jameson from recovering its fees because it acted as an agent without a corporation licence.' 'Whether, if Jameson acted as an agent, its work fell within the exemption for commercial property agency work under reg 46A of the Property, Stock and Business Agents Regulation 2014 (NSW).']

Ratio Decidendi

Court Disposition

Jameson succeeded; the active defendants' defences failed and Jameson was held entitled to judgment for $1,200,000, with final form of orders and costs to be addressed by short minutes or further listing.

Orders

['The plaintiff provide a copy of this judgment to the liquidator of the first defendant within three business days of the date of this judgment.' 'Within 14 days of the date of this judgment the parties bring in short minutes of order to give effect to these reasons for judgment and to any agreement between the...