ELLIOTT -v- ALGERI [2023] WADC 11 (9 February 2023)

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

CITATION : ELLIOTT -v- ALGERI [2023] WADC 11

Aequitas v AEFC Leasing Pty Ltd [2001] NSWSC 14; (2001) 19 ACLC 1006

Boston Deep Sea Fishing and Ice Co v Ansell [1888] UKLawRpCh 123; (1886) 39 Ch D 339

Castle Constructions Pty Ltd v Fekala Pty Ltd [2006] NSWCA 133; (2006) 65 NSWLR 648

Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64

Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1

Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1

Mahesan v Malaysia Government Offices' Co-Operative Housing Society Ltd [1979] AC 374

McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729

Peninsular and Oriental Steam Navigation Co v Johnson [1938] HCA 16; (1938) 60 CLR 189

Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) [1981] HCA 59; (1981) 150 CLR 225

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272

Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454

1. These reasons concern an assessment of damages hearing conducted on 12 January 2022 in the aftermath of the plaintiffs obtaining default judgment against the defendant. The current position, by reason of the default judgment having taken effect and having not been otherwise set aside or varied, is that liability has been established against the defendant in respect of the causes of action as articulated in the plaintiff's writ of summons and statement of claim dated 28 July 2021 (SOC).

1. The issue for determination at the assessment hearing is purely one of the assessment of damages suffered by the plaintiffs (if any).

1. By the SOC dated 28 July 2021, the plaintiffs claimed damages against the defendant arising out of payments made by the plaintiffs by way of project management fees and a builder's commission.
2. The plaintiffs are the registered proprietors of Lot 20 on Diagram 99316, being the whole of the land contained in Certificate of Title Volume 2154 Folio 215, more commonly known as 199 Reserve Road, Gidgegannup, Western Australia (Land). The plaintiffs purport that in or around early 2018, the plaintiffs had plans to perform various building works in relation to the Land being: (a) the construction of a studio, garage, and pool/tennis complex (Stage 1); and (b) the demolition of existing structures, and construction of a residence on the Land (Stage 2) (together the 'Project'). The plaintiffs purport that from around mid-to-late 2018, the plaintiffs had discussions with the defendant to engage the defendant for project management services for the Project.
3. The plaintiffs purport that in or around mid-to-late 2018, the defendant recommended Justin Skewes (Mr Skewes) from Westbuild Constructions Pty Ltd (Westbuild) to undertake the construction works for the Project. The plaintiffs subsequently entered into a written agreement dated 5 November 2018 entitled 'HIA WA Cost Plus Building Contract' with Westbuild (Building Contract). Item 5 of the Building Contract schedule of particulars entitled 'Consideration (Clause 1)' provided as follows: 'PERCENTAGE FEE SHALL BE CALCULATED AT THE RATE OF 28% OF THE COST OF THE WORKS' (Westbuild's Percentage Fee).
4. The plaintiffs purport that in or around January 2019, the plaintiffs and the defendant entered into a partly written and partly oral contract whereby the defendant agreed to be the project manager including supervising the builder, various tradespeople and consultants (Contractors) in relation to the Project (Management Agreement). Relevantly, the plaintiffs purport that it was an express term of the Management Agreement that the defendant's fees for his services would be calculated at a fixed percentage of 4% of the invoices rendered by the Contractors (Percentage Fee).
5. The plaintiffs allege that in breach of the Management Agreement, from around 26 November 2018 to 21 July 2020, the defendant charged the plaintiffs in excess of the Percentage Fee, such excess being in the amount of about $91,986.14. Further, the plaintiffs allege that in breach of the Management Agreement, from between about 8 March 2019 and about 25 May 2020, the defendant caused to be invoiced Westbuild, and Westbuild paid to the defendant, an amount of $216,930.45 (including GST) being half of Westbuild's Percentage Fee (Undisclosed Commission). The plaintiffs purport that but for the defendant's breach of the Management Agreement, Westbuild would have charged the plaintiffs a lesser amount under the Building Contract for Westbuild's Percentage Fee. Further or alternatively, the plaintiffs claim that the defendant has received the benefit of the Undisclosed Commission and has been correspondingly enriched. In the circumstances, the plaintiffs claim in restitution for unjust enrichment.

1. The general principle governing the measure of damages for breach of contract is well established. The general principle is that the innocent party is to be placed in the same position, so far as money can do it, as if the contract had been performed. See Tabcorp Holdings Ltd v Bowen Investments Pty Ltd;[1] Commonwealth v Amann Aviation Pty Ltd;[2] Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1);[3] Wenham v Ella.[4] The innocent party is entitled to damages for loss of bargain (expectation loss) and damage suffered, including expenditure incurred, in reliance on the contract (reliance loss).[5]
2. The innocent party should receive the monetary sum which, so far as money can, represents fair and adequate compensation for the loss suffered by reason of the breach of contract. Ordinarily, this involves a comparison between the position in which the innocent party would have been if the breach of contract had not occurred and what, relevantly, represents the position in which the innocent party is in after the occurrence of the breach.[6]
3. The innocent party bears the onus of proving, according to the applicable measure, that it has suffered damage and that the loss it claims was caused by the defendant's breach.[7]
4. The court in Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4),[8] citing Latham CJ in Peninsular and Oriental Steam Navigation Co v Johnson,[9] sets out the common law principle that 'an agent may not take a commission or make a profit from the agency beyond that paid by the principal, without the knowledge and consent of the principal'.[10] The principle serves, amongst other things, to avoid agents having a conflict between their own and the principal's interest. A principal whose agent has taken a secret commission may recover the amount of the commission in an action for money had and received or sue for damages in respect of the loss suffered by reason of the agent's fraud.

1. The plaintiffs relied on three affidavits in support of the assessment. The first affidavit is by the second plaintiff, Alexandra Maria Bossoff, sworn 15 June 2022 (First Bossoff Affidavit). The second affidavit is a further affidavit by the second plaintiff sworn 31 August 2022 in response to the Set Aside Application (Second Bossoff Affidavit). The third affidavit is by Justin William Skewes of Westbuild sworn 15 November 2022 in response to the Set Aside Application (Skewes Affidavit). The plaintiff filed written submissions on 11 January 2023.
2. The defendant has elected not to file any responsive affidavit material or written submissions. I have carefully considered the written submissions filed and the submissions made by counsel for the plaintiff and the defendant during the hearing of the application on 12 January 2023.

1. The plaintiffs' claim and the evidence relied upon in support of the Application may be (relevantly) summarised as follows.
2. The first plaintiff and the second plaintiff are the registered proprietors of the Land.[13] The first plaintiff and the second plaintiff are the owners of the adjacent land at 231 Reserve Road, Gidgegannup, Western Australia (Adjacent Land) which the plaintiffs purchased on 8 August 2017.[14] In or around September 2017, a mutual friend of the plaintiffs and the defendant recommended the defendant to the plaintiffs as someone who could clean up the Adjacent Land, and to the plaintiffs having engaged the defendant to do so (Adjacent Land Clean Up Work).[15] The plaintiffs engaged the defendant personally to carry out the clean up work on the Adjacent Land. The defendant made no mention that he was acting other than in his personal capacity. The second plaintiff deposed that 'there was specifically no mention to us that he was representing or acting on behalf of any company'.[16]
3. The Adjacent Land Clean Up Work took about three months, between September 2017 and December 2017, and the plaintiffs thereafter engaged the defendant again to do various works on the Land and the Adjacent Land such as installing fencing, conducting rock work, installing fire breaks and changing the water tank.[17] The defendant performed these clean up works on the Land and the Adjacent Land personally and on occasion with the assistance of the defendant's brothers. The second plaintiff deposed that the defendant 'has never held out that he was representing or acting on behalf of any company'.[18]
4. In or around early 2018, the plaintiffs were considering landscaping the Land and engaged a designer to draw up plans and that the defendant, upon hearing this, offered to review the plans and provide the plaintiffs with some tips and advice. Shortly thereafter, the plaintiffs decided to develop the Land and undertake the Project and during these times got to know the defendant socially, including meeting with the defendant's family and permitting the defendant to bring his two pet cattle to graze on the Adjacent Land without charge and his family visited regularly.

1. Mr Skewes is the director of Westbuild.[21] Mr Skewes deposed to having read the Second Bossoff Affidavit (with annexures) and the defendant's affidavit sworn on 5 November 2022 (in support of the Set Aside Application).[22] Mr Skewes deposed that in or around mid-to-late 2018, he was approached by the defendant to assist with the development of the Land and later learnt that the Land belonged to the plaintiffs.[23]
2. Mr Skewes deposed that he had wanted a 20% commission structure during his initial discussion with the defendant in line with the market conditions for construction projects of the plaintiffs' type (ie the Project).[24] Mr Skewes deposed that the defendant advised him that the defendant required a commission for this project and that Mr Skewes and the defendant 'ended up raising the commission structure to 28% and that each of them would receive a 14% commission from the Project on this basis'.[25] Mr Skewes deposed that to receive his 14% commission, the defendant was to 'handle all off-site administration including but not limited to, project design, selection of materials and liaising with the plaintiffs on a day-to-day basis'.[26]
3. Mr Skewes deposed that he drafted up a building contract and 'left it' to the defendant to liaise with the plaintiffs. Mr Skewes deposed that he 'assumed' the defendant would fully disclose and inform the plaintiffs of 'our free fee structure and the terms of our services'.[27]
4. The plaintiffs entered into the Building Contract on 5 November 2018.[28] The second plaintiff deposed that the Building Contract was signed by the plaintiffs in the presence of the defendant. Mr Skewes was not present, and the plaintiffs did not receive a signed copy of the Building Contract from Mr Skewes until prior to the commencement of these proceedings. The plaintiffs were unsure when the Project commenced.[29]
5. Mr Skewes deposed that the defendant handed him a building contract signed by the plaintiffs shortly after and that he was advised by the defendant that the plaintiffs had agreed to the conditions of the contract including the fee structure. Mr Skewes deposed that he had never directly discussed the building contract or its terms with the plaintiffs.

1. The first plaintiff and the second plaintiff met with the defendant at the Land in or around November 2018 during which the defendant said to the plaintiffs' words to the effect of:[33]

The fee for my services is 4% of the total amount of any invoices issued by the contractors engaged with respect to the works (including GST) as well as Westbuild's invoices but excluding their margin of 28%.

1. The second plaintiff deposed to having understood this to mean that the Percentage Fee would be calculated 'at a fixed percentage of 4% of the build costs i.e. invoices rendered by the contractors engaged with respect to the Project, excluding any mark-up by those contractors'.[34] The second plaintiff deposed to having understood that Percentage Fee would be for the following services, but not limited to:[35]
   1. ...

(a) making recommendations based on the choice of material, i.e. steel or wood;

(b) making suggestions for the Project based on identified need i.e. in-floor bathroom heating for the bathroom locked out from sunlight;

(d) set-up meetings and attend meetings with the architect and interior designer;

(e) managing the builder and other contractors; and

(f) performing various other project management services

1. In or around January 2019, the plaintiffs and the defendant verbally agreed for the defendant to be the project manager for the Project (Management Agreement).[36] The second plaintiff deposed to having understood that this engagement was with the defendant personally and that the defendant had made no mention that he was acting as an agent of a company, or that any company was involved in the provision of the Services.[37]
2. The second plaintiff deposed that because she and the first plaintiff lived in Perth and would only visit the Land and the Adjacent Land on weekends, that the plaintiffs trusted the defendant implicitly in relation to his provision of the Services for the Project in accordance with the Management Agreement.[38]
3. On 14 January 2019, the plaintiffs received the first invoice for the Project from the defendant and that the invoice was issued by Beaufort Designs.[39] The second plaintiff deposed that she did not raise any query regarding the entity that issued the invoice and assumed that Beaufort Designs was the business name as it closely resembled that of the defendant's first name, Beau.[40]
4. On 16 January 2019, the second plaintiff received an email from the defendant with regards to the Management Agreement and his Percentage Fee. The second plaintiff deposed to the defendant not having made any mention that he was acting as an agent of a company, or that any company was involved in the provision of the Services.[41]
5. The second plaintiff deposed to having received an email from the defendant, an invoice from Archi Industries and to the defendant having informed the plaintiffs that he had changed the trading name so 'the income he made can be put into a trust he set up for his son'.[42]
6. The defendant was the sole director and sole secretary of Beaufort Designs (WA) Pty Ltd (ACN 603 661 601) (Beaufort Designs) (deregistered on 28 July 2019) and Archi Industries Pty Ltd (ACN 633 750 106) (Archi Industries).[43] The second plaintiff deposed to not having raised any issue with the change as the plaintiffs continued to deal with the defendant as a person, not as a representative of any companies. The second plaintiff also deposed to having received emails from the defendant through various different email addresses relating to different entities including but not limited to Archi Pipelines, Lauxes products, Beaufort Designs and Archi Industries. The second plaintiff deposed to the defendant not having made mention that he was acting as an agent of a company, or that any company was involved in the provision of the Services.

1. Mr Skewes deposed that in or around June 2020, the defendant contacted him and advised that the plaintiffs were unhappy with the 28% commission and that the defendant instructed Mr Skewes that he was no longer going to charge his 14% commission and that the commission rate be reduced to 14% instead.[46] Mr Skewes deposed that since June 2020, he had reduced the commission rate to 14%.[47] In or around July 2020, Mr Skewes met with the plaintiffs and spoke to them in relation to the 28% commission charged by Westbuild and that he spoke to the plaintiffs and discussed his issues with the cost of the build. Mr Skewes deposed that it was at this conversation that he was told by the plaintiffs that the defendant was also charging the plaintiffs a project management fee.[48]
2. The second plaintiff deposed that on or around 1 August 2020, it came to the plaintiffs' attention that between approximately 8 March 2019 and approximately 25 May 2020, the defendant had issued invoices to Westbuild for a purported commission payment from Westbuild for the Project totalling $216,930.43 (being the Undisclosed Commission).[49] The plaintiffs claim payment by the defendant in respect of these invoices:

1. The defendant had not told the plaintiffs that he would be receiving the Undisclosed Commission from Westbuild from the Project.[50]
2. The second plaintiff deposed to having discovered, after discussions with Mr Skewes that the defendant was taking half of Westbuild's 28% margin and to Ms Bossoff having on 19 August 2020 at 4.21 pm having sent an email along with a letter and spreadsheet to the defendant requiring a written response to the matters set out in that letter and to the defendant's response correspondence that day and acknowledgement of 'the deception on his part'.[51]
3. The defendant, in an email to the plaintiffs dated 19 August 2020 wrote as follows in respect of the Percentage Fee, the Undisclosed Commission and the Management Agreement:[52]

I am sorry you are disappointed in the way things have gone and be done from my side my dealings with Justin was to assist him with the building works, separated from the works i carry out from your self. I understand the mistrust and only can apologise for the deception on my side of things.

1. Mr Skewes deposed, having referred to par 22 of the Second Bossoff Affidavit, that the services provided by the defendant to receive the project management fee aligned with what the defendant was required to do to receive the 14% commission. Both Westbuild and the plaintiffs had been paying the defendant to provide the same services for the Project and that the defendant was paid twice for his services.[53]
2. Mr Skewes deposed that he had asked the defendant on numerous occasions during the Project that he wanted to meet the plaintiffs. Mr Skewes deposed that he had requested to attend the planning meetings that the defendant would have with the plaintiffs on the weekends but that he was always told that the plaintiffs did not wish to meet him, and that they were happy to deal solely with the defendant. Mr Skewes confirmed that he received all instructions from the plaintiffs through the defendant.[54]
3. Mr Skewes deposed that he now believes that the defendant intentionally kept the plaintiffs and him apart in order to hide some aspects of his commission and project management fee structure.[55]

1. Between 26 November 2018 and 20 July 2020, Westbuild had issued invoices to the plaintiffs for the Project totalling $2,105,868.66.[56]
2. Between around 14 January 2019 and 30 July 2020, Beaufort Designs and Archi Industries had issued invoices to the plaintiffs in relation to the Project totalling $153,893.10 (Westbuild Management Fees).[57] The plaintiffs paid the defendant the sum of $153,893.10 which amount comprised the total amount invoiced by Westbuild (excluding the 28% margin) including the defendant's Percentage Fee.
3. The total amount overpaid by the plaintiffs to the defendant in relation to the Westbuild Management Fee invoices is $87,324.93 (Westbuild Percentage Fee Excess Claim).[58]

1. The defendant engaged a number of contractors between late 2018 and early 2019 to undertake ancillary works in relation to the Project and invoiced the plaintiffs the Management Fee in respect of these contractor invoices.[59]

1. Between 1 November 2019 and 10 June 2020, Jodi Balhorn Interior Design issued the defendant the following invoices in relation to the Project (Balhorn Fee):[60]

1. Between 5 November 2019 and 17 June 2020, Archi Industries Pty Ltd and Beaufort Designs (WA) Pty Ltd issued the plaintiffs the following invoices in relation to the Project:[61]

1. The plaintiffs paid the defendant the sum of $20,133.30 which amount comprised the total amount invoiced by Balhorn including the defendant's 4% Percentage Fee.[62] The second plaintiff deposed that the total amount overpaid by the plaintiffs to the defendant in relation to the Balhorn Fee is $957 (Balhorn Percentage Fee Excess Claim).[63]

1. On or around 6 June 2019, Dervla McCarey of Mountford Architects provided a quote to the defendant for the sum of $3,700 plus GST (Mountford Fee).[64] On or around 20 January 2020, Archi Industries Pty Ltd issued the plaintiffs an invoice including a charge for the sum of $4,395.60 (inclusive of GST).[65] The plaintiffs paid the defendant the sum of $4,395.60 which amount comprised the total amount invoiced by Mountford Architects including the defendant's Percentage Fee.[66] The second plaintiff deposed that the total amount overpaid by the plaintiffs to the defendant in relation to the Mountford Fee is $162.80 (Mountford Percentage Fee Excess Claim).[67]

1. Between 21 January 2020 and 22 May 2020, Infinity Design & Drafting issued the defendant the following invoices (Infinity Fee):[68]

1. Between 27 January 2020 and 25 May 2020, Archi Industries Pty Ltd issued the plaintiffs the following invoices in relation to the Project in respect of the total amounts invoiced by Infinity Design & Drafting:[69]

1. The plaintiffs paid the defendant the sum of $13,695 which amount comprised the total amount invoiced by Infinity Design & Drafting including the defendant's Percentage Fee.[70] The second plaintiff deposed that the total amount overpaid by the plaintiffs to the defendant in relation to the Infinity Fee is $1,735 (Infinity Percentage Fee Excess Claim).[71]

1. On or about 23 February 2020, Auswide Solar issued the defendant an invoice for the sum of $38,005.00 (Auswide Solar Fee).[72] On or about 18 February 2020, Archi Industries Pty Ltd issued the plaintiffs an invoice in the sum of $41,040.[73] The plaintiffs paid the defendant the sum of $41,040 which amount comprised the total amount invoiced by Auswide Solar including the defendant's Percentage Fee.[74] The second plaintiff deposed that the total amount overpaid by the plaintiffs to the defendant in relation to the Auswide Solar Fee is $1,514.80 (Auswide Percentage Fee Excess Claim).[75]

1. Between 19 June 2020 and 16 July 2020, Graziani Pools & Landscape issued the defendant the following invoices:

1. Between 22 June 2020 to 21 July 2020, Archi Industries issued the plaintiffs the following invoices in relation to the Project:

1. The plaintiffs paid the defendant the sum of $29,107.19 which amount comprised the total amount invoiced by Graziani Pools & Landscape including the defendant's Percentage Fee.[76] The second plaintiff deposed that the total amount overpaid by the plaintiffs to the defendant in relation to the Graziani Pools & Landscape is $1,078.05 (Graziani Percentage Fee Excess Claim).[77]
2. Mr Skewes rejected any statement that he is assisting the plaintiffs in this matter in order to be given more work from them. Mr Skewes deposed that he tendered for the construction of the main house but was unsuccessful in securing that work from the plaintiffs.[78] The second plaintiff deposed to verily believing that the defendant is the person who owes the plaintiffs a debt by reason of the defendant's deceit.[79]

1. The defendant is self-represented. At the hearing of the Assessment Application on 12 January 2023, the defendant acknowledged that he understood that on 9 December 2022, orders were made by consent and included orders for the defendant to file and serve an affidavit on which the defendant intends to rely on at the hearing for the assessment of damages. The defendant did not file any affidavit further to the Orders in response to the Assessment Application.
2. The defendant acknowledged at the hearing that he had elected not to file any affidavit in response and acknowledged that there was nothing by way of evidence before the court on behalf of the defendant in respect of the Assessment Application. In circumstances where the defendant is self-represented, the defendant was afforded the opportunity to put to the court the defendant's position on in respect of the assessment of damages having had the benefit of listening to the plaintiffs' counsel and the plaintiffs' submissions in support of the Assessment Application. The defendant submitted at the hearing on 12 January 2023 that he was being 'personally ... targeted in this approach to recover money, not businesses'. The defendant went to say that:[80]

So yeah, in relation to all the claims put forward, obviously I can't give it because I haven't bothered with it because I really lost faith in this whole system to be honest. It's - yeah.

1. I expressly raised with the defendant the basis on which the second plaintiff has calculated that portion of the Percentage Fee which, on the plaintiffs' case, amounts to an overcharge of the agreed 4% for the Project. The defendant went to say that:[81]

Yeah, look, I think going back to the 4 per cent it's a judgment from their behalf and it's a judgment from the company that's issued the 8 per cent. So in the initial stages it was 4 per cent for the type of works. So again there's lots of history behind why there was a 4 per cent charge. But then when it went in reference to the affidavit that has been supplied in my comments, you know, normally it would be charged between 8 and I think I said 12 per cent or 10 per cent. That - and that's where they will charge. They will charge on the 8 per cent. It's their interpretation later down the track that they only wanted to apply 4 per cent. And that's come out because they're upset with their claim of a secret commission.

The other part to that secret commission that they're claiming is that I was working directly for the builder. And this is where this - this just all falls over. Where - where is that taking that into account, the works that I have done for that builder onsite and the site supervision? It's two completely separate roles. They - they said it themselves in their submission. They're two doctors that don't understand a building process.

1. On the matter of the Percentage Fee charged, the defendant's position is that the margin:[82]

...normally it would be charged between 8 and I think I said 12 per cent or 10 per cent. That - and that's where they will charge. They will charge on the 8 per cent. It's their interpretation later down the track that they only wanted to apply 4 per cent. And that's come out because they're upset with their claim of a secret commission.

1. The defendant submitted that (at all relevant times) he was acting on behalf of both Westbuild and the first and second plaintiffs. The defendant submitted that he was the project manager and site supervisor of Westbuild and that (in effect) Westbuild paid the defendant for this work within the Undisclosed Commission. The defendant submitted that under the terms of the Management Agreement with the first plaintiff and second plaintiff 'that was different because that was more to do with the design work. So liaising with the builder through the client'.
2. The defendant was not able to point to any terms of the contract documentation or any other evidence in respect of the matters in issue including the defendant's role with the builder.

1. The current position, by reason of the Default Judgment which has taken effect and has not been set aside or otherwise varied, is that liability has been established against the defendant in respect of the causes of action as articulated under the plaintiffs' SOC. Now, the plaintiffs seek to be put in a position in which they would have been had the Management Agreement been performed by the defendant in accordance with its terms and had the defendant not obtained the Undisclosed Commission. As a result of the various breaches of the Management Agreement, the plaintiffs allege loss and damage in the amount of $309,742.33.
2. The evidence of the second plaintiff as deposed in the Second Bossoff Affidavit at pars 23 to 25 is that the plaintiffs and the defendant verbally agreed for the defendant to be the project manager for the Project, that she understood that this engagement was with the defendant personally, that the defendant had made no mention that he was acting as an agent of a company or that he was receiving the Undisclosed Commission, or that any company was involved in the provision of the Services and that she trusted the defendant implicitly in relation to the defendant's provision of the Services for the Project in accordance with the Management Agreement.
3. The defendant does not dispute that the invoices were rendered to the plaintiffs under the terms of the Management Agreement. What is disputed by the defendant is that he is personally liable for the amounts claimed by the plaintiffs in respect of the Undisclosed Commission and the various excess claims. On the matter of the Undisclosed Commission, at the hearing on 12 January 2023, the defendant submitted that he was acting on behalf of both Westbuild and the plaintiffs. The defendant does not say that he disclosed this to either party. The defendant submitted that he was the project manager and site supervisor of Westbuild and was paid for this work within the Undisclosed Commission. The defendant suggests in his submissions at the hearing on 12 January 2023 that the plaintiffs had failed to take into account the works that the defendant had been doing for Westbuild. It is not clear why the defendant is of the view that the plaintiffs ought to have taken this into account in the context of the Undisclosed Commission. There is no suggestion by the defendant that he made the first plaintiff and the second plaintiff aware of any of these matters at the relevant time.

(a) the defendant required a commission for the Project;

(b) Westbuild's Percentage Fee under the terms of the Building Contract was calculated at the rate of 28% of the cost of the Works so that Mr Skewes and the defendant would each receive a 14% commission from the Project in respect of the invoices rendered by Westbuild to the plaintiffs for the cost of the Works;

(c) between approximately 8 March 2019 and approximately 25 May 2020, the defendant had issued invoices to Westbuild for a purported commission payment from Westbuild for the Project totalling $216,930.43 and this payment was made by Westbuild;

(d) from in or around June 2020, the defendant instructed Mr Skewes that he was no longer going to charge his 14% commission, being the Undisclosed Commission; and

(e) since June 2020, Mr Skewes reduced the commission rate to 14%.

1. By his email communication to the plaintiffs dated 19 August 2020, the defendant accepted that he had failed to disclose the Undisclosed Commission to the plaintiffs. Had the defendant not negotiated, agreed and received the Undisclosed Commission, Westbuild, on the evidence of Mr Skewes, would have charged the plaintiffs a lesser amount than the percentage stated in Item 5 of the Building Contract schedule of particulars entitled 'Consideration (Clause 1)'. The plaintiffs rely on the principal McBride v Christies Australia Pty Ltd[83] in support of the plaintiffs' position that they are entitled to the profits and value of any benefit that the defendant obtained as a result of breaches of the Management Agreement. I am satisfied that the defendant received the benefit of the Undisclosed Commission totalling $216,930.43 and that this payment was made by Westbuild.
2. In relation to the Westbuild Percentage Fee Excess Claim, I am satisfied that the plaintiffs were overcharged the sum of $87,364.24 by the defendant in relation to the Percentage Fee for the Build Cost of Westbuild's invoices as a result of which the plaintiffs have suffered loss and damage in the amount of $87,364.24 constituting the total of the Westbuild Percentage Fee overcharged.
3. In relation to the Balhorn Excess Percentage Fee Claim, I am satisfied that the plaintiffs were overcharged the sum of $957 by the defendant in relation to the Percentage Fee for the Balhorn invoices as a result of which the plaintiffs have suffered loss and damage in the amount of $957 constituting the total of the Percentage Fee overcharged.
4. In relation to the Mountford Excess Percentage Fee Claim, I am satisfied that the plaintiffs were overcharged the sum of $162.80 by the defendant in relation to the Percentage Fee for the Mountford invoices as a result of which the plaintiffs have suffered loss and damage in the amount of $162.80 constituting the total of the Percentage Fee overcharged.
5. In relation to the Infinity Excess Percentage Fee Claim, I am satisfied that the plaintiffs were overcharged the sum of $1,735 by the defendant in relation to the Percentage Fee for the Infinity invoices as a result of which the plaintiffs have suffered loss and damage in the amount of $1,735 constituting the total of the Percentage Fee overcharged.

1. I will hear from the parties as to the final orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8; (2009) 236 CLR 272 [13] (French CJ, Gummow, Heydon, Crennan & Kiefel JJ).

[2] Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; (1991) 174 CLR 64, 80 (Mason CJ & Dawson J).

[3] Shaddock & Associates Pty Ltd v The Council of the City of Parramatta (No 1) [1981] HCA 59; (1981) 150 CLR 225, 237 (Gibbs CJ).

[4] Wenham v Ella [1972] HCA 43; (1972) 127 CLR 454, 471 (Gibbs J).

[5] Gates v City Mutual Life Assurance Society Ltd [1986] HCA 3; (1986) 160 CLR 1, 11 - 12 (Mason, Wilson & Dawson JJ).

[6] See Commonwealth v Amann Aviation (116) (Deane J).

[7] Castle Constructions Pty Ltd v Fekala Pty Ltd [2006] NSWCA 133; (2006) 65 NSWLR 648 [24] - [25] (Mason P; Beazley JA agreeing).

[8] Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1.

[9] Peninsular and Oriental Steam Navigation Co v Johnson [1938] HCA 16; (1938) 60 CLR 189, 215.

[10] Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [483].

[11] Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [484].

[12] Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [484]; Boston Deep Sea Fishing and Ice Co v Ansell (1886) 39 Ch D 339, 363 - 364; Mahesan v Malaysia Government Offices' Co-Operative Housing Society Ltd [1979] AC 374, 383; Aequitas v AEFC Leasing Pty Ltd [2001] NSWSC 14; (2001) 19 ACLC 1006 [380].

[13] First Bossoff Affidavit, par 4, Annexure AMB-1.

[19] Second Bossoff Affidavit, pars 12 - 14.

[20] First Bossoff Affidavit; par 6. Second Bossoff Affidavit, pars 15 - 17.

[28] First Bossoff Affidavit, par 6, Annexure AMB-2.

[29] Second Bossoff Affidavit, pars 18 and 19.

[30] Skewes Affidavit, par 11, Annexure JWS-1.

[39] Second Bossoff Affidavit, par 26, Annexure AMB-3.

[41] Second Bossoff Affidavit, par 28, Annexure AMB-4; First Bossoff Affidavit, pars 9 and 10, Annexure AMB-3.

[42] Second Bossoff Affidavit, pars 29 and 30.

[43] First Bossoff Affidavit, par 11 and par 12, Annexure AMB-4 and AMB-5.

[47] Skewes Affidavit, par 15, Annexure JWS-2.

[49] First Bossoff Affidavit; par 15, Annexure AMB-6.

[51] Second Bossoff Affidavit, pars 33 - 36, Annexures AMB-6 - AMB-7; First Bossoff Affidavit, par 17, Annexure AMB-7.

[56] First Bossoff Affidavit, par 18, Annexure AMB-8.

[58] First Bossoff Affidavit, pars 20 and 21, Annexure AMB-9.

[59] First Bossoff Affidavit, pars 22 and 41, Annexures AMB-10 - AMB-19.

[60] First Bossoff Affidavit, par 22, Annexure AMB-10.

[61] First Bossoff Affidavit, par 23, Annexure AMB-11.

[62] First Bossoff Affidavit, par 24, Annexure AMB-11.

[64] First Bossoff Affidavit, par 26, Annexure AMB-12.

[66] First Bossoff Affidavit, par 28, Annexure AMB-13.

[68] First Bossoff Affidavit, par 30, Annexure AMB-14.

[69] First Bossoff Affidavit, par 31, Annexure AMB-15.

[70] First Bossoff Affidavit, par 32, Annexure AMB-15.

[72] First Bossoff Affidavit, par 34, Annexure AMB-16.

[73] First Bossoff Affidavit, par 35, Annexure AMB-17.

[74] First Bossoff Affidavit, par 36, Annexure AMB-17.

[76] First Bossoff Affidavit, par 40, Annexure AMB-19.

[83] McBride v Christie's Australia Pty Ltd [2014] NSWSC 1729.