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NSWNSWCA

Calabria Community Club Ltd v Christer Nominees Pty Ltd

[2025] NSWCA 65

Court of Appeal (NSW)|2025-04-08|Before: Kirk JA at [1], Adamson JA at [66], McHugh JA at [67]

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General information, not legal advice.

At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2025-04-08

Before

Kirk JA at [1], Adamson JA at [66], McHugh JA at [67]

Catchwords

AGENCY – authority of agent – implied actual authority –
reason to infer board’s authorisation for one of
its directors to sign on
its behalf – Jones v Dunkel inferences drawn where no evidence from board

Source

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Catchwords

AGENCY – authority of agent – implied actual authority –reason to infer board’s authorisation for one ofits directors to sign onits behalf – Jones v Dunkel inferences drawn where no evidence from boardAGENCY – service requirement under s 55(1)(c) of theProperty, Stock and Business Agents Act 2002 (NSW) – circumstancesmilitating in favour of ordering relief under s 55A from disentitlement tocommission and expenses CIVIL PROCEDURE – pleadings –failure to raise issue in pleadings below – unfair to respondent to holdthat counsel’sattempt to meet a point on the run was a concession thatthe point was in issue

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Calabria Community Club Ltd v Christer Nominees Pty Ltd [2025] NSWCA 65

Hearing dates: 28 February 2025

Date of orders: 08 April 2025

Calabria Community Club Ltd v Christer Nominees Pty Ltd [2025] NSWCA 65 | Case summary | Zoe

KIRK JA: The appellant, Calabria Community Club Ltd, is a company limited by guarantee. By 2015 it had decided to undertake a large strata development on land it owned in Prairiewood, New South Wales. At relevant times it had seven directors one of whom, Mr Rocco Leonello, was also described as the Club President. In November 2015 and then again in August 2016 Mr Leonello signed two agency agreements (the Agreements) on the Club’s behalf with the respondent, Christer Nominees Pty Ltd. That entity is the corporate vehicle of Mr Peter Willis, a real estate agent. Under each agreement Christer Nominees was to provide to the Club its marketing services in exchange for commission fees for “off the plan” apartment sales in the strata development.
Christer Nominees’ marketing campaign was successful, with 53 or 54 units sold on the day of the sales launch (14 November 2015), and 70 units having been sold by 30 August 2016, which in total were worth tens of millions of dollars. Christer Nominees continued to sell units in the development up until March 2020. However, the Club has been reticent about paying sales commission under the Agreements, with $490,000 having been paid but no more.
Christer Nominees sued the Club in the Supreme Court. In response the Club contended that the Agreements were invalid or unenforceable because first, relevantly, Mr Leonello lacked the authority to sign on its behalf; second, signed copies of the Agreements were not served upon it in accordance with the mandatory requirements under s 55(1) of the Property, Stock and Business Agents Act 2002 (NSW) (the Act) as it applied at the time (now named the Property and Stock Agents Act 2002); and third, the Club had not been served a “statement of claim” in accordance with s 36 of the Act (albeit this reason was not specifically pleaded in its defence).
The primary judge, Griffiths AJA, found for Christer Nominees, rejecting each of the Club’s contentions: Christer Nominees Pty Ltd v Calabria Community Club Ltd [2024] NSWSC 1071 (J1). One of the orders made was that the Club pay Christer Nominees $419,137.08 plus interest. On Christer Nominees’ application the primary judge subsequently varied that order pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), changing the figure of $419,137.08 to $1,328,274.15, and fixed the amount of interest at $359,641.18: Christer Nominees Pty Ltd v Calabria Community Club Ltd (No 2) [2024] NSWSC 1142 (J2) at [20].
The Club has appealed. It had originally raised eight grounds of appeal but two – grounds 3 and 8 – were not pressed. The remaining six focus on J1. The issues before this Court are as follows:
The Club asserts that the primary judge erred in finding that Mr Leonello had implied actual authority to enter into the Agreements on the Club’s behalf (grounds 1-2, in relation to each of the Agreements).
The Club says his Honour erred in finding that signed copies of the Agreements were served on the Club in accordance with s 55(1)(c) of the Act. Christer Nominees was thus disentitled to payment of any commission fees (ground 4). Further, it says the judge erred in holding in the alternative that Christer Nominees should be relieved of any non-compliance with the provision pursuant to s 55A of the Act (ground 5).
The Club claims the judge erred in finding that s 36 of the Act did not prevent Christer Nominees from commencing proceedings for recovery of commission fees by reason of it not having served a “statement of claim” on the Club. The primary judge’s primary reason was that the Club had not adequately pleaded this argument in its defence (challenged by ground 7). His Honour also found that the Club’s allegation was not established in any event (challenged by ground 6).
These complaints are not made out, noting that it is not necessary to decide on grounds 4 and 6. The appeal should be dismissed with costs.
The relevant facts of this matter were set out by the primary judge at J1 [17]-[77]. In substance they are not disputed on appeal, albeit the Club challenged some of his Honour’s conclusions from those facts. It is unnecessary to repeat the facts except to the extent required in addressing the grounds raised. I will address the issues outlined in turn, save that it is necessary first to address a preliminary issue about the appeal being out of time.

The Club did not challenge the primary judge’s summary of relevant legal principles at J1 [103]-[111]. Its complaint related to his finding of fact about Mr Leonello’s implied actual authority, submitting as follows with respect to the First Agreement:
The wording of cl 41.3 of the Constitution is restrictive. Here the Club was only authorised to execute that document in the terms of the resolution of 2 November 2015 (requiring Mr Giglio also to sign), and “an execution that didn’t comply with the resolution was ultra vires the company because it didn’t comply with 41.3 and was not saved by 41.5”. The point is reinforced by the fact that the document ultimately signed “was not in the same form as that which existed at the time of this resolution”, most notably because the marketing budget identified in the Agreement increased from some $260,000 to some $419,000.
There was “no evidence to support the view that the board, in the 12 day interval between the resolution and the execution of the agreement, decided to relax this aspect of its governance standards”. The matters identified at (a), (b), (d), (f) and (j) (quoted above at [14]) are equivocal. In particular, the “mere fact” Mr Leonello was the most influential and involved member of the Club’s board and was the director primarily involved in dealing with Christer Nominees “does not equate to an implied grant of authority to him to sign agreements on his own, without board scrutiny, that would commit the [Club] to the payment of very substantial sums of money”. Other matters which the primary judge had regard to occurred after Mr Leonello had signed the First Agreement, and so “are of no or are of limited assistance in determining whether Mr Leonello had implied actual authority to execute the agreement on the appellant’s behalf at the time he purported to do so”.
As to the first argument, the Club’s reliance on cl 41.3 of its Constitution does not advance debate. It can be accepted for the purposes of argument, in light of that clause, that if the board decides that a document may only be executed in particular circumstances then that decision must be complied with (noting that in this case Christer Nominees did not seek to rely on ss 128-129 of the Corporations Act 2001 (Cth)). That does not prevent the board from changing its mind and authorising the document to be executed in another way. Contrary to the arguments seemingly put by the Club, cl 41.3 does not require that any such decision be expressed in writing or with some particular kind of formality. No such requirement is expressed and there is no reason to find it implied.
In argument the Club seemed to accept that a “formal resolution” was not required. However, it submitted that “the language strongly suggests that however it’s authorised, it has to be expressly authorised and not merely authorised by implication”. Company constitutions are practical instruments, which militates against any such restrictive construction. As was suggested in argument, if the other six directors had all been present watching Mr Leonello alone sign the agreement, it would be surprising if this was not taken as the board having authorised the execution of the Agreement.
The fact that there were some (relatively minor) changes between the time of the board’s resolution and the signing of the Agreement also does not advance debate. It simply illustrates that a question arises about whether Mr Leonello had implied actual authority to enter into the First Agreement. Thus we come to whether the primary judge’s affirmative conclusion was soundly based.
The Club did not dispute that Mr Leonello was the most influential and involved member of the board. That fact offers some support to the conclusion that he was authorised to act as he did. But it can also be accepted that the point has limited force. The fact that a particular director tends to be dominant does not necessarily mean that the other board members in fact agreed with what that director was doing or had done.
In terms of the matters occurring after the First Agreement was signed, the Club did not dispute that subsequent conduct may throw some light on the question of fact of whether Mr Leonello had authority to sign at the time, just as subsequent conduct may be considered for certain other aspects of contract formation (see NC Seddon & RA Bigwood, Cheshire & Fifoot Law of Contract 12th Australian ed, 2022, LexisNexis, [10.16]). Rather, the Club’s argument was that such assistance here was limited. It said that the “only instance of any possible form of acquiescence by the board was the board’s presence at the sales launch – which occurred after Mr Leonello had signed the First Agency Agreement”.
Implied actual authority commonly is established by reference to a course of conduct. That does not mean it is the only way that such authority may be established. The existence of such authority on any particular occasion is a question of fact. It may be noted, incidentally, that Mr Willis did not know the terms of the resolution requiring two signatures (see J1 [120]-[121]). And there is no suggestion that Mr Leonello was acting fraudulently.
There is an air of unreality about the Club’s arguments. The Club itself argued in oral submissions that the directors “appreciated there had to be a signed agency agreement before sales commenced”. All directors were present at the sales launch on 14 November 2015. They must thus have understood that an agreement had been signed by that time. Those directors included Mr Giglio, who had been the other director the resolution authorised to co-sign the First Agreement. Moreover, Mr Giglio and another director (Mr Filippo Occhiuto) had been copied to an email from Mr Leonello to the Club’s solicitor on 13 November 2015 asking for a “final version” of the First Agreement “as we have scheduled sale of apartments for [tomorrow] morning”. The point of Mr Leonello’s request was presumably for him to sign it (as the primary judge noted at J1 [113(4)]), and with some urgency. So far as the evidence discloses, neither Mr Giglio nor Mr Occhiuto nor any other director did anything to suggest that sales could not go ahead because Mr Giglio had not co-signed the Agreement.
The primary judge inferred that Mr Leonello had possession of a copy of both of the Agreements (J1 [141]). The First Agreement had been negotiated with the Club’s solicitor. In these circumstances there is no reason to doubt his Honour’s conclusion that the Club had possession of final versions of both Agreements (whether signed or not). Yet it seems that at no stage until these proceedings was it suggested that Mr Leonello had not been authorised to sign the Agreements. Indeed, $490,000 had been paid to Christer Nominees in part fulfilment of the Club’s obligations under the Agreements.
Christer Nominees also pointed to further subsequent evidence in which the Club’s liability to it was acknowledged. The clearest example was a development deed executed in 2017 between the Club – by signatures of Mr Leonello and Mr Occhiuto – and a developer. The developer agreed to ensure that certain payments were made with respect to the development once some conditions precedent were satisfied. The identified payments included an amount of some $775,000 to “Willis Property Group” (implicitly referring to Christer Nominees) which was “outstanding” being for “50% of commission from sales to date”. The Agreements provided that 50% of commission was payable on exchange of sales contracts with the balance payable on completion.
Given in particular Mr Leonello’s email of 13 November 2015; the urgent need for the First Agreement to be signed prior to sales commencing at the launch on 14 November 2015; the absence of any evidence of protest by any director (especially Mr Giglio and Mr Occhiuto) on the day of the launch; the absence of any evidence of protest at any later time; and the positive behaviour by the Club indicating acceptance that it was bound by both Agreements, there is good reason to infer that in one way or another the Club’s board had agreed that the First Agreement could be signed by just Mr Leonello, despite the terms of its earlier resolution.
The people who were directors of the Club at the relevant times were in its camp. The Club chose not to read the affidavits it had filed in the matter. It presented no evidence filling in the blanks as to precisely what occurred which led Mr Leonello to sign the Agreements by himself. In this context both of the Jones v Dunkel inferences referred to in Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] may be drawn: first, that any such evidence would not have assisted the Club; secondly, the Court may draw with greater confidence the inference that Mr Leonello was authorised to act as he did.
As to the Second Agreement, the primary judge concluded that the finding “that Mr Leonello had implied actual authority also supports a finding that he continued to have implied authority when he executed the Second Agreement” (J1 [115]). The Club argued that even if Mr Leonello had implied actual authority to execute the First Agreement, without a “close analysis of the evidence before the court” it does not follow that he necessarily had authority “to bind the appellant to any agreement with the respondent, at any future time, and no matter as to its terms”.
The Second Agreement is dated 1 August 2016. The Club correctly submitted that there was “very little evidence as to the dealings between the respondent and Mr Leonello, or between the respondent and the other directors of the club in the period between the launch on 15 November 2015” and the execution of that Agreement. Yet its argument is unpersuasive.
Not all of the points just made apply specifically to the Second Agreement – for example, the particular circumstances on 13-14 November 2015 are not directly pertinent. But the basic case is still the same. Christer Nominees kept on selling units in the development on the Club’s behalf, doing so up until March 2020. There is no evidence of any protest by any member of the board. The development deed, acknowledging the Club’s liability, was signed after entry into the Second Agreement. And the Jones v Dunkel inferences again apply.
The primary judge was correct to conclude on the balance of probabilities that Mr Leonello had implied actual authority to execute both Agreements on behalf of the Club. Grounds 1 and 2 are not made out.

Section 55(1)(c) of the Act, as in force at the relevant time, provided that a licensee under the Act was “not entitled to any commission or expenses from a person for or in connection with services performed by the licensee” unless “a copy of the agency agreement signed by or on behalf of the licensee was served by the licensee on that person within 48 hours after the agreement was signed by or on behalf of the person”. Section 55(3) provided that the agreement may be served by facsimile transmission or such other means as the regulations allow. The then Property, Stock and Business Agents Regulation 2014 (NSW) (Regulation) prescribed various means by which an agreement may be served including, in the case of a body corporate, delivering it personally to any person concerned in the corporation’s management: reg 8(4)(b)(i). Section 55A authorises a court or tribunal to give relief from s 55(1).
The Club argued below that it had not been provided with a copy of the Agreements signed on behalf of Christer Nominees. The primary judge concluded that it was “reasonable to infer that, having signed the First and Second Agreements, Mr Leonello had possession of a copy of both those documents” (J1 [141], see also at [149]). His Honour added that “some limited support for the drawing of that inference” was that cl 17 of Sch 1 of the Regulation provided that an agent who submits or tenders a document to any person for signature must “immediately after the person has signed a document give a copy of the document to the person” (J1 [142]). In any event, the judge held that the requirements of s 55A were satisfied and that that power should be exercised (J1 [154]).
The Club asserted that his Honour erred in finding that the Agreements were served on the Club in accordance with s 55(1)(c) of the Act (ground 4). It said he also erred in various ways in holding that Christer Nominees should be relieved of any non-compliance with the provision pursuant to s 55A (ground 5). The Club needs to win on both grounds in order to succeed on this issue. Given that the focus of the primary judge was on the exercise of the s 55A discretion, it is appropriate to address ground 5 first.
Pursuant to s 55A a court or tribunal may order that commission is recoverable by an agent who would otherwise be disentitled to it under s 55. Under s 55A(2), it may not do so in circumstances of a failure to serve a copy of the agency agreement within the required time unless satisfied of the following:

The bench raised with counsel at the hearing as to what standard of appellate review should apply in relation to a decision under s 55A. The Club effectively said (without development) that it should be the “correctness” standard and not House v The King review. Christer Nominees ultimately did not dispute that assertion. The issue depends on whether the legal criteria demand a unique outcome or tolerate a range of outcomes: see Moore (A Pseudonym) v The King [2024] HCA 30; (2024) 98 ALJR 1119 at [15]. On its face the decision to make an order under s 55A is discretionary, given that subs (1) says that a court or tribunal “may order” that commission or expenses are recoverable. However, the criteria relevantly include that the Court must not make such an order unless satisfied that “failure to make the order would be unjust” (s 55A(2)(c)), which arguably is suggestive of there being one correct outcome. Given the absence of argument on the point it is sufficient to assume, without deciding, that the correctness standard applies: note similarly Ryde Developments Pty Ltd v The Property Investors Alliance Pty Ltd [2017] NSWCA 339 at [92]-[95].
The Club submitted that his Honour erred in four respects:
in finding that the Club had in its possession copies of the Agreements around the time they were executed;
in finding that the omission to comply with s 55(1)(c) was occasioned by inadvertence – the Club submitted that Mr Willis’ vast professional experience to which the primary judge had regard “itself speaks strongly against a finding of inadvertence”;
in finding that the Club paid part, rather than the full amount, of $490,000 in commission to Christer Nominees, or alternatively in considering the payment at all because it was irrelevant, or “speaks against injustice”; and
in failing to “take into account the importance of compliance with s 55(1)(c) as a mechanism to verify authority to execute the Agreements”.
The first, third and fourth points appear mainly to concern the fairness and reasonableness of ordering payment of the commission, pursuant to s 55A(2)(b), and/or issues of justice under s 55A(2)(c). The second point concerns the notion of inadvertence under s 55A(2)(a). The Club’s oral submissions focused on the inadvertence point.
As to the first of the points, as noted above the primary judge found at J1 [149] that the Club possessed copies of the Agreements on or around the time they were respectively executed. His Honour did not indicate whether he meant to refer to signed copies but it seems likely that he did not. The s 55A issue only arose on the premise that Christer Nominees had not served a signed copy of either Agreement within 48 hours. On that understanding, the gravamen of what his Honour was indicating was that this was not a case where the Club did not have a copy of agency agreements, such that it was being kept in ignorance of its rights and obligations by the failure of the agent to comply with the service requirement. Moreover, the Club was a substantial and not unsophisticated party being advised by solicitors who were actively involved in drafting of the First Agreement (see J1 [27]-[43] and [113(2)]). These points militate in favour of a finding that it would be unjust not to exercise the s 55A power.
As to the second point, the (undisputed) observation as to the vast experience of Mr Willis also tells in favour of such a conclusion. It is true that Mr Willis did not address the issue of service of the Agreements in his affidavit, seemingly because the issue was only raised by the Club shortly before trial, and Christer Nominees did not require that the Club be kept to its pleadings in this regard. Nevertheless, as the primary judge explained, Mr Willis was concerned to ensure that there was a signed agreement prior to the sales launch. That fact suggests he was well aware of his obligations under the Act. When that factor is tied to the fact that the Club had been involved in finalising the First Agreement through its solicitors, there is no plausible explanation for why he did not comply with the obligation to serve signed copies (assuming that he did not do so) other than inadvertence. There is no evidence that Mr Willis had any incentive not to serve signed copies of the Agreements.
As to the third point, the Club complains of his Honour’s reference at J1 [154] to the Club having paid “part of the $490,000”, saying that it was common ground on the pleadings that it had paid Christer Nominees the whole of that amount. That statement is not quite right. Christer Nominees had pleaded that the Club had “made, or caused to be made, $490,000 … in reduction of the [Club’s] obligations under the Agency Agreements”. That allegation was admitted. Earlier in his judgment the primary judge had accepted that that amount had been paid in reduction of the Club’s obligations for the sales, but indicated that it was unclear how much of that was paid by the Club itself and how much was paid by the developer with whom it had entered the development deed in 2017 (J [15(1)] and [77(8)]). It is in that sense that his Honour then referred to the Club having paid “part of the $490,000”. This conclusion involved no error. And even if (contrary to that conclusion) his Honour had been in error in not concluding that it was the Club itself which paid the full amount, it is far from apparent why that would weigh against making an order under s 55A(1).
The Club’s assertion that the making of a significant part payment “speaks against injustice” is opaque. As discussed above, the payment was an acknowledgement of its liability. This is not a case where, say, the agent’s customer did not know the commission rate because of a failure of the agent to provide the Agreements.
As for the fourth point, reference to the “importance of compliance with s 55(1)(c)” does not greatly advance debate when the starting premise in considering an application under s 55A is that a requirement under s 55 has not been complied with. It is not necessary for a court or tribunal considering such an application expressly to state that compliance with the requirements in s 55 is important.
The Club made a more general argument that failure to serve the Second Agreement was even more serious than for the First, because the board had been more involved in the leadup to the signing of the First, and the Second “tied the appellant to a 24-month exclusive agency period with the respondent”. Yet the two Agreements are in substantially the same terms, leaving aside the applicable time period. In that time period the Club continued to benefit from the provision of Christer Nominees’ sales services, as it knew. And, as confirmed above, both Agreements were entered into by Mr Leonello based on implied actual authority.
No error has been shown in the primary judge’s reasons for granting an order under s 55A. Even if some error had been established, I agree with the primary judge’s conclusion that this was a clear case for an exercise of the power under s 55A as regards both Agreements. It is unnecessary to address ground 4.

The Club complained that his Honour erred in finding that the failure to comply with s 36 had not adequately been pleaded such as to be a complete answer to the claim (ground 7), and erred in concluding that the section had been complied with (ground 6). Again, it is necessary for the Club to succeed on both grounds to be successful on this issue.
It suffices to address the pleading issue, save that it is appropriate to note the following with respect to the finding of service by post. The letter of 14 August 2020 is addressed to the Club, attention Mr Leonello, “c/- Occhiuto Partners”, then giving a street address for that firm. Just underneath and to the right of that address it said “By email:”, then giving an email address for Mr Occhiuto. It was not in dispute that the letter and its attachment were sent by email. For my part, I would not infer that a letter addressed in that manner in 2020 was also sent by post simply because it included a street address. It was then and is still a relatively common practice to include a street address of the addressee in formal correspondence, even if the correspondence manifests that it is being transmitted by email, and even if it is only being transmitted in that manner. Here, the fact of service by post (or personally) is a matter which could readily have been proved by, for example, brief affidavit evidence. There was no such evidence. That absence is explicable if the point was not properly in issue.
The Club’s defence did not contain any reference to s 36. The Club’s written submissions to this Court appeared to suggest that the provision could be taken to be in issue by reason of the parties’ reference to the Act in their pleadings, or because Christer Nominees generally bore the onus of proof. That is not so. Rule 14.14(2) of the UCPR requires that a defendant must plead specifically any matter that may take the opposite party by surprise, or which the defendant alleges makes any claim of the opposite party not maintainable, or which raises matters of fact not arising out of the preceding pleading. In oral submissions, senior counsel for the Club properly accepted that the rule applies and the Club’s reliance on s 36 should have been specifically pleaded.
Pleadings and particulars serve to afford procedural fairness to the parties and to define the issues for decision in the litigation: see eg Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70. Given its failure to raise the issue in its pleadings, the Club had to resort to the argument that this was one of those cases where “the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial”: quoting Dare v Pulham at 664. The burden of persuasion to establish that this was such a case rested with the Club. Its argument is not made out.
The Club argued that the point was raised prior to the hearing by exchange of a document headed “memorandum of agreed and disputed facts”. The document provided to the Court was undated and it is unknown when it was exchanged between the parties. It was included in the court book below but not tendered in evidence. The primary judge quoted its content at J1 [14]. It relevantly includes, as a disputed fact, “[w]hether the plaintiff served a statement of claim prior to having commenced these proceedings and in a form that satisfied the requirements of Section 36” of the Act. It appears from something counsel for Christer Nominees said to the primary judge that this document was drafted by Christer Nominees and sent to the Club’s previous solicitors. The Club changed its solicitors at some stage prior to 29 July 2024, on which date a notice of change of solicitors was filed.
On that basis the Club sought to argue that Christer Nominees knew prior to 29 July 2024 that compliance with s 36 – including both subs (1) and (2) – was in dispute. The hearing was set for 6 August 2024. Yet we do not know if the version of the memorandum of agreed and disputed facts provided to the primary judge was in the same form as the version drafted by Christer Nominees and sent to the Club’s previous solicitors. Moreover, even if it had been in that form by 29 July 2024 there were further relevant events.
On 29 July 2024 the Club’s new solicitor filed a notice of motion seeking, amongst other things, either that the proceedings be dismissed for Christer Nominees’ non-compliance with s 36(2), or alternatively leave be given for the Club to amend its defence by adding a pleading that Christer Nominees’ claim must fail for that reason. The reference only to s 36(2) suggested that even if the Club had previously raised an issue about s 36(1) the point was no longer pressed.
That clear implication was then muddied by written submissions provided by the Club, dated 4 August 2024, in which, under a heading “The Notice of Motion filed 29 July 2024”, the Club sought to raise points with respect to both subs (1) and (2) of s 36. Not content with that level of confusion, at the commencement of the hearing on 6 August 2024 senior counsel for the Club said it was not pressing its notice of motion of 29 July 2024. In context, that communicated it was not seeking to raise any s 36 argument.
Despite that fact, senior counsel for the Club – who it seemed had only just been briefed – then referred to both subs (1) and (2) in his brief oral opening. The primary judge queried the Club’s position given its notice of motion was not pressed, asking: “[i]s your fallback position that, ‘we don’t need to amend the defence, because this point is adequately raised by the defence as filed’?” Senior counsel answered:

As explained at [52] above, the Club now accepts that argument to be incorrect.
Counsel for Christer Nominees responded by saying that “my friend’s sought to raise in his opening matters that are not pleaded anywhere”, referring to “the s 36 point”. He added, however, that “I can, in one respect, overcome this by simply tendering a document in due course”. His Honour then asked “is there any prejudice if this point is run”, saying that “[i]f you have an opportunity to tender the document that you refer to, which you say is a complete answer to the s 36(2) point, it doesn’t appear to me as though there’d be much sense in us dwelling on it”. Counsel responded, rather ambiguously, “[n]o, we believe that’s the position”. Counsel seems to have been referring to the correspondence of 14 August 2020, which became Exhibit 2. A few lines later counsel said “I will, in due course, seek to tender a document that will, we believe, overcome it”, although it is not clear what the “it” was that he was referring to in that regard.
The opening submissions of counsel for Christer Nominees amounted to saying that he could, he believed, “in one respect” overcome the prejudice by tendering Exhibit 2, the “one respect” seemingly referring to s 36(2). Counsel for Christer Nominees said later in the hearing that “had this issue not been raised at the heel of the hunt … we might’ve been able to obtain better evidence of that”, seemingly referring to service by post as required by s 36(1). He further said, near the conclusion of the hearing, that “[h]ad there been a pleaded defence that went to [s 36], then it might be assumed that more effort would have been taken to obtain evidence about it”. The hearing concluded within one day.
The Club’s position on s 36 was all over the place. This case illustrates the importance of proper pleadings and particulars to identify for the Court and the opposing parties what matters are in dispute.
Counsel for Christer Nominees could and should have been clearer in saying that it had been prejudiced by the issue not having been pleaded, and in insisting that the Club be kept to its pleaded case. Even so, he had not conceded that the issue was properly raised and argued. It would be unfair to Christer Nominees to hold that his attempt to meet the point on the run was a concession that the s 36 points were in issue. The primary judge effectively found as much at J1 [156].
In this context, the primary judge was correct to conclude that as non-compliance with s 36 had not been pleaded by the Club it was not open for it to rely on the point. Ground 7 is not made out. It is unnecessary to say anything more with respect to ground 6.