Christer Nominees Pty Ltd v Calabria Community Club Ltd

Supreme Court of NSW|2024-08-06

al (1990) 170 CLR 146; [1990] HCA 32 Oades v Ewart (1960) 61 SR (NSW) 89; [1961] NSWR 45 Terry Pfeiffer v Connors [2000] NSWSC 452 Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 Texts Cited: J D Heydon, Heydon on Contract: The General Part (2019, Lawbook Co) R P Austin, H A J Ford and I M Ramsay, Company Directors: Principles of Law and Corporate Governance (2005, LexisNexis Butterworths) Category: Principal judgment Parties: Christer Nominees Pty Ltd (Plaintiff) Calabria Community Club Ltd (Defendant) Representation: Counsel: P Wallis (Plaintiff) R Angyal SC (Defendant)

Solicitors: Piper Alderman (Plaintiff) Hall Partners (Defendant) File Number(s): 2020/00348107 Publication restriction: Nil

JUDGMENT

The plaintiff, Christer Nominees Pty Ltd, seeks to recover what it contends are unpaid commission fees for real estate services it provided for the defendant in respect of the marketing and selling of multiple units in a strata development carried out by the defendant on its land in Prairiewood NSW (Property). The plaintiff claims an amount of approximately $420,000 plus interest.
In brief, the plaintiff relies upon what it claims are two exclusive and binding agency agreements. The first is an agreement dated 1 July 2015, which it contends was not executed until around 14 November 2015 (First Agreement) and applied for 12 months. The second is an agreement dated 1 August 2016 (Second Agreement) which applied for 24 months. Both agreements were signed by only one of the defendant's directors, which the defendant now says is insufficient to create a binding agreement (this issue was not squarely raised on the face of the defence).
The defendant, Calabria Community Club (Club), is a company limited by guarantee. At the relevant times, the Club had seven directors. A copy of its Constitution dated 17 January 2006 is in evidence. The Club denies that it entered into either the First or Second Agreements. As mentioned, the Club also contends that neither agreement was validly executed because each had not been signed by two of its directors in accordance with a resolution passed by the Club's board on 2 November 2015 (prior to the purported execution date of the First Agreement). In a cross-claim filed on 8 April 2021, the Club claimed that there was a separate binding exclusive agency agreement between the parties, which was also said to be dated 1 July 2015.
The Club also claims that the plaintiff is prevented from recovering the alleged unpaid commission fees because of the plaintiff's failure to comply with several requirements in the Property and Stock Agents Act 2002 (NSW) and the Property and Stock Agents Regulation 2014 (NSW) (repealed). In particular, it claims that the plaintiff has not complied with requirements imposed by ss 28, 36, 55 and 56 of that Act.
It may be interpolated here that although the defence refers to the Property and Stock Agents Act 2002 (NSW) and Property and Stock Agents Regulation 2014 (NSW), after the matter was raised by the Court at the hearing, the parties agreed that the relevant legislation for the purpose of the proceeding is the Property, Stock and Business Agents Act 2002 (nsw) (PSBA Act) and the Property, Stock and Business Agents Regulation 2014 (NSW) (Regulation) as in force in 2015 and 2016.
It should be noted that, at the commencement of the hearing, the Club indicated that it did not press either its cross-claim, or its notice of motion filed on 29 July 2024. Nor did it read any of the affidavit evidence it had filed in the proceeding.
The primary issues for determination are as follows: 1. Do the First and Second Agreements bind the parties? This raises several issues relating to whether the agreements were validly executed by the Club, whether there was an intention to enter into binding legal agreements and whether the single director who signed both the agreements had authority to do so. 2. Is the plaintiff entitled to recover any commission fees because it did not comply with the requirement in s 55(1)(a) of the PSBA Act (which requires that the services to which the commission relates were performed pursuant to an agreement in writing which is signed by or on behalf of both the person from whom the commission is sought and the agent)? 3. Is the plaintiff barred from recovering any commission fees because it did not comply with s 55(1)(c) of the PSBA Act (which requires that a copy of an agency agreement signed by the agent be served on the principal within 48 hours after the agreement was signed by or on behalf of the principal)? 4. If there is non-compliance with any requirement imposed by s 55, does s 55A of the PSBA Act apply so as to ameliorate the non-compliance? 5. Did the plaintiff comply with s 36 of the PSBA Act (which provides that no action or other proceeding can be commenced by a licensee to recover commission until the expiration of 28 days after a statement of claim has been served personally or by post on, in this case, the Club)? 6. Did the plaintiff comply with s 28(1) of the PSBA Act (which requires it to have a registered office within NSW)? 7. Did the plaintiff comply with s 56 of the PSBA Act (which prohibits a real estate agent from entering into an agency agreement with a person for the sale of residential property unless the agent has provided the person with a copy of the "Approved Guide" (as defined by s 56(2)) within the prescribed time)?

The plaintiff's evidence and findings of fact

The plaintiff read an affidavit dated 21 July 2023 by Mr Peter Willis, who is the sole director and shareholder of the plaintiff. The affidavit refers to numerous documents, all of which were admitted into evidence without objection noting, however, that some of the documents were not in chronological order (which created some confusion). Mr Willis was not cross-examined.
The plaintiff also relied upon a notice to admit facts dated 19 November 2021. It was common ground that the Club did not respond to this notice within the prescribed 14 days. Consequently, under r 17.3 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), those facts are taken to be admitted.
The admitted facts are as follows: 1. For each respective apartment identified in Annexure A herein, the plaintiff introduced a purchaser or purchasers who executed a contract for sale (whether or not that contract for sale proceeded to settlement) for apartments in the strata plan SP102232 (the Strata Plan). 2. The plaintiff introduced a purchaser for apartment C702 (lot 69 of the Strata Plan), who entered a contract for purchase of the apartment for purchase price of $665,000, such contract which did not proceed to settlement. 3. The plaintiff introduced a replacement purchaser for apartment C702 (lot 69 of the Strata Plan), who entered a contract for purchase of the apartment for purchase price of $664,900, whose contract did proceed to settlement. 4. Each contract for sale entered by the Club for each respective lot in Annexure A herein have proceeded to settlement.
Annexure A identified 89 apartments by both lot and apartment number. The Club is taken to have admitted that the plaintiff introduced a purchaser or purchasers who executed a contract for sale in respect of those 89 apartments and that each such contract proceeded to settlement.
The notice to admit facts became Exhibit 3 in the proceeding. It was admitted over the Club's objection. That objection related to the fact that a copy of the notice to admit facts which was attached to Mr Willis' affidavit did not include the document referred to therein as Annexure A.
A complete copy of the notice to admit facts (including Annexure A) was, however, included in the Court Book (CB) behind tab 8. Mr Angyal SC, who appeared for the Club, objected to the latter copy of the notice to admit facts being admitted into evidence because it was different from the notice to admit facts referred to in Mr Willis' affidavit. The objection was overruled.
It is convenient now to refer to a memorandum of agreed and disputed facts, a copy of which was also included in the CB. It states: 1. The following facts are agreed: 1.1 The plaintiff carried on a business as a real estate agent. 1.2 The defendant is a company limited by guarantee that at all material times carried on business as a licensed community recreation club. 1.3 The defendant was at all material times the registered proprietor of the Property. 1.4 The defendant obtained development approval for residential strata development of Property (Development). 1.5 The plaintiff and an officer of the defendant executed a document being an exclusive agency agreement during the second half of 2015 and dated 1 July 2015 (First Agency Agreement) under which the plaintiff was purportedly appointed by the defendant as the exclusive agent to sell the Units resulting from the Development, for a period of 12 months commencing on 1 July 2015 and in accordance with the terms of the First Agency Agreement. 1.6 On or about 1 August 2016, the plaintiff forwarded a second exclusive agency agreement to an officer of the defendant that the officer purportedly signed (Second Agency Agreement). 1.7 The plaintiff introduced buyers to the defendant between November 2015 and March 2020. These buyers entered into contracts of sale with the defendant. 1.8 The defendant has paid the plaintiff the sum of $490,000 in part compliance with the defendant's obligations under the First Agency Agreement and/or the Second Agency Agreement referred to above. (First Agency Agreement and Second Agency Agreement collectively, Agency Agreements) 1.9 The Agency Agreements, if enforceable, provide that the commission, based on the gross value of all of the sales is a sum of $1,652,976.50, plus GST, (if chargeable by the plaintiff). 1.10 Clause 10 of each of the Agency Agreements provides that the defendant must pay the commission due within 14 days of receipt of a tax invoice issued by the plaintiff. 1.11 Clause 11.4 of each of the Agency Agreements provides: (a) that if any amount due and payable pursuant to the agreement is not paid it will bear interest at the rate of 6% per annum calculated form the due date until the date it is paid; and (b) that in addition the party in default must pay any costs incurred by the party to whom the money is owed in collection of the monies. 1.12 The Agency Agreements, if enforceable, also provide that the defendant pay the advertising and marketing expenses for the sales as agreed between the plaintiff and the defendant. 1.13 The plaintiff has served a notice to admit facts requiring the defendant to admit that for each respective Unit identified in the Annexure 1, (herein), that the plaintiff introduced purchasers who executed a contract for sale, (whether or not that contract for sale proceeded to settlement), for the Units in strata plan SP102232, (being the Strata Plan of the Property approved by Fairfield City Council, registered under that registered number on 6 November 2020), as was developed pursuant to the Development. 1.14 Under the notice, the plaintiff required that the defendant admit each contract for sale as having been entered by the defendant for each respective Unit in Schedule 1, as having proceeded to settlement or as otherwise having been terminated, and that in either case the defendant is entitled to be paid commission pursuant to the Agency Agreements. 1.15 The plaintiff has pleaded in the proceedings that the First Agreement and the Second Agreement (the Agency Agreements) are the subject of the Property and Stock and Agents Act 2002 (Agents Act), with which the plaintiff has agreed so far as concerns the First Agreement, and it has denied completely the existence of the Second Agreement. 1.16 The plaintiff nevertheless agrees that in the event that the Second Agreement were found to exist, that it is also bound by the Act. 2. The following facts are disputed: 2.1 Whether or not the Agreements are enforceable and if so, to what extent. 2.2 That the plaintiff breached its fiduciary and other duties to the defendant in the course of the retainer; 2.3 If so, whether or not damages were sustained; 2.4 The entitlement of the Plaintiff to have charged GST, given that the Defendant was not registered for GST at the time that the invoices were issued. 2.5 Whether 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 Property and Stock Agents Act.
There are two things to note about this memorandum: 1. It was not formally tendered in evidence but, with three exceptions, I would make the findings of fact set out in [1] thereto as I consider that they are supported by the evidence. The first exception relates to the latter half of [1.15], and [1.16]. Based upon [5] and [13] of the defence it appears that the reference in [1.15] and [1.16] of the memorandum to the "plaintiff" is in error and should refer to the "defendant". The second exception relates to [1.8]. The evidence leaves unclear how much of the $490,000 was in fact paid by the Club but it appears that it paid most of that amount. The third exception relates to [1.9]. The figure of $1,652,976.50 plus GST does not accord with the figures in Annexure A to the statement of claim as representing the total amount of commission fees owing to the plaintiff. It is also at odds with Mr Willis' evidence, which identifies an amount of $419,137.08 being claimed for outstanding commission fees, together with interest. 2. Secondly, in circumstances where the Club did not press its cross-claim the disputed facts identified in [2.2] to [2.4] are not relevant and nothing more needs to be said about them.
Unless otherwise indicated, I consider that the following matters are established by the evidence to the requisite degree.
Mr Willis is a very experienced licensed real estate agent, having been in the industry for approximately 22 years. He specialises in the marketing of "off the plan" project developments. He has worked with some significant property developers, including Mirvac and Meriton.
In around September 2014, Mr Willis was introduced to Mr Gary Watts, who was the project manager appointed by the Club for its proposed development of the Property. This involved more than 100 apartments being sold "off the plan". Mr Watts' firm was called GJW Consultancy.
The plaintiff, together with two other well-known real estate agencies, submitted tenders in respect of the Club's proposed development.
Mr Willis presented the plaintiff's tender at a meeting held around July 2015 which was attended by several of the Club's directors. Mr Willis brought with him to the tender meeting the following three documents: a proposal of how most effectively to sell the units, a pricing matrix and a marketing budget. In his affidavit, Mr Willis said that these documents could be found in the exhibit to his affidavit and he provided page references. Those references were accurate insofar as the pricing matrix and the marketing budget are concerned. But the document in the exhibit said by Mr Willis to be the tender proposal is actually a letter dated 30 August 2016 from Mr Willis to Mr Watts, to which I will return. I understand the tender proposal document to be a 15-page document which is included elsewhere in the exhibit and which has on its front page: CALABRIA COMMUNITY CLUB DEVELOPMENT Prepared for GJW Consultancy
The two-page pricing matrix document which Mr Willis presented at the July 2015 meeting identifies a figure of $418,900 as the marketing and advertising costs for what was described as three stages of the proposed development. The marketing budget is a separate nine-page document, styled "the Marketing and Advertising Cost Analysis Programme" and headed "Appendix 1". It shows a figure of $259,377 as the cost of advertising for all three stages.
After making his presentation, Mr Willis left the room while the board voted on who would be the successful tenderer. Later, Mr Watts told Mr Willis that the plaintiff was the successful tenderer.
I accept Mr Willis' evidence that, after his tender was accepted by the Club, his main point of contact was with Mr Watts (and perhaps to a lesser extent the Club's solicitor). I accept Mr Willis' evidence that, other than as indicated in his affidavit, he did not "deal directly with the board or individual directors of the Club, except during periodic meetings" which were also attended by Mr Watts. As will be developed later, however, Mr Willis was also frequently involved in correspondence with the Club's President, Mr Rocco Leonello, about issues which arose concerning the development.
By a letter dated 14 July 2015, Mr Willis wrote to Mr Watts regarding the agency agreement. The letter referred to Mr Willis having met with the board to "discuss the exclusive agency agreement or the sale of the apartments for the Calabria Club, and to discuss and agree to terms with the board regarding the boards [sic] Solicitors recommendations". The letter contained a list of "changes to the agreement" which Mr Willis said had been "discussed and agreed by the board". The letter set out 18 such changes. Mr Willis concluded the letter by saying that the plaintiff looked forward "to getting started" and that if necessary, the plaintiff's solicitor could be available for a conference call or meeting.
There was a meeting on 18 September 2015 which was attended by Mr Willis, a colleague of Mr Watts and two architects. They discussed marketing the apartments.
It is notable that the minutes of that meeting were copied to Mr Leonello (and no other director of the Club). This illustrates Mr Leonello's key personal role in the development on behalf of the Club (to which I will return). The minutes also record Mr Willis needing to supply "a Fixtures and Finishes" to one of the architects and also to Mr Leonello to review.
On 24 September 2015, the Club's solicitors wrote to Mr Willis confirming that they had instructions to act on behalf of the Club. The solicitors confirmed that earlier in September 2015, Mr Leonello had delivered to their firm "an Exclusive Marketing and Sale Agreement which we understand you submitted to the Club". The solicitors stated that they had been instructed to advise the Club in relation to that proposed agreement. Several changes to the proposed agreement were then set out, including some changes which the solicitors said might be controversial. The letter concluded with the statement that the Club was "keen to finalise the matter as it expects to have final Development Consent shortly and wishes to commence the marketing program".
On 1 October 2015, Mr Willis sent an email to Mr Watts in which he raised some concerns regarding the solicitors' letter. He said that it was his understanding that agreement had been reached at the board meeting as to the terms of the exclusive agency agreement. He said that the solicitors' letter "has over turned [sic] everything the board has voted on and he is now once again asking us to work under an open agency agreement".
Mr Willis' email stated (emphasis added): 1. I can't work under the proposal that he is suggesting 2. I can work under the agreement that was agreed to by the board which we sent a copy of to Mr Mulally 3. I don't understand what is happening here and are [sic] concerned with these changes considering the club has given me $50,313 marketing money under the term of our original agreement agreed to by the board 4. As licensed agents we can't work with out [sic] a signed agency agreement and at this point my advice is stop preparing for our launch in 19 days as I am outside the law of a licensed agent.
Despite those stated concerns, it is evident that the plaintiff continued to prepare for a sales launch. By about 1 November 2015, it had built and decorated a kiosk in the Stockland Mall, which was across the road from the development. Marketing materials were available to generate interest in the development, but no sales were offered at the kiosk.
The next significant event occurred on 2 November 2015, when there was a meeting of the Club's board, part of which Mr Willis attended. The board approved a price list for the sale of each apartment. Most of its pages are signed by five directors of the Club, namely, Mr Leonello, Mr Giglio, Ms Romano, Mr Pazzano and Mr Occhiuto. There is handwriting on the first page of the price list which states: "This is the price list suggested by Willis Group". The price list is dated 2 November 2015 and, on its first page, bears the signature of only four directors. On pages 2, 3 and 4, there are five signatures. It is unclear why Mr Pazzano signed those pages but, evidently, not the first page. The parties did not suggest that this was significant. What may be significant, however, is that five directors of the Club were willing on 2 November 2015 to approve the plaintiff's price list for the sale of the apartments in anticipation of an agency agreement between the plaintiff and the Club being finalised shortly thereafter.
The minutes of the 2 November 2015 meeting record there being five directors present (including Mr Leonello, Mr Giglio and Mr Occhiuto). They also record Mr Willis as being present and providing a sales and marketing update to the board. The minutes record that the website for the development would go "live" on Wednesday (being 4 November 2015). The minutes record Mr Willis leaving the meeting at 9:17pm after the presentation and discussion had finished. The minutes then record a resolution that the board approve an "apartment price list" provided by Mr Willis.
The 2 November 2015 minutes also record the following resolution (which appears to have been passed after Mr Willis left the meeting): Marketing Agreement: Resolved that Rocco Leonello and Guiseppe Giglio sign the marketing agreement on behalf of the board.
It may be interpolated at this point that the Club's Constitution contains the following clause relating to execution of documents: 41.1 The Company may execute a document without a common seal if the document is signed by: (a) three directors of the Company; or (b) a director and a company secretary of the Company. 41.2 If the Company has a common seal, it may execute a document if the seal is fixed to the document and the fixing of the seal is witnessed by: (a) two directors of the Company; or (b) a director and a company secretary of the Company. 41.3 The Company may execute a document only if authorised by the Directors or by a committee of directors authorised by the Directors to do so. 41.4 The Directors may decide, generally or in a particular case, that a director or company secretary may sign certificates for securities of the Company by mechanical or other means. 41.5 This clause does not limit the ways in which the Company may execute a document (including a deed).
I will return below to discuss the meaning and effect of cl 41. It may be assumed, however, that despite the reference in cl 41.1 to three directors executing a document without the Club's common seal, the board apparently relied upon cl 41.5 in passing the 2 November 2015 resolution authorising two directors to sign the marketing agreement on behalf of the board.
On 3 November 2015, Mr Willis sent an email to the Club's solicitors. He said that "we have finally come to an agreement with the Calabria Club board regarding matters with the agency agreement". He referred to the board meeting the previous night (i.e. 2 November 2015) where the plaintiff agreed with the board that "they were holding back 20 units". This suggests that the agency agreement related to a total of 86 units in the development. Mr Willis stated that this change had been made to the draft agreement, together with other amendments which "the board voted on". The email states that a copy of the amended agency agreement was attached (noting, however, that there was no attachment to this email in the CB). Mr Willis urged the solicitor to discuss the matter with the Club the following day "as we need the agreement signed by tomorrow as we are launching the development this Thursday the 5th November". This accords with Mr Willis' previously stated concern to ensure compliance with any legal requirement that there be a written agency agreement before any sales were made (see [29] above). It also highlights that the proposed sales launch was imminent.
On the morning of 4 November 2015, the Club's solicitor emailed Mr Willis acknowledging receipt of this email. He said he would read the amended agency agreement and revert if he saw any problems.
In the early afternoon of 4 November 2015, the solicitor sent a detailed email response regarding the revised agency agreement, copying in two of the Club's directors (the email addresses indicate that the two directors were Mr Occhiuto and Mr Leonello). After referring to the history of the exchanges and negotiations in finalising the agency agreement, the solicitor identified 15 specific matters which he considered had to be addressed so that the agreement represented the "present position between the parties". The email concluded with the solicitor stating that implementation of the proposed changes would mean that the agency agreement was "internally consistent" and he "would be happy to recommend to my clients that they sign same once they have confirmed details such as the commission rate and term of the agreement". He invited Mr Willis' response.
On 5 November 2015, Mr Willis sent an email at 7:05pm to the Club's solicitors, copying in the same two directors (being Mr Leonello and Mr Occhiuto). Mr Willis confirmed that he had made all the changes recommended by the solicitor and wrote that the agreement was attached (no such attachment was included in the evidence). The proposed sales launch was deferred once more.
On 11 November 2015, the Club's solicitors emailed Mr Willis (again copying in the same two directors) in which he acknowledged receipt of the amended document. He then added that, having reviewed it, there were "a couple of minor matters that need final attention". He then identified four such matters that he described as "essentially housekeeping amendments". He asked Mr Willis to forward the agency agreement in Word form so that the solicitors could make the corrections "and get it to you and to our clients for execution".
On 12 November 2015, the Club's solicitors emailed Mr Willis and attached what was described as "the corrected agency agreement". Mr Willis was asked to advise whether he was happy with the document, in which case the solicitor would write to his client and confirm that it was in order to sign.
Attached to this email is a copy of a document styled "Exclusive Marketing and Sales Agreement". Appendix 1 to that document is a copy of the advertising and marketing budget referred to at [21] above, including the estimate of $259,377 for advertising for all three stages. This copy of the agency agreement is unsigned. It is also undated.
By an email dated 13 November 2015, which Mr Leonello sent to the Club's solicitors (copying in Mr Willis and two other directors of the Club: Mr Occhiuto and Mr Giglio), Mr Leonello said that he had understood from Mr Willis that the solicitor would send Mr Leonello "a copy of the final version yesterday" (i.e. 12 November). Mr Leonello asked that it be sent to him today because there were scheduled sales of apartments the following morning (i.e. Saturday 14 November 2015). It may reasonably be inferred from this email that, like Mr Willis, Mr Leonello was very conscious of the need to finalise the agency agreement before any apartments were sold. It is also notable that Mr Leonello asked the solicitor to send a copy of the final version to him, and not to any other director. Finally, at least three directors of the board knew that the sales launch was planned to proceed the next day.

Some relevant features of the First and Second Agreements

The evidence included a document dated 1 July 2015 and styled "Exclusive Marketing and Sales Agreement". It is executed by Mr Leonello (both President and a director of the Club) on behalf of the Club and Mr Willis on behalf of the plaintiff. This is the document which the plaintiff contends is the First Agreement.
Mr Willis, who was not cross-examined, said that he did not know why the document is dated 1 July 2015 even though he said that "it was negotiated and signed in November 2015". I accept that evidence. I find that the First Agreement was signed by Mr Willis and Mr Leonello around 14 November 2015, coinciding with the date of the sales launch.
It is desirable to set out page 14 of the First Agreement which is the signature page:
The following aspects of the signature page should be noted: 1. It states that the parties to the First Agreement have signed in accordance with s 127(1) of the Corporations Act 2001 (Cth). 2. Only Mr Leonello signed on behalf of the Club in his capacity as President, and no signature or name has been provided in respect of the provision for a second signatory on behalf of the Club. 3. It is unclear whether or not the expression "in the presence of" refers to a witness but, in any event, neither signature is witnessed.
The signature page in the Second Agreement is in substantially similar terms to that in the First Agreement, save that although provision is made for a second person to sign on behalf of the Club, the words "Director" and "Full name" have been omitted:
Clause 15 of the First Agreement (which is also repeated in the Second Agreement) contains various warranties, including the following warranty relating to execution of the agency agreement: 15.7 If this Agreement is executed other than under the common seal of a party, the person who executes the Agreement for and on behalf of that company warrants to the others that he/she has been duly authorised to execute this Agreement for and on behalf of the relevant company.
Clause 15.7 may have some relevance to a central question of whether or not the First and Second Agreements gave rise to binding and enforceable legal rights and obligations in circumstances where both agreements were signed by only one director of the Club and were not executed under the Club's common seal. The parties were invited to provide post-hearing written submissions on this question. They both did so.
Clause 18.4 (in both the First and Second Agreements) identifies the addresses and facsimile numbers of the parties for service of Notices. In the case of the Club it is specified that service should be directed to the attention of Mr Rocco Leonello (which reinforces his prominent personal role in the matter) as follows: Principal: CALABRIA COMMUNITY CLUB LTD Attention: Mr Rocco Leonello … Address: c/- Occhiuto Partners … Ingleburn NSW 2565 …
Clause 33.1 of the First Agreement addresses the subject of the Advertising and Marketing Investment. It is stated in cl 33.1 that the Advertising and Marketing programme will be implemented in 3 stages and the sub-clause refers to "Appendix 1". In the CB, there is an attachment to the document, but it is not styled "Appendix 1". The attachment is a two-page document and is a duplicate of the "pricing matrix" document which Mr Willis described as forming part of the tender documents. That document identifies an amount of $418,900 for the 3 stages of marketing and advertising. The Club highlights the discrepancy between that figure of $418,900 compared with the lower figure of $259,377 set out in the "Marketing and Advertising Cost Analysis Programme" headed Appendix 1, which is the third document which Mr Willis said he brought to the tender meeting. As will emerge, there is a differently worded clause relating to advertising and marketing in the Second Agreement.
On 14 November 2015, there was a sales launch at the Warwick Farm Holiday Inn, which included a display kiosk..
Mr Willis deposed that, in the lead up to the launch event, he attended a marketing meeting at which Mr Watts and Mr Leonello were present and at which the board voted and agreed to a marketing plan. I presume this evidence is directed to the board's meeting on 2 November 2015. In any event, I accept Mr Willis' evidence that at the marketing meeting Mr Leonello told him to obtain as many sales as quickly as possible because the Club needed to get at least $37 million on the first day. Mr Willis understood this related to a need to secure construction finance.
Mr Willis said that the launch of pre-sales went well and "many purchasers wanted to execute their contracts immediately" (there being a master contract at that time). He said that the success of the event caused him to increase the price list and circulate it to his salespeople. He said that Mr Leonello had previously agreed to him doing this where he could. I accept that evidence. Again, it reinforces the prominent role of Mr Leonello on behalf of the Club.
The Club's directors were present in the restaurant adjacent to the area where the launch took place. Approximately 53 or 54 units were sold on that day, however, some did not proceed either to formal exchange of contract or to completion.
Mr Willis attached to his affidavit a series of correspondence and sales spreadsheets, which documented sales shortly after they occurred. The statement of claim had three annexures; Annexure A listed all the apartments sold by the plaintiff during the period 14 November 2015 - 16 March 2020. Annexure B listed all the payments for commission fees received by the plaintiff during the period 14 November 2015 to 15 August 2019. Annexure C recorded interest calculations on outstanding commission fees.
The alleged Second Agreement gave the plaintiff an exclusive agency for a period of 24 months (with provision in cl 4.1 for it to continue thereafter) . The document is signed by Mr Willis and Mr Leonello. It is dated 1 August 2016. The plaintiff continued to sell units in the development up until March 2020.
As mentioned, part of cl 33 of the Second Agreement, which deals with advertising and marketing, is in different terms to the comparable clause in the First Agreement. In particular, cl 33.1 and 33.2 of the Second Agreement stated: 33.1 As per the attached marketing expenditure and timeline, the investment cost for the Advertising & Marketing programme is $418,900 +gst. 33.2 The Advertising & Marketing programme will be implemented in 3 stages:- a) Stage 1 - $179,500 +gst payment terms - see 33.3 1. Pre Development Approval Expenses = $92,500 +gst 2. Ongoing Marketing and Advertising = $87,000 +gst b) Stage 2 - $183,000 +gst payment terms TBA c) Stage 3 - $56,400 +gst payment terms TBA Total = $418,900 +gst

It is notable that the figure of $418,900 (plus GST) is the same figure as that in the "pricing matrix" which was attached to the First Agreement. Although there is a reference in cl 33.1 to an "attached marketing expenditure and timeline", no such document was attached to the copy of the Second Agreement in the evidence.
As mentioned, the documents exhibited to Mr Willis' affidavit were not all in chronological order. An example is the letter dated 30 August 2016, which Mr Willis apparently sent to Mr Watts (although it is unclear how this was done because it displays neither a postal nor email address). The letter contains a statement that the plaintiff was appointed in November 2015 as exclusive agent. The letter records that the Club had a sales target of 35 sales before Christmas and it states that the plaintiff "advised the Club that this was too small a window to set up the marketing strategy and achieve this sales target but it went ahead anyway". The letter states that the launch went ahead and that 53 contracts were exchanged on the day. The letter then states that the display kiosk was closed in the last week of November, but the plaintiff resumed selling apartments in the development in late February and had, by 30 August 2016, sold 70 apartments. The letter referred to the fact that stage 3 was about to start.
On 19 April 2016, Ms Joanne Doueihi (whose conveyancing firm, All Round Conveyancing, had been retained by the Club as conveyancer) sent a letter headed "Executive Summary" to the Club. It provided a snapshot of the development as at that date. The letter identifies The Willis Property Group as the real estate agency. It also records that, as at that date, there were achieved sales of 57 home units and the plaintiff held a total deposit revenue of $274,500. The total revenue of achieved sales was in excess of $27 million . The evidence includes numerous other exchanges between Mr Willis and All Round Conveyancing during the period May to June 2016, including spreadsheets which recorded apartment sales in the development. It is unnecessary to summarise those documents, but they provide clear evidence of the plaintiff's ongoing work as the Club's agent.
It was shortly after this time that the Second Agreement was executed.
My impression is that not all relevant documents were included in the evidence. This presumably reflects the terms of the pleadings and the fact that, only belatedly, the Club elected not to press its cross-claim, adduce no affidavit or documentary evidence or squarely raise the issue whether the First or Second Agreements were validly executed by it.
It is evident, however, that relations between the plaintiff and the Club deteriorated around 2017. By that time, it appears that Mr Wayne Ding and his company Prairiewood Development 01 Pty Ltd had become involved in the development.
By a letter dated 7 December 2017, Mr Willis wrote to both the Club and Prairiewood Development following a meeting held on that day to discuss outstanding debts owed to the plaintiff. This occurred in circumstances where there were difficulties obtaining finance for the remaining part of the development. The letter noted that the plaintiff had only received $45,000 plus GST in respect of its services and Mr Willis threatened legal action.
By an email dated 12 December 2017 from Mr Ding to Mr Willis (which was copied to Mr Leonello and Mr Giglio), Mr Ding acknowledged that the plaintiff's services had been "engaged by [the Club]" and that Mr Ding was unable to comment how those "engagements/arrangements were made before my time/involvement". Mr Ding said that Prairiewood Development was formed in or around December 2016 "as an SPV to undertake the development and any other site services required by the project". He said that he was aware of outstanding amounts being owed to the plaintiff. Mr Ding then described various difficulties with the development. He said that his company had paid the plaintiff some monies for both marketing and commissions "as a gesture of goodwill in consideration of the time you have waited on the project already" . Mr Ding then proposed a payment plan with the plaintiff, which payments he said would need to be funded by himself and his company.
The evidence is unclear how the plaintiff responded to Mr Ding's email, but it appears that the next relevant correspondence was in September 2019.
Mr Willis sent an email on 11 September 2019 to three of the Club's directors (namely Mr Leonello, Mr Occhiuto and Mr Giglio). Attached to that email was a letter dated 10 September 2019 from Mr Willis to Mr Leonello, and a copy of Invoice #11 dated 3 September 2019. Mr Willis provided a marketing and sales update regarding the development. He concluded his email by saying that "my payments have stopped again, can you please arrange to have the current balance paid this week". The attached letter dated 10 September 2019 set out a list of information which the plaintiff required to sell and market the balance of the apartments, referred to the history of payments under a payment plan to cover outstanding amounts as being "very slow and inconsistent causing unnecessary angst and has been an ongoing issue for the past two and a half years", and claimed an amount outstanding as at September 2019 of $115,000. Mr Willis finished the letter by reaffirming the plaintiff's "commitment to fulfilling our component to this projects [sic] completion and look forward to a fruitful outcome for all parties concerned". Mr Willis said that he would address any additional information required by Mr Leonello "or any of the Board Members".
On 19 September 2019, Mr Willis sent another email to the same three directors, referring to his correspondence the previous week and noting that he had received no response, nor had the plaintiff's outstanding invoice been paid.
On the same day, Mr Occhiuto emailed Mr Willis asking that he be removed from any emails Mr Willis sent to the Club's directors because Mr Occhiuto had ceased to be a director from the date of the Club's previous annual general meeting. Mr Willis promptly acknowledged Mr Occhiuto's request and asked him to send him contact details of the board so that Mr Willis could contact the right people.
On 21 September 2019, Mr Leonello sent an email in apparent response to Mr Willis' email dated 12 September 2019. Mr Leonello apologised for the delay and explained that he had been hospitalised. Mr Leonello wrote that sales and marketing arrangements, including the plaintiff's invoice, had been assigned to Mr Wayne Ding back in January 2017. Mr Leonello denied that the Club had any responsibility for any of the plaintiff's invoices because of Mr Ding's involvement. Mr Leonello expressly acknowledged, however, that he personally had "originally engaged" the plaintiff.
By letter dated 23 September 2019, Mr Willis responded to Mr Leonello's email dated 21 September 2019. Mr Willis stated that he had never assigned the exclusive agency agreement to Mr Ding or his company. He said that his exclusive agreement was with the Club only and he described the invoices which remained outstanding for payment by the Club.
Apart from subsequent tax invoices issued by the plaintiff after this period, the evidence does not include any further correspondence between the parties regarding outstanding commission. It is also notable that, in the Club's filed defence, there is no express reference to any agreement it had with Mr Ding or his company which is relevant to the plaintiff's claim against the Club for the outstanding commission fees.
Mr Willis gave evidence regarding the sums which he said were owing to the plaintiff. He said that the plaintiff issued tax invoices for unpaid commission due upon exchange of sales contracts around 28 October 2016 and 2 December 2016. Mr Willis also attached to his affidavit a tax invoice #12 dated 30 June 2020 (Invoice #12) which he said the plaintiff issued to the Club.
Mr Willis attached to his affidavit a copy of a document dated 18 July 2023, headed "Statement of Account". It recorded that the plaintiff had received commission fee payments in the amount of $490,000 and that the outstanding amount for commission as at 18 July 2023 was $1,508,481.82. In the body of his affidavit however Mr Willis explained why the amount claimed by the plaintiff is $419,137.08.

Some additional findings of fact

The evidence described above comfortably establishes that: 1. The parties were in commercial negotiations from around July 2015 with a view to finalising an exclusive agency agreement. 2. Being a licensed agent, Mr Willis was very conscious of the legal need to finalise a written agency agreement before the sales programme was launched. Mr Leonello was also aware of both this need and the fact that the sales launch, which had already been deferred several times, was scheduled to occur on Saturday 14 November 2015. 3. Both Mr Willis and Mr Leonello (representing the Club) executed an exclusive agency agreement on or around 14 November 2015. 4. The copy of the First Agreement in the exhibit to Mr Willis' affidavit attached to it a two-page document which is a duplicate of the pricing matrix which formed part of the tender documents. It specifies an advertising and marketing figure for all 3 stages of the development as $418,900 plus GST. 5. The plaintiff sold numerous apartments in respect of the development. 6. When the First Agreement expired, the Second Agreement (which is dated 1 August 2016) was executed by both Mr Willis and Mr Leonello. 7. The plaintiff continued to sell apartments in respect of the development after the First Agreement expired. 8. The plaintiff has received payments in the total amount of $490,000 in commission in respect of some of its sales. The evidence does not permit a finding as to how much of this figure was paid by the Club as opposed to Prairiewood Development 01 Pty Ltd.

Consideration and determination

Rather than add unnecessarily to the length of these reasons for judgment by summarising the parties' primary submissions, I will address them, where relevant, in resolving each of the primary issues set out at [7] above.

(a) Relevant provisions in the PSBA Act

It is desirable to set out ss 28, 36, 55, 55A and 56 of the PSBA Act as in force at the relevant times, noting for completeness that the reference to "Director-General" in ss 28(4) and 56(2) was amended to read "Secretary".
Section 28 provided: 28 Registered office and address (1) A licensee must have a registered office within New South Wales. (2) A licensee who carries on the business of an agent pursuant to a licence or other authorisation under the laws of another State at an office (the interstate office) that is within 50 kilometres of New South Wales may have the licensee's registered office at the interstate office (even though it is not in New South Wales). The powers of an authorised officer under this Act may be exercised at the interstate office. (3) The address specified in an application for a licence as the address at which the applicant proposes to carry on business (or, in the case of a licensee carrying on business at more than one place, the address specified in the application as the licensee's principal place of business) is taken to be the registered office of the licensee. (4) Notice of any change in the location of the registered office must be lodged by the licensee with the Director-General within the time prescribed by the regulations. Maximum penalty: 50 penalty units.
Section 36 relevantly provided: 36 Review of commission and fees (1) An action or other proceedings cannot be commenced by a licensee for the recovery of remuneration or any sum as reimbursement for expenses until the expiration of 28 days after a statement of claim has been served personally or by post on the person to be charged with the remuneration or expenses. (2) The statement of claim must be in writing, set out the amount claimed and contain details of the services performed by the licensee in respect of which the remuneration or expenses are claimed. … (4) A person who is served with a statement of claim under this section or is provided with an itemised account of a transaction as provided by this section may apply to the Tribunal for the determination of a consumer claim within the meaning of Part 6A of the Fair Trading Act 1987 in relation to: (a) the entitlement of the licensee to the whole or any part of the amount specified in the statement of claim or the itemised account, or (b) whether the whole or any part of the amount is reasonable, or both. ... (6) The Tribunal has jurisdiction to hear and determine any such consumer claim despite: (a) the terms or conditions of any agreement or contract entered into between the licensee and the applicant, and (b) the amount being more or less than the maximum amount (if any) of remuneration to which a licensee is entitled under this Act. ... (8) In this section: expenses means expenses or charges incurred in connection with services performed by a licensee in his or her capacity as a licensee. remuneration means remuneration by way of commission, fee, gain or reward for services performed by a licensee in his or her capacity as a licensee.
Section 55 relevantly provided: 55 No entitlement to commission or expenses without agency agreement (1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless: (a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of: (i) the person, and (ii) the licensee, and (b) the agency agreement complies with any applicable requirements of the regulations, and (c) 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. Note - Section 55A allows a court or tribunal to order that commission and expenses are recoverable in certain circumstances despite subsection (1). (2) The regulations may make provision for or with respect to regulating the form of agency agreements and the terms, conditions and other provisions that an agency agreement must or must not contain. Without limiting this subsection, the regulations may prescribe one or more standard forms of agency agreement. (3) Without limiting the means by which a copy of the agency agreement may be served on a person, it may be served by means of facsimile transmission or by such other means as the regulations may allow. …
Section 55A relevantly provided: 55A Relief from disentitlement to commission and expenses (1) A court or tribunal before which relevant proceedings are taken may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled to the commission or expenses (under section 55) because of: (a) a failure by the licensee to serve a copy of the relevant agency agreement on the person within 48 hours after it was signed by or on behalf of the person, or (b) a failure of the relevant agency agreement to comply with the requirements of the regulations. (2) A court or tribunal is not to make such an order in circumstances of a failure to serve a copy of the agency agreement within the required time unless satisfied that: (a) the failure was occasioned by inadvertence or other cause beyond the control of the licensee, and (b) the commission or expenses that will be recoverable if the order is made are in all the circumstances fair and reasonable, and (c) failure to make the order would be unjust. … (4) Proceedings are relevant proceedings if they are proceedings taken by a licensee for the recovery of commission or expenses from a person or proceedings on a consumer claim relating to commission or expenses (as referred to in section 36) in relation to which a licensee is a respondent.
Section 56 provided: 56 Approved guide to be provided before agency agreement for residential property signed (1) A real estate agent must not enter into an agency agreement with a person for the sale of residential property unless the agent has provided the person with a copy of the approved guide not more than 1 month before the agreement is signed by or on behalf of the person. Maximum penalty: 40 penalty units. (2) In this section: approved guide means a guide with respect to the sale of residential property approved by the Director-General from time to time for the purposes of this section. (3) A contravention of this section does not affect the validity of the agency agreement.

(1) Do the First and Second Agreements bind the parties?

It should be said at the outset that it was not easy to follow parts of the Club's submissions on this and some other primary issues. Much of the difficulty stems from the extent to which the case as presented by the Club departs from its defence. There was also some tension between the Club's outline of written submissions dated 4 August 2024 (which was prepared and signed by the Club's new solicitors and provided only shortly before the hearing) and the oral submissions made on behalf of the Club by Mr Angyal SC (who apparently was retained only shortly before the hearing).
The difficulty is partly illustrated by the following obtuse paragraphs in the Club's outline of written submissions concerning the First and Second Agreements: 10. The defendant takes issue with both agreements, denying that it entered into either of them. Whilst the defendant does admit that it executed a document in or about late October 2015, or early November 2015, it denies the allegation that it ever appointed the Plaintiff to have been the exclusive sales marketing agent for the sale of the 86 apartments in stage 1 of the Development, (paragraph 5 of the Defence). 11. Hence it may be taken that the Defendant denies having entered into a binding legal agreement with the Plaintiff in the form of this First Agreement, as pleaded, regardless of what is admitted as having been executed by the defendant. 12. The Defendant also denies ever having entered into the Second Agreement, at all, (paragraph 14 of the Defence) [sic].
Based on the Club's case as presented at the hearing and in its post-hearing submissions, the matters raised by its denial that neither the First nor Second Agreement is enforceable appear to be as follows. I shall also explain why I reject each of those matters.
The analysis must start with the Club's formal defence. In [5] of the statement of claim, the plaintiff claimed that it was appointed by the Club to be an exclusive sales marketing agent for the sale of 86 apartments in stage 1 of the development by an "agreement dated 1 July 2015 and styled as 'Exclusive Agency Agreement'", which was pleaded to be the First Agreement.
The Club's defence to that claim is as follows: 5 In relation to paragraph 5 of the Statement of Claim, the defendant: a. says that it executed a document entitled Exclusive Agency Agreement (the First Agreement); b. says that it executed the First Agreement in or about late October 2015 or early November 2015; c. otherwise denies the paragraph.
This pleading appears to be of the effect that the Club admitted that it executed an exclusive agency agreement with the plaintiff in late October 2015 or early November 2015, but this was not the agreement relied upon by the plaintiff. In other words, based on the pleadings, the Club's position seemed to be that while there was an executed exclusive agency agreement, the agreement described by the plaintiff as the First Agreement was not the correct agreement. This view of the pleadings was taken up by Mr Angyal SC who appeared for the Club at the hearing.
Mr Angyal SC contended that "the agreement which the parties agreed" is the document commencing at CB199. He emphasised that this earlier document had a completely different marketing attachment. He contended that the parties had agreed a marketing budget of approximately $239,000 in contrast with the much higher figure in the pricing matrix which is attached to what the plaintiff contends to be the First Agreement. Thus, the Club's position is that the plaintiff relied on the wrong agreement.
The available evidence does not support a finding that the parties executed an exclusive agency agreement prior to the document which Mr Willis describes as the First Agreement. The Club's solicitors' email dated 12 November 2015 attached what was described as "the corrected agency agreement", a copy of which was attached to the email. It is plain, however, from the terms of the email that the solicitor was not suggesting that this was the final agency agreement. Indeed, the attached agreement was not signed by either party. Rather, Mr Willis was asked to let the solicitor know if he was "happy with it", in which case he said he would write to the Club confirming that it was in order to sign it.
There is no direct evidence as to precisely when the document which the plaintiff contends is the First Agreement was executed by the parties. Mr Leonello's email dated 13 November 2015 (see at [43] above), which was sent to the Club's solicitors (a copy was also sent to Mr Willis and two other club directors), refers to Mr Willis having told Mr Leonello that the Club's solicitors would send him a copy of what was described as "the final version" of the agreement on 12 November 2015. Mr Leonello's email does not say that he had signed "the final version". Indeed, it is reasonable to infer that the request on 13 November 2015 for a copy of the final version of the agreement was for the purpose of Mr Leonello signing it. In drawing this inference, I place particular weight on the fact that Mr Leonello was aware that apartments might be sold the following morning (i.e. Saturday, 14 November 2015), and that a final agency agreement needed to be in place before then.
In all these circumstances, I accept the plaintiff's submission that the First Agreement was entered into on or around 14 November 2015 and it is in the form of the document which commences at CB226, and includes the two-page pricing matrix at CB241-242.
The Club also contended that the First Agreement is unenforceable because the Club did not intend to enter legal relations with the plaintiff. The Club urged the Court to find that the parties were in protracted negotiations which never resulted in any enforceable agreement.
I do not accept this contention. Subject to addressing the Club's claim that the First Agreement was not validly executed by it, I find that the First Agreement gave rise to a binding and enforceable legal agreement. In reaching this conclusion, I regard as particularly significant that both Mr Willis and Mr Leonello were conscious of the need to finalise a written agency agreement before the sales launch commenced (see at [29] and [43] above). Moreover, some significance should attach to the fact that, by an email dated 21 September 2019, Mr Leonello wrote to Mr Willis in the context of the dispute about outstanding commission fees and said in no uncertain terms that "I originally engaged yourself".
A finding that the First Agreement was executed around 14 November 2015 and gave rise to enforceable legal obligations is, I believe, consistent with relevant legal principles, including those relating to inferences reasonably to be drawn from the parties' relationship in a commercial context. This is an important aspect of the objective theory of contract, as is reflected in the following extract from Kirby P's judgment in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 530: The relationship between the parties is also important. The law might less readily infer assent to an arrangement to be bound to a printed contract between individuals involved in a personal association than it would in circumstances of a contract allegedly arising out of an apparently regular business or professional association. Here, the relationship between the parties was a continuing one for commercial purposes. Work was done and accepted within that relationship. Progress payments were claimed and made. The relationship between a property developer and a firm of managing architects might possibly be explained by reference to an imputed contract or one agreed to orally. But it is less likely that such parties would enter a protracted arrangement, involving a substantial building project, and large sums of money without settling in some little detail the terms of their relationship. It is in this way that the identity of the parties and the nature of their relationship may more readily give rise to the inference that they had agreed to be bound by a printed contract than would be the case, say, in dealings between private individuals having no similar commercial attributes.
(See also Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95; [2002] HCA 8).
In concluding that the First Agreement constituted a binding agreement I have also taken into account other relevant surrounding circumstances, including the fact that the Club paid the plaintiff part of $490,000 in commission fees, which (objectively assessed) strongly suggests that the Club regarded itself as legally obliged to do so. It is well settled that subsequent relevant circumstances may be taken into account in determining whether there is an intention to enter into legal relations (see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 547-548 and 550 and J D Heydon, Heydon on Contract: The General Part (2019, Lawbook Co) at [4.170]).

Were the First and Second Agreements validly executed by the Club?

The Club also contended that the document described by the plaintiff as the First Agreement is unenforceable because it was not validly executed by or on behalf of the Club. As mentioned, this contention was not explicitly raised in the Club's formal defence with respect to either the First or Second Agreements. The issue was belatedly raised by the Club in its outline of written submissions dated 4 August 2024, which were then developed at both the hearing and in the Club's post-hearing amended submissions dated 14 August 2024.
The Club's contentions on this matter (which appear to address both the First and Second Agreements) were expressed in various ways. They may be summarised as follows:

The First and Second Agreements were signed only by Mr Leonello and not by two directors as required by cl 41 of the Club's Constitution.
The First Agreement was not executed in accordance with the board's resolution dated 2 November 2015, which authorised Mr Leonello and Mr Giglio to execute the agency agreement.
Any warranty of authority conferred by cl 15.7 does not cure any defect in the actual authority of a signatory and the warranty only has practical effect if the signatory is not authorised to sign the document.
The insertion of cl 15.7 means that the parties contemplated that the agreement might be signed by a person lacking authority to do so, which negates any suggestion that a party which did not validly execute the document is estopped from denying that the signing person had authority to do so.
Even if cl 15.7 gave rise to an estoppel, the express reference in the signature blocks to s 127(1) of the Corporations Act in both the First and Second Agreements necessarily focusses attention on ss 127 to 129 of that Act. The assumption provided for in s 129(5) that a document has been duly executed by the company if the document appears to have been signed by and in accordance with s 127(1) cannot apply. This is because, from his attendance at the Club's meeting on 2 November 2015, Mr Willis had actual knowledge that more than one director was required to execute the agreements. Moreover, the Court should find that Mr Willis drafted the "purported agreements" and would have inserted the two signature blocks concerning the Club, knowing that the signature of two directors was required.
The Club added that, having regard to the terms of cl 15.7, the plaintiff should look to Mr Leonello personally for relief in respect of any breach of warranty.

I shall first explain why I accept the plaintiff's submission (which was made in both oral address and at [11] of its post-hearing submissions dated 13 August 2024) that Mr Leonello had implied actual authority to execute both agreements.

Mr Leonello's implied actual authority

Generally, where a company has more than one director, as is the case here, a single director does not have authority to bind the company: see Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 at 198 and 205; [1990] HCA 32.
It is settled law, however, that an implied grant of actual authority can result from acquiescence by persons in the conduct of another person where those persons have actual authority to delegate. Thus, as Hammerschlag J (as his Honour then was) observed in Junker v Hepburn [2010] NSWSC 88 at [43] (emphasis added): [43] An implied grant of actual authority can result from acquiescence in the course of behaviour by persons who have actual authority to delegate. For example, if directors as a board stand by whilst a single director enters into transactions outside his or her authority, the board's acquiescence in that course of dealing can constitute the grant, by implication, of actual authority to enter into those transactions.
The principles are addressed in R P Austin, H A J Ford and I M Ramsay, Company Directors: Principles of Law and Corporate Governance (2005, LexisNexis Butterworths) at [3.41] (emphasis added): An implied grant of actual authority can result from acquiescence in a course of behaviour by persons who have actual authority to delegate. For example, if directors as a board stand by while the chairperson of the board, whom the board has never appointed managing director, acts as if so appointed and enters into transactions that are outside his or her authority as chairperson but within the usual authority of a managing director, the board's acquiescence in that course of dealing can lead to a court deciding that the chairperson had the same actual authority as if appointed managing director: Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549; [1967] 2 All ER 14; [1967] 2 WLR 1312; Brick and Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279; (1990) 3 ACSR 649; 9 ACLC 324; Equiticorp Financial Services Ltd (NSW) v Equiticorp Financial Services Ltd (NZ) (1992) 29 NSWLR 260; 9 ACSR 199; 11 ACLC 84 affirmed (1993) 32 NSWLR 50; 11 ACSR 642; 11 ACLC 952 (special leave to appeal refused 118 ALR); Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143. There would have to be not only the acquiescence of the individual board members but evidence of communication by words or conduct of their respective consents to one another and to the agent: Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; [1964] 1 All ER 630; [1964] 2 WLR 618. There may be a company whose function is limited and in which there is so little business to be done that there would be no need to appoint a managing director. In that case the fact that allows one of their number to act for the company is not so readily taken to be a grant of implied actual authority appropriate to a managing director: Bank of New Zealand v Fiberi Pty Ltd (1992) 8 ACSR 790; 10 ACLC 1557 (special leave to appeal refused 12 ACLC 232).
The correctness of the additional requirement in the emphasised words above has been considered in various subsequent cases. As Payne JA noted in Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company v Cheng [2021] NSWSC 1141 at [141], there is a debate as to whether the "additional requirement" is correct. Payne JA further noted at [143] that the Full Court of the Federal Court in Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 referred to the additional requirement as "usually" applying. This suggests that it is not a universal requirement. Payne JA added at [144] that, in other cases, acquiescence alone is sufficient to found an implication of actual authority and there is no requirement of communication of consent. His Honour made express reference to the Court of Appeal's decision in Equiticorp Finance Ltd (in liq) v Bank of New Zealand (1993) 32 NSWLR 50. Payne JA noted at [145] that there was no requirement in Equiticorp of "communication by word or conduct of each individual board member's respective consent to each other and to the agent". His Honour noted that Equiticorp was binding on him. It is also binding on me.
I would add that a similar view has been taken on the correctness of the "additional requirement" by other judges sitting at first instance. For example, in Cahill v Kiversun Pty Ltd [2017] VSC 641, Kennedy J concluded that there was no such requirement. His Honour also noted at [130] that "whether authority is to be implied is to be found in a 'close analysis of the evidence', rather than the reciting of any particular formula". I respectfully agree.
To similar effect, in Chiodo Investments Pty Ltd v Rilac Pty Ltd [2023] VSC 590, Gorton J acknowledged at [10] that, even in the absence of direct evidence of actual authority, a conclusion that there was actual authority may be established by inference. His Honour added that whether such an inference should be drawn "will depend on a consideration of all the circumstances surrounding the management of the company's business".
It is appropriate to say something more about Equiticorp because it well illustrates the general principles relating to implied actual authority being derived from the acquiescence of a board of directors. The majority joint judgment by Clarke and Cripps JJA stated that the relevant question as to whether an agent had implied authority to act in a particular way must focus attention on the conduct of the parties in order to decide whether the inference of authority should be drawn. Their Honours approved Diplock LJ's statement of the relevant principles in Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 at 502 where his Lordship explained the distinction between actual and ostensible authority.
In Equiticorp at 133, the majority said: We have already indicated that actual authority may be implied. It is, however, important to emphasise that the authority impliedly granted by the principal to the agent must be such as could be validly granted by express agreement. Put another way, in the specific context of company law, it must be an authority whose existence is contemplated by the company's memorandum and articles of association.
Equiticorp was applied by the Court of Appeal in Greater Pacific Investments Pty Ltd (in liq) v Australian National Industries Ltd (1996) 39 NSWLR 143 at 148 per McLelland AJA (Priestley and Meagher JJA agreeing). After referring to Equiticorp and other related caselaw, McLelland AJA observed at 149 that, in each of those cases: …the evidence revealed a course of conduct involving the exercise by a dominant individual director having a controlling interest in a company, of the significant decision-making functions of the company without prior reference to the company's board and with the acquiescence of that board.
Those observations were not, of course, directed to a company limited by guarantee, as is the Club here. But I consider that they are apposite with particular reference to the evidence which demonstrates that, in so far as the development is concerned, Mr Leonello was the most influential and involved member of the board. He was included in most of the correspondence with Mr Willis. It is also notable that he was the person nominated in cll 18.4 of the First and Second Agreements as the person to whom notices should be served. Moreover, of the board members, it was primarily Mr Leonello to whom Mr Willis turned in seeking to resolve the disputes concerning the outstanding commission fees. It was Mr Leonello who told Mr Willis that he could increase apartment prices where appropriate. Mr Willis saw Mr Leonello as the most relevant and influential contact as far as the board was concerned. This is objectively understandable in circumstances where, as the ASIC records confirm, Mr Leonello was the longest serving member of the board having been appointed on 10 October 1999. He had also been the President for many years.
In my view, the following additional matters, viewed objectively, support the drawing of an inference that the board acquiesced in Mr Leonello's conduct in executing the First Agreement. 1. Once the Club received development approval in late September, the board was keen to finalise the agency agreement so that the sales campaign could commence and revenue obtained, but it also wanted legal advice on the terms of the agency agreement. 2. The Club's solicitors were actively involved from late September 2015 in providing advice to the Club regarding the terms of the agency agreement. 3. Five of the board's seven directors were present at the meeting on 2 November 2015 when the price list put forward by Mr Willis was approved. This approval was given in circumstances where the board plainly anticipated that an agency agreement with the plaintiff would be executed soon thereafter. A resolution was passed at that meeting which authorised Mr Leonello and Mr Giglio to sign the agreement. 4. The day before sales were launched, Mr Leonello asked the Club's solicitors to send him the "final version" of the agency agreement, presumably for the purpose of him signing it. Mr Giglio and one other director were copied into the email (as was Mr Willis). Some limited significance attaches to the fact that Mr Leonello did not ask the solicitors also to send a copy of the final version to Mr Giglio, as the other authorised co-signatory. It is possible that Mr Leonello proposed to execute the document himself, knowing that the sales process was scheduled to commence the following day and in circumstances where it had already been delayed several weeks. In any event, even if it be assumed that Mr Leonello intended to ask Mr Giglio to sign the final version, this did not in fact occur. Mr Giglio must have known that he had not signed the agreement despite the 2 November 2015 resolution. 5. There is no reason to doubt Mr Willis' evidence that all the directors of the Club were present when sales were launched on 14 November 2015 at the Warwick Farm Holiday Inn. This necessarily included Mr Leonello and Mr Giglio. The directors must have assumed that the agency agreement had been duly executed in order for the launch to proceed in their presence. This would have included Mr Giglio, who must have known that he had not signed the agency agreement yet was evidently content for sales to commence. 6. The evidence demonstrates that Mr Leonello had a key role on behalf of the Club in progressing the development. This is reflected, for example, in him holding the office of President and being frequently copied in with correspondence relating to the development. It was he who forwarded a copy of the agency agreement to the Club's solicitors. He gave approval to Mr Willis to increase sale prices where appropriate. He was one of two directors copied in with the solicitor's correspondence with Mr Willis regarding the terms and conditions of the agency agreement and it was he who urged the Club's solicitors on 13 November 2015 to send a final version of the agreement to him personally before the sales launch. 7. All these matters support the inference that, despite the 2 November 2015 resolution, the board acquiesced in, or stood by, when Mr Leonello alone executed the First Agreement on behalf of the Club on or around 14 November 2015, coinciding with the sales launch.
In so finding, I take into account that the Club raised the issue of valid execution only two days before the hearing commenced. Also, the board must have in its control and possession relevant evidence regarding these matters. The Club's failure to adduce evidence about the availability of such evidence and what it might reveal assists in drawing inferences which are adverse to it and which are favourable to the plaintiff concerning the execution of the First Agreement (see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [36]; [2001] HCA 12).
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.
It is unnecessary to determine the plaintiff's alternative contention that Mr Leonello also had ostensible authority.

Clause 41 of the Club's Constitution

The terms of cl 41 are set out at [34] above. The clause is not easily understood. On one view its provisions are facultative rather than mandatory, as is reflected in the repeated use of the term "may". The position may be different with cl 41.3, which provides that the Club may execute a document "only if authorised" to do so. It is also arguable that cl 41.5 is an overarching provision which operates so as to make clear that the balance of cl 41 does not limit how the Club can execute a document. This broad reading of cl 41.5 is consistent with cl 41.1, 41.2 and 41.4 being merely facultative.
The resolution dated 2 November 2015 cannot be based on cl 41.1 of the Constitution because that clause refers to three directors executing a document without the common seal. The relevant resolution authorised two nominated directors to sign the marketing agreement. Presumably the board relied upon cl 41.5 in passing that resolution.
I do not consider that, however construed, cl 41 of the Club's Constitution overcomes the finding above regarding Mr Leonello's implied actual authority. The evidence needs to be assessed in light of the Club's pleading in its defence. The plaintiff only learned of the Club's position on these matters approximately 48 hours before the hearing commenced. In addition, I consider that this is an appropriate case to apply the well-known observations of Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418 to decline to draw inferences favourable to the Club "where no attempt was made to prove them by direct evidence and in particular when no relevant questions were asked of [Mr Willis]". As mentioned, Mr Willis was not cross-examined.
In any event, I do not accept the Club's contention that the Court should find that Mr Willis had actual knowledge of cl 41 of the Constitution and the terms of the resolution which was passed by the board on 2 November 2015. Merely because Mr Willis attached a copy of the Club's Constitution to his affidavit does not establish that he had knowledge of the contents of the Constitution in November 2015 or August 2016.
Nor is such a finding warranted by reference to the fact that Mr Willis attended the board meeting on 2 November 2015 at which the resolution was passed. As noted above, the minutes record that Mr Willis' presentation to the board and the ensuing discussion finished at 9:17pm, at which time Mr Willis left the meeting. The minutes then record the resolution authorising the two directors to sign the marketing agreement on behalf of the board, with the meeting closing at 9:31pm. It appears that the resolution was passed after Mr Willis left the meeting.
I also reject the Club's submissions regarding inferences to be drawn from the drafting of the signature pages in both agreements. The evidence is unclear as to who drafted that material and when the two signature blocks were inserted. The Club relies upon its solicitors' letter dated 24 September 2015, in which the firm stated that it understood that Mr Willis had submitted to the Club an exclusive marketing and sales agreement. The evidence leaves unclear what the form of the draft agreement was at that time. Furthermore, subsequently on 12 November 2015, the Club's solicitors forwarded to Mr Willis a copy of what it described as "the corrected agency agreement". That revised agreement contained the two signature blocks, but it is unclear whether they were inserted by the Club's solicitors or by Mr Willis. Although it may be presumed that Mr Willis saw the two signature blocks, I see no basis for imputing to him knowledge that there was some legal requirement that documents such as this had to be signed by two of the Club's directors.
Nor do I consider that such knowledge should be imputed to Mr Willis because of the express reference to s 127(1) of the Corporations Act on the final page of the body of both the First and Second Agreements. I did not understand the plaintiff to rely upon ss 127 to 129 of the Corporations Act or the assumption specifically raised in s 129(5). Those provisions do not displace non-statutory legal principles, including those relating to implied actual authority.
In its post-hearing submissions dated 13 August 2024, the plaintiff confirmed that it did not rely on s 129(5) of the Corporations Act. It also submitted that both cl 41 of the Club's Constitution and s 127 of the Corporations Act were facultative only and did not impose limitations on the way in which the Club could execute a document. I accept those submissions having regard to what is said above regarding cl 41 and noting also the express terms of s 127(4).

Significance of the warranty in cl 15.7

The Court was assisted by the parties' post-hearing submissions on the significance of cl 15.7 (which is set out at [49] above). I accept the Club's submission that the warranty contained therein is one given not by it but rather by Mr Leonello as the person who executed both the First and Second Agreements. Having regard to the Club's post-hearing submissions, I find that cl 15.7 has no relevance in this proceeding.

Significance of documents being incomplete

The Club contended that the First Agreement was not binding because it was incomplete as there was no Appendix 1.
I do not accept this contention. It is true that there is an explicit reference in cl 33.1 of the First Agreement to "Appendix 1" in the context of what is described there as the "Advertising and Marketing programme". As already emphasised, the attachment to the First Agreement is the two-page pricing matrix. That document contains no express statement that it is "Appendix 1" (in contrast with the "Marketing and Advertising Cost Analysis Programme" which is stated to be "Appendix 1" in the earlier version of the agency agreement which is attached to the solicitor's email dated 12 November 2015). It is reasonable to infer, however, that the parties must have agreed in the period between 12 November 2015 and 14 November 2015 that the pricing matrix should replace the Marketing and Advertising Analysis Programme in the final agreement. Both parties were anxious to finalise an agreement so that the sales launch could proceed.
As to the Second Agreement, the Club denies that it entered into any such agreement at all. It also says that the document is incomplete because there is no attachment despite the reference to there being one in cl 33.
I reject both those contentions. The Second Agreement is signed by both Mr Willis and Mr Leonello. There is no need to repeat what I have said above regarding the implied authority which Mr Leonello had to execute the Second Agreement on behalf of the Club.
As to the Second Agreement being incomplete, there are several anomalies in these proceedings regarding the documentation. As mentioned, despite the reference in cl 33.1 to there being an attached marketing expenditure and timeline, no such document is attached. Curiously, however, there is a single-page document in the CB immediately after the 15-page body of the Second Agreement. That single document appears to be the first page alone of the tender proposal (see at [20] above). The anomaly is unexplained.
In any event, I do not regard the documentation to be so incomplete as to deny the existence of a legally binding agreement. Clauses 33.1 and 33.2 of the Second Agreement differ from the comparable provisions in the First Agreement because, without having to refer to any attachment, those clauses internally identify the cost of the advertising and marketing programme over the three stages of the development.

(2) Is the plaintiff entitled to any commission because it did not comply with the requirement in s 55(1)(a) of the PSBA Act?

The Club contends that the plaintiff has no cause of action to recover any commission fees because it has not demonstrated that the services it provided to the Club were performed pursuant to an agreement in writing which was signed by or on behalf of the Club and the plaintiff. The Club relies on the fact that both the First and Second Agreements were signed on behalf of the Club by only one director, namely Mr Leonello, whereas the Club's Constitution requires any such agreement to be signed by more than one director.
These contentions substantially repeat the Club's submissions regarding its claims that neither the First nor Second Agreement gave rise to binding legal obligations, including because they were signed by only one director. Those contentions have been rejected for the reasons given above. It necessarily follows that the Club's claims regarding s 55(1)(a) also fail.

(3) Is the plaintiff barred from recovering any commission because it failed to comply with s 55(1)(c) of the PSBA Act?

In brief, the Club contends that there is no evidence to find that the plaintiff complied with the requirement in s 55(1)(c) that a copy of an agency agreement must be served within 48 hours after it was signed. It described this non-compliance as a "fatal failure" because the plaintiff has no cause of action for commission fees unless there is compliance with this requirement, subject only to the ameliorating operation of s 55A of the PSBA Act.
The Club contended that its position regarding the consequences of the plaintiff's non-compliance with s 55(1)(c) is "fortified" by Windeyer J's decision in Terry Pfeiffer v Connors [2000] NSWSC 452. That was an appeal from a Magistrate's decision, in which it was held that the agent had not complied with s 42AA(1)(e) of the Property Stock and Business Agents Act 1941 (NSW) (which is the predecessor provision to s 55(1)(c) of the PSBA Act). The respondents on the appeal (who were the plaintiffs before the Magistrate) had paid the agent a commission which they had negotiated and agreed to pay and then, two years later, brought proceedings to recover the commission from the agent having apparently learned of the requirements of s 42AA.
Windeyer J said at [8] that their claim was "completely unmeritorious", but his Honour held that no appealable error had been established so as to displace the Magistrate's finding that the agency agreement had not been served. The finding of non-service was based upon Mr Connors' evidence that he never received a copy of the agreement, which evidence was preferred to that of one of the agents. She gave evidence of the agency's practice to post a copy of the agency agreement to the client but she could not say for certain that a copy of the agreement had been sent to the Connors.
Windeyer J found that the Magistrate was entitled to prefer and accept Mr Connors' evidence that there had been no service. As there was no appeal on questions of fact, that aspect of the Magistrate's decision was upheld.
In my view, Terry Pfeiffer turned very much on its own facts and is distinguishable from the circumstances here, including the awareness of both Mr Willis and Mr Leonello of the need to finalise a formal agency agreement before sales began.
More generally, s 55(1)(c) is not without some difficulty. On its face it requires the agent to serve a copy of the agency agreement within 48 hours after the agreement was signed by or on behalf of the client. In its terms, the legislation does not compel the client to sign an agency agreement before the agent. One imagines that in some cases the client will sign first and before the agent. It is likewise reasonable to infer that in some cases there may be a delay of more than 48 hours before the agent signs the agreement which the client has signed. How then can there be compliance with s 55(1)(c)? It is presumably because of such impracticalities that s 55A was inserted to have an ameliorating effect.
As will shortly be developed, if the plaintiff failed to comply with s 55(1)(c), I would apply the discretion under s 55A and provide relief from any disentitlement to recover outstanding commission fees.
It may be noted that s 55 addresses the issue of service (see at [82] above). As authorised by s 55(3), reg 8(4) of the Regulation prescribes various means by which an agency agreement may be served on a person, including (in the case of a body corporate) delivering it personally to any person concerned in the management of the body corporate (reg 8(4)(b)(i)). It is reasonable to infer that, having signed the First and Second Agreements, Mr Leonello had possession of a copy of both those documents.
Another reason which provides some limited support for the drawing of that inference is that, under cl 17 of Sch 1 to the Regulation, it is 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.

(4) If there is non-compliance with any requirement imposed by s 55, does s 55A of the PSBA Act apply so as to ameliorate the non-compliance?

The Club's principal contention on this issue is that s 55A has no application in circumstances where there is an agreement, but it has not been served at all (and not merely served outside the 48-hour prescribed period). Mr Angyal SC described this as a "formal submission" only because he acknowledged (correctly) that it is inconsistent with the Court of Appeal's decision in Al Maha Pty Ltd v Liu [2020] NSWCA 108.
I am bound by Al Maha so nothing more needs to be said about that.
Apart from that formal submission, the Club also contended in its written submissions that s 55A has no application because:

Neither the First nor Second Agreement is duly signed by the Club and the Club completely denies the providence of the Second Agreement.
The First Agreement differs from the document circulated by the Club's solicitors on 12 November 2015, which the plaintiff says the Club agreed to be bound by.
The plaintiff has failed to proffer any explanation for not having served the agreements and there is no basis for concluding that this was due to circumstances beyond its control.
There is also no evidence that it would be unjust to deny the plaintiff the benefit of s 55A, because a "very high level of commission" was charged at the rate of 3.5% plus GST.
The plaintiff has failed to submit the original copies of the First or Second Agreements, and to submit them for handwriting analysis.
Although Mr Leonello initialled each page of the First Agreement, this did not occur in respect of the Second Agreement.
The plaintiff's failure to serve either the First or Second Agreement where neither appears to be "regularly signed by the plaintiff [sic]" is repeated conduct, for which the sanction provided for in the statute ought apply.

I do not accept that s 55A has no application because of any of the matters described immediately above. Taking each of them in turn, I will explain why this is so.
First, for the reasons explained above, I have found that the First and Second Agreements were validly signed by Mr Leonello and gave rise to enforceable legal obligations.
As to the second matter, I have explained why I accept the plaintiff's submission that the First Agreement is that for which it contends, as opposed to the earlier version attached to the Club's solicitors' email sent on 12 November 2015.
As to the third matter relating to non-service of the agreements, I repeat and adopt what I have said below on that subject. On the balance of probabilities, I find that the Club had in its possession copies of both the First and Second Agreement on or around the time that they were respectively executed.
The fourth matter claims that the percentage commission rate of 3.5% plus GST is very high, but the Club has provided no evidence to support that claim and it is rejected.
Fifthly, I see no reason why the plaintiff was required to submit original copies of the First or Second Agreements or submit them for handwriting analysis.
Sixthly, I do not consider that any particular forensic significance attaches to the fact that Mr Leonello initialled each page of the body of the First Agreement, but not the Second Agreement. It is noted that his signature appears on the execution page of the Second Agreement.
Finally, assuming that the last matter raised by the Club relates to the issue of the sufficiency of Mr Leonello alone signing the First and Second Agreements, I have explained why I consider he had implied authority to do so.
In my view, this is a clear case for a favourable exercise of the discretion under s 55A. Assuming, contrary to the above, that the plaintiff failed to serve a copy of either the First or Second Agreements within 48 hours after it was signed by the Club I find that any such omission was occasioned by inadvertence. I draw this inference having regard to Mr Willis' vast experience in the industry and his concern to ensure that a formal agency agreement was in place prior to any sales. I also am satisfied that the commission fees sought to be recovered by the plaintiff are in all the circumstances fair and reasonable. I also consider that a failure to grant ameliorating relief would be unjust, not the least because the Club has paid part of the $490,000 to the plaintiff for its services for sales as documented in Annexure B to the statement of claim.

(5) Did the plaintiff comply with s 36 of the PSBA Act?

The Club contends that there was no evidence that the plaintiff complied with s 36(1), which provided that no action or other proceeding can be commenced by a licensee to recover commission until the expiration of 28 days after a statement of claim has been served personally or by post on, in this case, the Club. The Club also pointed to s 36(2), which provided that the statement of claim must be in writing, set out the amount claimed and contain details of the services provided by the licensee in respect of which the commission is claimed. It claims that these requirements were not met.
The short answer to this complaint is that it was not adequately pleaded in the Club's defence. It is notable that the Club, at [57] of its written outline of submissions, candidly acknowledged that it did not specifically plead s 36(2). I reject its related contention that its general denial in the defence was sufficient to support it raising the s 36(2) complaint. It is one thing for the Club not to put on any evidence and to put the plaintiff to proof, but it is quite another to adopt that approach when the relevant issue has not adequately been pleaded.
Although that is a complete answer in my view to this aspect of the Club's case, for completeness I will explain why I also reject the substance of the complaint.
In its outline of written submissions at [63], the Club seemed to accept that Invoice #12 may amount to a statement of claim for the purposes of s 36, but emphasised that there was no evidence that the invoice had ever been served personally or by post on the Club.
In my view, the point is put beyond doubt in the plaintiff's favour by a letter dated 14 August 2020, which was sent by the plaintiff's then solicitors to the Club. This letter was admitted as Exhibit 2. The letter is addressed to the Club using the same postal address for service on the Club as stated in cl 18.4 of both the First and Second Agreements. The letter annexed a copy of Invoice #12, including a copy of the schedule thereto. Although the letter also contains an email address, it is reasonable to infer that it was sent by both post and email.
With particular reference to Invoice #12, the Club also claimed that this was not a valid statement of claim because:

The invoice does not refer to the schedule as being part of it;
Neither the schedule nor the invoice sets out the vendor and the purchaser of the individual strata units;
The invoice itself does not set out each of the strata units that were sold, nor does it set out the sale prices;
The statement of account does not identify each of the strata units that were sold, nor provide a calculation as to how the amount claimed as the commission is quantified;
Other invoices do not contain the schedule which the plaintiff claims accompanied tax Invoice #12.

I reject the Club's contention that Invoice #12 does not amount to a valid statement of claim for the purposes of s 36. In particular, and taking each of the criticisms in turn: 1. Mr Willis' affidavit refers at [126] to the plaintiff having issued to the Club the document which he identifies at pages 613-617 of the CB (pages 531 to 535 of his affidavit). Those documents comprise the two-page tax invoice and statement #12 together with a three-page schedule which particularises the date of sale, apartment number, car park numbers, storage capacity, purchase price and the commission payable at the rate of 3.5%. I see no reason why the schedule should not be accepted as part of the tax invoice, consistently with Mr Willis' unchallenged evidence. It is significant in this regard that the Club's allegation of non-compliance with s 36 arose only shortly before the hearing and was not squarely raised in its defence. 2. It is true that neither the invoice nor the schedule identifies the vendor and purchaser of the individual units, but I do not see that information to be essential in this case. The schedule identifies all the apartments the subject of the plaintiff's claim and the date of sale. In determining what is required for the purposes of s 36 it is important to have regard to all relevant circumstances, including the Club's conduct in only belatedly raising the s 36 objection and in having paid some part of almost half a million dollars in commission in respect of earlier invoices. 3. The Club's complaint that the invoice itself did not identify the particular strata units that had been sold, nor the prices obtained, falls away once it is accepted that the schedule is properly regarded as part of the Invoice. 4. The statement of account (which is dated 18 July 2023) does not identify each of the units that have been sold, nor does it contain information as to how the commission is able to be quantified, but the statement expressly refers to Invoice #12, as well as to other invoices in evidence. 5. As to the other invoices referred to by Mr Willis and the Club's complaint that they do not contain the schedule which accompanied Invoice #12. That may be so, but the objection should not be accepted in circumstances where the other evidence in the CB leaves no room to doubt that the Club was well aware of sufficient details of the apartments the subject of the plaintiff's claim for outstanding commission fees.
I see no reason why the plaintiff cannot rely on all the tax invoices in evidence which support its claim for outstanding commission fees.
In support of its position concerning non-compliance with s 36, the Club cited Ball J's judgment in Coolangatta Property Pty Ltd t/as LJ Hooker Murwillumbuh v Emily Dyason [2011] NSWSC 884 and, in particular, at [7] thereof. There Ball J approved and applied what Owen J said in the Full Court's decision in Oades v Ewart (1960) 61 SR (NSW) 89 at 91-92; [1961] NSWR 45 at [47]: In a case such as the present, I am of opinion that a statement of claim sufficiently details the services performed in respect of which an estate agent claims commission if it identifies the property sold, the vendor and purchaser of the property, the price, and shows how the amount which he claims as commission is made up, namely, by stating the percentage which he charged on the amount of the sale price. He is not required to render something in the nature of a bill of costs setting out his attendances on buyers, his telephone calls, letters and the like because, his right to commission depends upon the fact that he has effected the sale. That is the service which he performs and for which he is entitled to be paid.

(6) Did the plaintiff comply with s 28(1) of the PSBA Act?

The Club pointed to the fact that the documents obtained from the Australian Securities and Investment Commission (ASIC) relating to the plaintiff recorded its registered office as being in Victoria, not New South Wales. It submitted that this amounted to non-compliance with s 28(1) of the PSBA Act.
The plaintiff did not dispute the ASIC records. However, that is not the end of the matter. As noted at [80] above, s 28(3) is a deeming provision, which provides that an address specified in a licence application as the address where the applicant proposes to carry on business is taken to be the registered office of the licensee.
A copy of a licence concerning both the plaintiff and Mr Willis personally is in evidence. It gives an address in Mosman, NSW. The licence also states that it applied inter alia from 6 June 2014 through to 13 May 2022, when it expired.
It may reasonably be inferred that the relevant details recorded on the licence, including the address where the plaintiff's business is conducted, reflect information that was provided in the relevant licence applications. Accordingly, I consider that s 28(3) applies and no breach of s 28 is evident.

(7) Did the plaintiff comply with s 56 of the PSBA Act?

In brief, the Club contended that the plaintiff had not complied with the requirement in s 56(1) that it only enter into an agency agreement if it had provided the other party with a copy of the approved guide within one month prior to the agreement being signed by or on behalf of the principal.
Mr Angyal SC properly acknowledged that this complaint had no substance if the plaintiff was correct in its contention that s 56 did not apply because the multi-strata development was not "the sale of residential property" to which s 56 applied.
For the following reasons, s 56 has no application here. This is because the development the subject of both the First and Second Agreements does not involve the sale of "residential property". This conclusion is inevitable when the definition of "residential property" is traced through s 3 of the PSBA Act, which adopts the same meaning as in Pt 4, Div 8 of the Conveyancing Act 1919 (NSW). Section 66Q(1)(a) therein defines "residential property" as being "land on which are located (or in the course of construction) not more than two places of residence and no other improvements". Plainly that is not the case with the development here.
For completeness, I should also indicate that the development does not comprise "residential property" because of s 66Q(1)(c), which, at the relevant time, addressed strata lots under the Strata Schemes (Freehold Development) Act 1973 (NSW) or the Strata Schemes (Leasehold Development) Act 1986 (NSW) "comprising not more than one place of residence alone…". I do not consider this section is enlivened in circumstances where Mr Willis was engaged under the First and Second Agreements to sell 86 units in the development.

Conclusion

For all these reasons, the plaintiff should have judgment in the amount $419,137.08, together with interest. Costs should follow the event.
As noted above, Mr Willis gave evidence in support of the plaintiff's claim for an amount of $419,137.08, plus interest (which takes into account $490,000 which the plaintiff has received, as well as the plaintiff's agreement not to press a claim for $26,757.50 included in Invoice #12). These figures were not challenged by the Club by way of cross-examination, competing evidence or submissions. I accept these figures.
The parties should, within 7 days hereof, seek to agree the amount of interest to which the plaintiff is entitled. If agreement cannot be reached, each should within that time file and serve written submissions of no more than 3 pages in support of their respective positions on those matters. The issue of interest will then be finalised on the papers and without a further hearing.
The formal orders will be that: 1. The plaintiff have judgment in the amount of $419,137.08, plus interest. 2. The parties should, within 7 days hereof, seek to agree the amount of interest to which the plaintiff is entitled. If agreement cannot be reached, each should within that time file and serve written submissions of no more than 3 pages in support of their respective positions on that matter. The amount of interest will then be finalised on the papers and without a further hearing. 3. The defendant pay the plaintiff's costs.

Amendments 23 August 2024 - Amend typographical error: "Mr R Angyal SC" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2024

Property Stock and Business Agents Act 1941(NSW)

Property, Stock and Business Agents Act 2002(NSW)

Property, Stock and Business Agents Regulation 2014(NSW)

Property and Stock Agents Regulation 2014(NSW)

Strata Schemes (Freehold Development) Act 1973(NSW)

Strata Schemes (Leasehold Development) Act 1986(NSW)

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