One of the requirements of cl 3.1(c) was that the purchaser had to be a person who had been introduced to Mr Mitchell or the property by CPC during the period of the agency agreement, or another person introduced to Mr Mitchell of the property by such a person. One of the bases on which counsel for Mr Mitchell disputed that LGF answered that description focused on the date of introduction. Counsel submitted that the relevant introduction in fact occurred before the beginning of the agency period, which was specified in Part 2 section A as 1 June. Counsel for CPC characterised LGF as a party introduced by the Mirs. Counsel did not contend that LGF was itself introduced to Mr Mitchell or the property by CPC. Rather, counsel contended that LGF was introduced to the transaction by Mir Group, but that Mir Group was introduced to the property during the period of the sole agency.
Counsel for CPC acknowledged that in fact Mr Mitchell first met Mr Mir and began negotiations with him on 23 May. This was, on any view, before the beginning of the agency period. Counsel submitted that this was not fatal to the claim. The argument was that all CPC needed to do was to bring Mr Mir into contact with Mr Mitchell during the period of the agreement. This was done on 6 June and the fact that it had earlier been done on 23 May did not make what happened on 6 June any less "an introduction".
In my view, this submission pays insufficient attention to the way in which the contract was structured. The contract might have specified that in order for CPC to obtain its commission, all that was necessary was that the purchaser was introduced at some stage. But it did not. It specifically added the additional requirement of introduction during the agency period. In this context, I think that the natural implication of the word "introduced" is that it can only happen once. If it were otherwise, it would tend to make the exclusion of commission in a case where the purchaser was introduced before the beginning of the agency period meaningless.
I think this is especially clear on the facts of the present case. The practical reality was that Mr Mitchell and Mr Mir were in negotiations with each other, via Mr Dodd, throughout the period from 23 May to 6 June, and beyond. There might be cases in which the original introduction had been so long before, or in such different circumstances, that it would not count, but on the facts, this was not one of them.
This conclusion is a harsh one for CPC because both Mr Dodd and Mr Mitchell clearly intended, when the agreement was signed, that it would apply if the Mirs subsequently bought the contract on the terms Mr Mitchell was seeking. But there was no case of rectification or estoppel put forward by CPC. The agreement was a standard form used by CPC with which Mr Dodd was presumably familiar. Its effect could have been avoided had Mr Dodd been careful to sign Mr Mitchell up before bringing him together with Mr Mir. In these circumstances, CPC cannot complain about the outcome.
[2]
Implied condition and frustration
Counsel for Mr Mitchell contended that the Agency Contract was subject to an implied condition that AGL released its option and the purchase then proceeded with Mr Mitchell. Alternatively, counsel contended that the contract was frustrated because the purchase did not proceed in that way. It is convenient to deal with these contentions together.
Clearly Mr Dodd was aware, at all relevant times prior to entering into the agency contract, that the property was subject to an option in favour of AGL. This was made clear to him orally by Mr Mitchell, and Mr Dodd also had a copy of AGL's letter of 27 May. That letter contemplated the release of AGL's option as part of any sale. Mr Dodd was also aware that Mr Mitchell was not interested in the Mirs taking over the option, but only in a fresh contract.
As already stated, I am inclined to think the Agency Contract was entered into on 1 June rather than on 6 June as Mr Mitchell claimed. The draft sale contract, with its special condition providing for release of the option, was not provided to Mr Dodd until 6 June. But that makes no difference. The draft contract and special condition only reflected the common understanding of Mr Mitchell and Mr Dodd as to how the transaction was to take effect.
In Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337; [1982] HCA 24, Mason J expressed the modern doctrine of frustration in terms of the proposition that (at 357):
… a contract will be frustrated when the parties enter into it on the common assumption that some particular thing or state of affairs essential to its performance will continue to exist or be available, neither party undertaking responsibility in that regard, and that common assumption proves to be mistaken.
Aickin J quoted from the earlier decision of Lord Radcliffe in Davis Contractors Limited v Fareham Urban District Council [1956] AC 696 as expressing the doctrine (at 377-380). Lord Radcliffe relevantly said (at 728-729):
Frustration occurs whenever the law recognises that without default of either party contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract. Non haec in foedera veni. It was not this that I promised to do.
…
It is not hardship or inconvenience or material loss itself which calls the principle of frustration into play. There must be as well such a change in the significance of the obligations that the thing undertaking would, if performed, be a different thing from that contracted for.
Both Stephen J and Wilson J agreed with the judgments of Mason J and Aickin J on this part of the case.
The clearest cases of frustration, and those where it was first recognised, are cases where the "subject matter" of the contract ceases to exist: see Taylor v Caldwell (1863) 3 BNS 826; 122 ER 309 and Nickoll & Knight v Ashton, Edridge & Co [1901] 2 KB 126. Taylor v Caldwell concerned the destruction by accidental fire of a music hall which had been let for concerts to take place in the music hall after the contract. Nickoll & Knight was a shipping case where the contract provided for shipping by the SS Orlando. That ship became stranded before the date of the contract. It was held that the ship no longer existed as a cargo carrying ship, and the contract was accordingly at an end.
The doctrine was further extended in Krell v Henry [1903] 2 KB 740 where rooms on Pall Mall were rented for the purpose of viewing the coronation of King Edward VII. Because of the King's illness the parade was cancelled and it was held that the hirer could not withdraw from the contract. In that case there was nothing in the terms of the contract itself to identify the purpose of the hire, but evidence that this was the parties' intention was admitted as part of what would now be called the matrix of fact. Mason J referred in Codelfa to the decision so as to rebut the suggestion that the common assumption to which his Honour referred had to be found in the contract itself. He said (at 357-358):
The answer to this objection is that, granted the assumption needs to be contractual, in the case of frustration, as with the implication of a term, it is legitimate to look to extrinsic evidence in the form of relevant surrounding circumstances to assist us in the interpretation of the contract, unless its language is so plain that recourse to surrounding circumstances would amount to no more than an attempt to contradict or vary the terms of the contract.
In the present case there was a similar common assumption which, although not expressed in the terms of the Agency Contract itself, can be discerned from the relevant surrounding circumstances. In my view there is a close analogy with the cases to which I have referred. One might almost say that the subject matter of the contract was a sale of the property free of the AGL option. It cannot have been intended that, had AGL changed its mind and decided to proceed with the power station after all, CPC would recover any remuneration.
In Scanlan's New Neon Limited v Tooheys Limited (1943) 67 CLR 169; [1943] HCA 43, Williams J said (at 223):
It is the performance of a common object which has to be frustrated, and not merely the individual advantage which one party or the other might have gained from the contract. In Krell v Henry the contract vanished on the King's illness, because in the words of Vaughan Williams LJ, the coronation procession and the relative position of the rooms was "the basis of the contract as much as for the lessor as for the hirer" so that after that date neither party was able to perform a common purchase which went to the root of the contract; that is to say, the plaintiff was unable to hire to the defendant and the defendant was unable to obtain from the plaintiff the use of rooms from which the coronation could be viewed. (footnotes omitted)
So it is in the present case. Obviously Mr Mitchell would not be able to achieve the sale that he was looking for unless the option was released. But the contract also provided for CPC to have authority to sell the property. Clearly CPC could not do that either unless the option were released.
For these reasons, I conclude that the contract by AGL's decision not to release the options and instead to authorise LGF to exercise the option as its nominee deprived the Agency Contract of any continuing legal effect. It is unnecessary to consider whether the frustration operated by means of an implied condition or a supervening termination.
This conclusion makes it unnecessary to consider whether the Agency Contract should be rectified to provide expressly that CPC was not entitled to commission unless AGL released its option.
[3]
Was the purchase by LGF a purchase within the meaning of the agency contract
As I understood it, there remained an issue, even if clause 3.1 was part of the Agency Agreement about whether LGF, in purchasing the property as nominee for AGL under the option, met the description of a person who "enters into a contract (which includes by way of exercise of an option) to purchase …. the Property" within the meaning of cl 3.1(c). But in view of my other conclusions I do not think it necessary to consider this question.
[4]
Unconscionable conduct
Unconscionable conduct in connection with a contract may be of various types: unconscionability in the formation of the contract; unconscionability in its terms; and unconscionability in pursuing rights under it: see Australian Consumer Law, s 21(4).
In the present case I am unable to see any unfairness in the way in which the contract was formed. Mr Mitchell was an experienced business person. The contract provided for a cooling off period. Mr Mitchell had his own solicitor acting on the transaction. He could easily have sought advice on the terms of the agency agreement from his solicitor before entering into the agreement, or during the cooling off period. In my opinion, Mr Dodd did not impose on him in any way at all.
In the light of my conclusions on the construction and application of the Agency Contract, it is unnecessary to consider other forms of unconscionability.
[5]
Conclusion and orders
I have concluded that CPC has no contractual entitlement to the $200,000 commission which it claims. CPC's claim fails. Mr Mitchell's cross-claim falls away.
I see no reason why the costs of the proceedings should not follow the event. In this regard I see the cross-claim as responsive to CPC's claim. The costs order in favour of Mr Mitchell will include the costs of the cross-claim. Any application for any different order can be made in accordance with the Rules.
The orders of the Court are:
Order that the plaintiff's claim be dismissed.
Order that the cross-claim be dismissed.
Order that the plaintiff pay the defendant's costs of the proceedings.
[6]
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: 06 June 2019
Davis Contractors Limited v Fareham Urban District Council [1956] AC 696; [1956] 2 All ER 145
Fitzgerald v Masters (1956) 95 CLR 420; (1956) 30 ALJR 412
Krell v Henry [1903] 2 KB 740
Leafs Gully Farm Pty Ltd v Mitchell (2015) 18 BPR 35,607; [2015] NSWSC 1460
Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92
Nickoll & Knight v Ashton, Edridge & Co [1901] 2 KB 126
Parker v South Eastern Railway Company (1877) 2 CPD 416
Scanlan's New Neon Limited v Tooheys Limited (1943) 66 CLR 169; [1943] HCA 43
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 133 ACSR 139; [2019] NSWCA 11
Taylor v Caldwell (1863) 3 BNS 826; [1863] 122 ER 309
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52.
Texts Cited: None.
Category: Principal judgment
Parties: Combined Property Consultants Pty Ltd t/as Combined Real Estate Campbelltown (Plaintiff)
Richard Gordon Mitchell (Defendant)
Representation: Counsel:
A Power (Plaintiff)
PT Russell (Defendant)
Chronology of key events
Mr Mitchell purchased the property in about 1980. At that stage it consisted of five lots (Lots 101 to 105) in a deposited plan of subdivision. Mr Mitchell has two daughters. He later transferred Lots 104 and 105 to his daughters and their husbands. He retained Lots 101, 102 and 103 in his ownership.
Mr Dodd and Mr Mitchell first met in 2002 when Mr Dodd (then working for another real estate agency firm) acted as agent for the sale of an adjoining piece of rural land which was co-owned by Mr Mitchell and another person. According to Mr Dodd, Mr Mitchell placed the property itself on the market, with him as the agent, in 2002. Mr Mitchell denied this in his affidavit but records from the agency business produced at the trial show that the property was indeed listed by Mr Mitchell with Mr Dodd in October 2002. The property did not sell and Mr Mitchell took it off the market in 2003.
The AGL option arrangements date back to 2005. There were a number of subsequent deeds of novation and variation which resulted in the benefit of the option being transferred between various AGL companies, and also provided for the option period to be extended. The detail of these extensions and variations do not matter for the purpose of these proceedings. Nor is it necessary to distinguish between the various AGL companies involved. I will refer to those companies collectively as "AGL".
The 2005 option arrangements gave AGL an option not only over Lots 101, 102 and 103, which had been retained by Mr Mitchell, but also over Lots 104 and 105. Subsequently AGL exercised the options over those Lots, leaving Lots 101, 102 and 103 still subject to the option. In consideration of the grant, and then the extension and variation of the options, AGL paid a total of $3.15 million to Mr Mitchell. The option arrangements provided that for a purchase price for Lots 101, 102 and 103 of $15 million, but the option fees paid by AGL were to be credited in the event that AGL exercised the option.
According to Mr Dodd, he saw Mr Mitchell from time to time and enquired after the property, making it clear that if it were to come back onto the market he might be able to assist with finding a buyer. Mr Dodd gave evidence that he had shown Lot 4 to Mr Mir during the 2002 sales campaign, and that he had had dealings with Mr Mir prior to 2002 in connection with the sale of a further property.
AGL had originally acquired the option over Lots 101 to 105 because it planned to build a gas fired power station on the property. By May 2013, AGL's plans had changed and it no longer wished to proceed with the power station project. Discussions took place between Mr Mitchell and the AGL executive responsible for the project in which Mr Mitchell canvassed AGL surrendering its option over Lots 101, 102 and 103 and transferring Lots 104 and 105 back. This would have enabled Mr Mitchell to sell the whole property for redevelopment.
Terms of Agency Contract
CPC's claim for commission was based (at least primarily) on cl 3.1 in the Terms and Conditions. The claim gave rise to various areas of debate concerning the construction and application of that clause in the circumstances of this case.
Counsel for Mr Mitchell contended that, having regard to the circumstances in which the agency agreement was signed, cl 3.1 of the Terms and Conditions did not form part of the contract between the parties. If this is correct, the construction and application issues have to be determined in a quite different context. It is convenient to deal with this issue at the outset.
Three things are clear on the evidence. The first is that the parties agreed, orally, that CPC would act as Mr Mitchell's sole, rather than exclusive, agent. In making this agreement, the parties were applying the distinction drawn in the fact sheet, which can thus be referred to as part of the matrix of fact, or perhaps that as incorporated in the contract itself.
The second matter is that the parties nevertheless completed and signed the agreement. They went to the trouble of signing and initialling the substitution of the word "sole" for the word "exclusive" in the title. This shows that objectively, they intended at least part of the document to serve as a record of their contract.
The third point is, though, that the parties did not go through the terms of the agreement, and in particular Part 3 containing the Terms and Conditions, to check that those written terms accorded with the sole agency agreement which they intended. On the evidence, I think it is clear that they did not even advert to that possibility.
Mr Mitchell's evidence that he did not read the Terms and Conditions was not challenged. It was not suggested that Mr Dodd actually read out or referred to the text of cl 3.1. On his evidence, his usual practice was only to refer to the title. I am not satisfied he even did this. If he had adverted to the fact that the clause contained provisions which defined the circumstances in which the right to CPC would be entitled to commission, then both parties would presumably have looked at cl 3.1 to see what those terms were. I think it more likely that Mr Dodd did not turn his mind to the existence of such provisions in the Terms and Conditions.
Ordinarily, where one party presents a printed set of terms and conditions to the other party, the objective intention is that the parties are contracting on those terms and the fact that the other party does not read them does not make them any less binding: Parker v South Eastern Railway Company (1877) 2 CPD 416 at 421; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [47]; [57]. But this is an unusual case. Neither party adverted to printed clause 3.1 and neither party was really propounding it. In this regard, I think it is significant that clause 3.1 appeared on the fourth page of the agreement after the third page which was the signature page. In the circumstances the objective intention to incorporate the terms into the agreement is lacking.
Construction and application of Agency Contract with Terms and Conditions included
In case I am wrong in my conclusion, I will now consider what the position would be if clause 3.1 were part of the Agency Contract. In that event it becomes necessary to deal with the problem created by references in the Contract to exclusive agency, when the parties did not intend to create such an agency.
There was no application by CPC to have the terms of the Contract rectified. But that is not the only way in which a problem of this sort is addressed by the law. The court may deal with such a problem as a matter of construction, by reading obvious errors in the sense in which they must have been intended: Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In Liq) (2019) 133 ACSR 139; [2019] NSWCA 11 at 141-142 [6]-[10]; Fitzgerald v Masters (1956) 95 CLR 420; (1956) 30 ALJR 412.
I think that this is the approach I must take in the present case. Under Section A (Agency Appointments), Mr Mitchell appointed CPC as "exclusive selling agent" for the period commencing on 1 June 2013 and ending at midnight on 1 September 2013 and as non-exclusive agent thereafter. Clearly the reference to "exclusive selling agent" must, given the change to the first page of the contract, be read as "sole selling agent". The definition of "exclusive agency period" as the period from 1 June 2013 to 1 September 2013 is a misnomer. While the label can remain, the rest of the agreement must be interpreted on the basis that the agency during this period was a sole one.
This approach runs into difficulty with cl 3.1(a) and (c) which are drafted on the basis of a period of exclusive agency (cl 3.1(a)) followed by a period of non-exclusive agency (cl 3.1(c)). The wording of cl 3.1(a) is quite inapposite to a sole agency. But in my view the problem can be solved by ignoring cl 3.1(a) and reading "non-exclusive agency period" in 3.1(c) as "exclusive agency period". This has the effect that cl 3.1(c) applied both during the sole agency period and the non-exclusive agency period which followed.
So read, this would be consistent with the parties' intentions. CPC was to have the benefit of its fee if it introduced the buyer, but not if Mr Mitchell found his own buyer.
Mr Mitchell told Mr Dodd about this possibility on about 11 May and asked whether the Mir Group might buy the property. Mr Dodd's contact at the Mir Group was Samuel Mir who was apparently a director. Mr Dodd contacted Mr Mir and ascertained that the Mir Group was still interested. A meeting, arranged by Mr Dodd, then took place between Mr Mitchell, Mr Mir and Mr Dodd on about 23 May.
Mr Dodd was not the only person through whom Mr Mitchell was looking for buyers for the property. He was also dealing with David Sweeney. It is not clear from the evidence whether Mr Sweeney was also a licensed real estate agent, but whether he was or not he apparently had contacts with prospective purchasers. In mid-May Mr Sweeney introduced Mr Mitchell to John Hanna, who was interested in buying the land.
On 30 May Mr Mitchell advised Mr Dodd that Mr Sweeney had brought Mr Hanna to the property on a few occasions and that Mr Hanna was offering more money. Mr Dodd responded that he would inform Mr Mir and arrange a meeting between Mr Mitchell and Mr Mir. The meeting was later arranged for the afternoon of 6 June.
Mr Dodd then took steps to have Mr Mitchell sign an agency agreement. As already noted, there is a disagreement between the parties about which documents were included in the Agency Contract as ultimately signed. There is also a dispute about when the Contract was signed. According to Mr Dodd, it was signed on 1 June. Mr Mitchell said he signed it on 6 June, shortly before the meeting with Mr Mir.
At around the same time, Mr Jones was also asked to prepare the contract for the sale. Mr Jones provided a draft contract to Mr Dodd shortly before 1.00 pm on 6 June. The draft contract contained a special condition which made the contract subject to, and dependent upon, two other transactions. The first was the purchaser simultaneously purchasing Lots 104 and 105 from AGL. The second was the release by AGL "or the relevant party which holds a current option from the vendor" of the option over Lots 101, 102 and 103.
Mr Mitchell's evidence was that in the days leading up to the meeting on 6 June, he began to be concerned about the tax consequences of the proposed sale. He had not paid tax on the option fees paid by AGL and was worried that if the option was cancelled, the option fees might be taxable.
The meeting took place on the evening of 6 June. At that meeting, Mr Mir and Mr Mitchell agreed on a sale of the property for $15 million with a ten per cent deposit, with Mir Group to purchase lots 104 and 105 from AGL for $1.8 million. Mr Mir said that this was subject to approval at a board meeting to be held on the next day but that this was unlikely to be an issue. Mr Mitchell raised the question of the tax treatment of option fees which he had received from AGL. Mr Mir said that the Mir Group would be prepared to assist (presumably by way of structuring the agreement) in any way which was lawful and that this should be negotiated between the solicitors for the parties.
On the following day, Mr Dodd issued a sales advice notice. It identified the purchaser as "Mir Group of companies or nominee". The property was identified by its street address.
The contract price was identified as $15 million; the deposit payable on exchange was left blank. Under special conditions the following appeared:
As per contract/Dick Mitchell to stay/lease property for Peppercorn rent/10% deposit released on exchange
No contract date or cooling off period was specified. CPC's commission was stated as $200,000.
Following the issue of the sales advice notice, discussions took place between Mr Mitchell and Mr Mir, and between their solicitors. In the course of those discussions Mr Mitchell provided a copy of the option deed to Mr Mir. Negotiations then took place directly between the Mir Group and AGL.
The negotiations between the parties proved to be more protracted than expected. Mr Mitchell acknowledged there was some delay (which he blamed on his solicitor and accountant) in obtaining advice on the tax question. He said that eventually he satisfied himself that the option fees would not be taxable and instructed Mr Jones to proceed on this basis. He acknowledged that he received some further approaches (both directly and through Mr Sweeney) from Mr Hanna, who was prepared to increase his price. Mr Mitchell said that he told Mr Hanna he was committed to the Mir Group. For his part, Mr Dodd said that he was being continually pressed by Mr Mir and tried to contact Mr Mitchell but Mr Mitchell seemed to be avoiding him.
Eventually, on 28 June, Mr Mitchell spoke to Mr Mir. He was told that the Mir Group had exchanged contracts with AGL and that Mr Mitchell would not be getting $15 million for his property. Mr Mitchell asked why not and Mr Mir told him to speak to the Mir Group's lawyers.
It is now apparent that the Mir Group had decided that, rather than purchase from Mr Mitchell in accordance with the draft contract, the Mir Group would arrange with AGL to take over the option. No doubt the idea was to get the benefit of the option fees paid by AGL, and thus be able to buy at a lower price.
Meanwhile, LGF had been incorporated on 21 June. The company search shows that its shareholders were individual members of the Mir family, but for the purposes of the proceedings it was treated as a member of the Mir Group.
On 2 July, AGL's solicitors wrote to Mr Jones advising that AGL had exchanged contracts for the sale of Lots 104 and 105 to LGF and notifying its intention to make LGF AGL's nominee as purchaser of Lots 101, 102 and 103 under the option deed. The letter identified two other alternatives which were apparently open. These were for AGL to novate the option deed to LGF, or for AGL to release its rights under the option deed to allow LGF and Mr Mitchell to come to a separate agreement in relation to Lots 101, 102 and 103. But it is clear that AGL had made a commitment to the Mir Group to make LGF AGL's nominee under the option deed. The other alternatives were never pursued.
LGF lodged a caveat on Lots 101, 102 and 103. In mid-October, LGF served on Mr Mitchell formal notice of exercise of the option as AGL's nominee.
Mr Mitchell refused to accept that he had been outmanoeuvred. He raised various grounds of objection to the exercise of the option by LGF. In 2014, LGF brought proceedings against Mr Mitchell in this Division. Mr Mitchell's defences failed, and the Court declared that LGF was entitled to complete the purchase of the land as AGL's nominee at a price which gave credit for the option fees paid by AGL: Leafs Gully Farm Pty Ltd v Mitchell [2015] NSWSC 1460. Mr Mitchell appealed to the Court of Appeal. The appeal was dismissed: Mitchell v Leafs Gully Farm Pty Ltd [2016] NSWCA 92. Following the dismissal of the appeal, in October 2016 LGF completed the purchase of Lots 101, 102 and 103 from Mr Mitchell at a price of $11.85 million.
Meanwhile, in May 2016, Mr Dodd had learned of the dismissal of Mr Mitchell's appeal. He wrote on CRS letterhead purporting to confirm the sale "as per our Agency Agreement dated on 23.05.2013". Enclosed was a tax invoice for $200,000. Mr Mitchell denied liability. The present proceedings were commenced by CPC in December 2016.
Where a plaintiff sues on a contract, an essential element of the plaintiff's case is to prove that the parties have in fact agreed on particular terms. Usually, if the parties have signed an apparently complete agreement, that will be sufficient to establish such agreement. But it is always open to the other party to show, on the evidence, that there was in fact no agreement on those terms.
A particular application of this principle is that it is open to a party to prove that, although there is an apparently complete written agreement, the parties in fact agreed on additional oral terms. This does not infringe the parol evidence rule, because the extrinsic evidence goes to identifying the terms of what the parties' agreement in fact was, not the construction of the terms so identified: County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [8]-[9].
By parity of reasoning, it must be open to a party to show that although there is an apparently complete written agreement, there was in fact no agreement on a particular written term. Such cases may be unusual, but in my view this is one of them.
For these reasons, I conclude that printed cl 3.1 of the Terms and Conditions is not part of the Agency Contract. It is not necessary to decide whether any of the other terms and conditions were part of the Contract, as none of them bear on the question of remuneration.
If I am wrong in this view, then I think that the present is a case for rectification. If the parties did, objectively, agree on the inclusion of cl 3.1, it was clearly a mistake. The proper course would be to rectify the contract so as to exclude it.
To this point I have been dealing specifically with cl 3.1 of the printed form. Section A in Part 2 also refers to exclusive agency. The appointment was expressed to be as "as exclusive selling agent for the sale of the property". This section of the contract was completed by the parties. It appears before the signature part. There is more difficulty in treating it as falling outside what the parties in fact agreed. But for the reasons which I have already given, I think rectification would be available to delete it, or to replace it with the word "sole". In any event, in the particular circumstances of this case it would probably be necessary, as a matter of construction, to read it as the word "sole". If I am wrong in this view, I explain below that it would be read that way as a matter of construction in any event.