Costi Cohen Pty Ltd v Bo [2025] NSWDC 356 | Case summary | Zoe

NSWNSWDC

Costi Cohen Pty Ltd v Bo

[2025] NSWDC 356

District Court of NSW|2025-09-12|Before: Habib SC DCJ

View on NSW Caselaw

At a glance

Source facts

Court

District Court of NSW

Decision date

2025-09-12

Before

Habib SC DCJ

Catchwords

CONTRACTS –construction – uncertainty – unfair terms
– misleading and deceptive conduct – unconscionability
–
Contracts Review Act – conventional estoppel – quantum meruit

Source

Original judgment source is linked above.

Catchwords

CONTRACTS –construction – uncertainty – unfair terms– misleading and deceptive conduct – unconscionability–Contracts Review Act – conventional estoppel – quantum meruit

Judgment

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

Medium Neutral Citation: Costi Cohen Pty Ltd v Bo [2025] NSWDC 356

Hearing dates: 5 – 7 August 2025

Date of orders: 12 September 2025

Decision date: 12 September 2025

Jurisdiction: Civil

Before: Habib SC DCJ

Decision: (1) The parties are to confer, and provide to my associate within 7 days, draft orders by consent giving effect to these reasons including a calculation of the pre-judgment interest to which Costi Cohen is entitled to pursuant to s.100 of the Civil Procedure Act. If the parties cannot agree on the orders, they are to provide their competing orders within the same 7 days. (2) Any party who wishes to file submissions on those submissions within 7 days, such submissions to be no more than 5 pages in length. (3) If a party wishes to address the Court on the question of costs, they are to notify my associate of that fact within 7 days. (4) If the parties do not agree on orders pursuant to order 1 above, or either party gives notice of a wish to address the court on costs pursuant to order 3 above, the Court will list the matter on either 26 September 2025 or 10 October 2025. If a listing is required, the parties are, within 7 days, to notify my associate identifying which of the two dates is mutually preferred. Otherwise, the Court will make final orders in chambers.

(a) On 24 October 2023, Mr Bo was introduced to Costi Cohen by a representative from Knight Frank. A representative from Costi Cohen, Zachery Harkins, on the same day, had a conversation over the telephone with Mr Bo during which they discussed Mr Bo’s interest in acquiring a commercial property and Costi Cohen’s services; (b) On 25 October 2023 Mr Bo emailed Costi Cohen asking it to provide information memoranda on two properties, one in Smithfield and one in Rozelle; (c) On 26 October 2023, Mr Harkins, by email, provided Mr Bo with information on those two properties; (d) On 26 October 2023, Mr Harkins, by email, provided Mr Bo with information on two other properties, one at Rosebery and one at St Leonards; (e) Further emails were exchanged between Mr Harkins and Mr Bo which related to a further property at Frenchs Forest; (f) In November 2023, Mr Harkins met with Mr Bo in person. They further discussed Costi Cohen’s services and fees; (g) On 13 November 2023, Costi Cohen provided, by way of email, an Agency Agreement to Mr Bo. Two minutes after receiving the Agency Agreement, Mr Bo signed it electronically on his mobile phone; (h) On the same day, after the issue of the Agency Agreement, Costi Cohen issued an invoice for its retainer fee of $5,500 to Y&M Australia Pty Ltd (“Y&M”). It was Mr Bo who asked for the invoice to be issued in Y&M’s name. The retainer fee was paid on 15 November 2023 ; (i) After 13 November 2023, Costi Cohen was engaged in seeking to identify properties for Mr Bo. Mr Harkins sets out in some detail the work carried out in his affidavit of 29 December 2024; (j) On 25 March 2024, Mr Harkins called Mr Bo to advise him about the Drummoyne Property; (k) Also in March 2024, Mr Harkins was in contact through WhatsApp messages, with Mr Bo’s wife, Geying Ma (“Ms Ma”), on the request of Mr Bo, in relation to certain properties, including the Drummoyne property; (l) On 2 May 2024, Mr Harkins sent Grandwin Legal (solicitors who acted for Y&M) a draft contract for the purchase of the Drummoyne property. Further emails were exchanged between Grandwin Legal and Sage Legal (the vendor’s solicitors); (m) On 15 May 2024, an offer was made by Y&M for the purchase of the Drummoyne property for $7.35m. Mr Bo and Ms Ma, both directors of Y&M, executed a contract for the purchase of the Drummoyne property for $7.35m and it was sent to Sage Legal by Mr Harkins on 16 May 2024; (n) On 17 May 2024, Sage Legal emailed Costi Cohen advising that the vendor had rejected the offer for the Drummoyne property. Mr Harkins informed Mr Bo of that rejection on 21 May 2024; (o) Boying was incorporated on 20 May 2024. Shortly after Ms Ma became the sole shareholder; (p) On 23 May 2024, Boying offered to purchase the Drummoyne property for $7.55m; (q) On 7 June 2024, Boying exchanged contracts with the vendor of the Drummoyne property for the sale price of $7.55m and settlement occurred on 19 July 2024.

Costi Cohen relied on two affidavits of Mr Harkins. He gave evidence and was cross examined.
In his first affidavit, Mr Harkins gave evidence that in his initial conversation by phone with Mr Bo, Mr Bo indicated interest in acquiring commercial property up to a price of $13m with potential to increase to $20m. Mr Bo ideally wanted to have a net yield of 6.5%. Mr Harkins outlined Costi Cohen’s role, namely as a specialist in sourcing properties off market and in running due diligence, negotiating deals and assisting with the exchange and settlement of properties. He met Mr Bo in person in November 2023 and explained that Costi Cohen charged a retainer fee of $5,000 payable at the time of entry into the agency agreement, plus a commission of 2% upon a property being purchased. He gave evidence that Mr Bo wanted to sign an agreement ‘on the spot’ but an agreement was yet to be prepared.
Mr Harkins’ evidence was that Mr Bo’s initial criteria included a preference for a net yield of 6.5% with ideally a five-year lease term, though this was not a strict requirement. Mr Harkins gave evidence of the work he performed after execution of the Agency Agreement. He identified a range of properties for Mr Bo, including at Waterloo, St Leonards, Summer Hill and other locations. He investigated the prospective properties by reviewing available information and provided information on the properties to Mr Bo and spoke to him about them. At Mr Bo’s request, he also spoke to and met Ms Ma and organised inspections with her. He negotiated with vendors of some of the prospective properties. He provided further detail in his affidavit of the work he did in relation to the prospective properties which was corroborated, in large part, by contemporaneous documents referred to in paragraphs 30, 32,34,37,39,42,45,47,49,52,57,66,67 and 69 of his first affidavit.
Mr Harkins sets out, in paragraphs 70 to 96 of his first affidavit, that he identified the Drummoyne property, he dealt with Mr Bo and Ms Ma about the property, he was involved in the making by Y&M of an offer to purchase it at $7.35m and he communicated the vendor’s rejection of the offer to Mr Bo. His evidence is corroborated by the documents referred to in paragraphs 76, 79, 82, 85, 87, 92, 94, and 96 of his affidavit.
I accept Mr Harkins’ evidence referred to in paragraphs 18-20 above and find that Mr Harkins carried out substantial and meaningful work after execution of the Agency Agreement in sourcing properties for Mr Bo and assisting him in relation to the possible purchase of commercial properties that may have been of interest to Mr Bo, including the Drummoyne property.
In his reply affidavit, Mr Harkins gave evidence that his discussions with Mr Bo and Ms Ma were in English and he observed their interactions with third parties were in English. He gave further evidence about what he told Mr Bo about Costi Cohen’s services prior to the execution of the Agency Agreement. I will deal with that below. He also gave evidence of the discussions he had with Mr Bo after execution of the Agency Agreement, in relation to a commercial property that Mr Bo was looking to purchase in Bondi Junction. Mr Bo told Mr Harkins about inquiries he had made about the property prior to approaching Costi Cohen and asked Mr Harkins to confirm that he would not be required to pay a commission to Costi Cohen if he purchased the Bondi Junction property. Mr Harkins gave that confirmation.
In cross examination, Mr Harkins first said that prior to the Agency Agreement being issued, he told Mr Bo that its minimum term would be six months. His reply affidavit, however, is to the effect that prior to the agreement being issued, he did not discuss the agency term period with Mr Bo. He accepted his answer in cross examination contradicted his affidavit. He was ultimately driven to accept that he said to Mr Bo that the agreement was for six months but did not describe that as a minimum. He also accepted that he did not tell Mr Bo that the agreement continued after six months until terminated on 30 days’ notice (or until a property was purchased). He also agreed that he did not explain the terms of the Agency Agreement to Mr Bo or check that Mr Bo understood it after it was sent to him.
My impression of Mr Harkins was that he was a witness of truth, although in relation to what was said concerning the term of the Agency Agreement, he was not careful in his responses in cross examination and gave inconsistent evidence. Whilst the exchange concerning that matter was not to the credit of Mr Harkins, I considered he did his best, otherwise, to give truthful answers. He was prepared to make concessions when it was appropriate and gave his evidence, I thought, in a forthright manner.

(a) Mr Bo has been a director of Y&M since 2 December 2013, apart from a short time when he ceased to be a director. Y&M has been used as a vehicle to purchase property since December 2013; (b) as a company director, he has used an accountant for the purpose of preparing tax returns in Australia; (c) various changes have occurred in the shareholding of Y&M. He and Ms Ma were, at the time of his dealings with Costi Cohen, directors and shareholders of Y&M; (d) he had access to professional help of an accounting and legal nature when required and he called on that help from time to time when he wished to do so; (e) Y&M owned commercial property in Bondi Junction which was purchased for $12.5m. Mr Bo accepted he was an active commercial property investor well before engaging Costi Cohen; (f) he and Ms Ma were directors of FA-Futured Developments Pty Ltd which owns a property in Merton Street, Zetland. In the capacity as a director of the company, Mr Bo executed a lease agreement on 1 January 2018; (g) he was well capable of determining likely yields on commercial investment properties; (h) he understood the concept of personal guarantees, caveatable interests and stamp duty; (i) in relation to the Drummoyne property, he wanted to keep his total out of pocket expenditure, including any commission payment, to $7.5m; (j) within approximately a month of the time Boying settled on the Drummoyne property, Mr Bo was trying to sell commercial property at Macquarie Park; (k) in relation to Boying’s purchase of the Drummoyne property he received correspondence from Mr Liu (the original solicitor he used when seeking to purchase the property through Y&M) that was not copied to his wife. Mr Bo initially did not accept this and said he thought all correspondence was sent to his wife and was copied to him. He was confronted with objective evidence that that was not true; (l) he claimed that when he signed the Agency Agreement there was “a little bit” of urgency from Mr Harkins for it to be signed and urgency from himself. He had not said this in his affidavit; (m) he accepted that he continued communicating with Mr Harkins about purchasing the Drummoyne property after six months from execution of the Agency Agreement and he, with Costi Cohen, were still negotiating for that purchase. He accepted that had the property been purchased for the $7.35m offered by Y&M, he would have been liable to pay the commission on that purchase notwithstanding it occurred beyond six months from execution of the Agency Agreement and the purchaser was Y&M. He claims it was Costi Cohen who contacted him after the six-month period to continue discussing a possible purchase; (n) He said he would not have purchased the Drummoyne property for $7.55m, claiming his ceiling was a total outlay of $7.5m. In an answer to a question from the Court, he said even if he could purchase the property at $7.55m inclusive of commission, he would not have done so. I do not accept that evidence. The difference between the two figures is only 0.66%. Whilst a purchaser is likely to have some limit in terms of price before the purchase no longer provides sufficient value, I consider that in the context of the commercial property that Mr Bo was interested in, it is implausible that he would have refused the purchase at a total outlay of $7.55m as opposed to $7.5m. Further, Mr Bo’s demeanour in answering the Court’s question gave me the distinct impression that he was being untruthful.

Mr Bo was not an impressive witness. He sought to minimise his role in instructing Mr Liu in relation to Boying’s purchase of the Drummoyne property. When he was taken to documents sent by him that showed him on another occasion pursuing his legal rights, he sought to deflect their effect by claiming that it was his solicitor who prepared the documents, even though they were sent from his email address, and even though he gave evidence that in general he refrained from consulting solicitors due to their high cost. He sought to minimise his involvement and understanding in commercial documents. He sought to rationalise emails to which he was taken rather than give direct evidence about them. In relation to his execution of the Agency Agreement, nowhere in his affidavit evidence did he suggest that anyone from Costi Cohen asked or suggested that he execute it quickly. In cross-examination, he suggested that Mr Harkins in fact mentioned to him to be quick in signing the Agency Agreement, although he later watered that down to suggest the urgency was only “a little bit” from Mr Harkins. I reject that evidence. There is no contemporaneous documentary support; it was not referred to in Mr Bo’s affidavit; his demeanour in giving that evidence did not give me the impression that he was being truthful; and the proposition was not put to Mr Harkins.
In giving his evidence, I observed that he appeared to have no difficulty in reading and understanding the many documents to which he was taken, which were in the English language. He used the interpreter intermittently in giving his evidence, although I do not place any reliance on that.
Having observed his giving of evidence, my general impression of him was that he was advocating for his position rather than doing his best to assist the Court irrespective of the consequences of an answer for his case. For the purposes of fact finding, the Court will only accept Mr Bo’s evidence on any critical contested issue if it is inherently likely, against interest, or corroborated by contemporaneous written evidence or other reliable testimony.

Mr Bo relied on an affidavit of Ms Ma.
In her affidavit, Ms Ma gave evidence that she attended an inspection of the Drummoyne property on 25 March 2024 with Mr Harkins. At the time she had no knowledge of the property and had no intention of purchasing it but agreed to help Mr Bo by inspecting it. The inspection was very brief and concluded within five minutes. She thought the location of the property was good. She said she only knew Mr Harkins was a real estate agent and did not know he was from Costi Cohen.
She said in her affidavit that she had a conversation with her husband on 14 May 2024 in which he told her that he was considering purchasing the property for $7.35 million. She had a subsequent conversation with her husband, and he told her that the vendor or agent said that the lowest price the vendor would accept was $7.6 million. She said she had a further conversation with her husband on 22 May 2024, and she said that if Mr Bo didn’t want to buy the property she might and that she thought the property was worth a little more than $7.35 billion. She told her husband that she wanted to send an offer of $7.55 million to the vendors. She said that she was holding onto a lot of funds which was a waste if she did not invest those funds. She said Mr Bo agreed to use Mr Liu to deal with the legal process. She said she incorporated Boying to buy properties for herself and separate from her husband. She said in her affidavit that the purchase was intended for herself and had nothing to do with Mr Bo. She said that all profits and losses in connection with the property will be borne by her or her company and not Mr Bo.
Ms Ma was cross-examined. She accepted that Mr Bo was more experienced in the Australian property market than she was, at least with respect to pricing. She accepted that over the 11 years of Y&M’s operation, Mr Bo primarily made the decisions with respect to properties to purchase.
She claimed that although Boying was incorporated on 20 May 2024 she made the application for incorporation with her accountant in March 2024. There is no contemporaneous document in evidence to support that evidence nor is it referred to in her affidavit. She claimed that when she attended the inspection of the Drummoyne property, she thought Mr Harkins was the agent for the vendors of the property.
She was taken to correspondence with Mr Liu in relation to the purchase of the Drummoyne property which involved Mr Bo. She refused to concede that Mr Bo was the one facilitating the transaction and claimed he was merely helping her complete the transaction. At first she claimed that her husband was merely helping her to get into contact with the solicitor and she sought to explain certain correspondence sent to Mr Bo by suggesting that the vendors, having previously understood that Y&M was seeking to purchase the property, naturally thought it was convenient for Mr Bo to be the contact person. She was taken to emails concerning the potential purchase of the property which were sent to her husband and not copied to her. She sought to minimise Mr Bo’s involvement in the purchase by Boying. She maintained that she, through her company, was the sole purchaser.
I did not regard Ms Ma as an impressive witness. She refused to concede matters that were established by documents, and she sought to explain away, in an argumentative manner, her husband’s involvement in the purchase by Boying of the Drummoyne property.
The effect of her evidence was that she attended the Drummoyne property once for an inspection that took no more than five minutes in circumstances in which she had no interest in purchasing the property and thought Mr Harkins was the vendor’s agent. Apart from her execution of the Y&M contract (as part of the $7.35m offer which was rejected), there is no evidence of her having any further involvement until the alleged conversations she said she had with Mr Bo in May 2024, some two months later. There is no evidence she engaged in any research in relation to the Drummoyne property. There is no evidence that she knew anything about the nature of the leases on the property (for example length, the identity of the tenants, or the rent) nor any details about the square metreage of the property. In her cross-examination she appeared to justify a higher purchase price by speaking of potential capital increases. However, there is no evidence that she engaged in any analysis of property trends in Australia, New South Wales, Sydney, or the Drummoyne area in relation to commercial properties, let alone having a basis to consider trends of 30% or 40% to which she gave evidence (even though that evidence in itself was vague as to the timing of the suggested trends, and whether those were theoretical figures referred to simply to make her point). In short there is no evidence of any material activity engaged by Ms Ma in relation to the Drummoyne property between the short five-minute inspection in March 2024 and the alleged conversations with her husband immediately prior to the making of the offer by Boying.
The documents concerning Boying’s purchase of the Drummoyne property reflect Mr Bo’s continued involvement in the purchase. On 5 May 2024, Mr Liu sent an email to the vendor’s solicitors noting that he acted for “the purchaser Y&M Australia P – L”. On 23 May 2024 Mr Liu sent an email to the vendor’s solicitors which was copied only to Mr Bo. In it,he said: “we advise that our client has revised their offer as follows: our offer price to be increased to 7.55 million; purchaser entity be revised to Boying Developments Pty Ltd”. It is instructive that the solicitor said “our client has revised their offer” because the engagement with the vendors had been on behalf of Y&M Australia Pty Ltd, a company in which both Mr Bo and Ms Ma had shareholder interests, although Mr Bo was the driving force with respect to property purchases.
Mr Bo, without copying Ms Ma sent an email dated 28 May 2024 to Mr Liu in which he asked him to “pls send contract… to us for sign ASAP then we send… for sign by vendor… The effective time for sign is until tomorrow 5:00 PM”. Again, that email is instructive because it is Mr Bo and not Ms Ma who is instructing Mr Liu and also because it refers to the sending of the document for “us” to sign. On 28 May 2024, Mr Liu sent an executed contract to Knight Frank copied only to Mr Bo and the vendor’s solicitor. Similarly, emails on 7 June 2024 between Mr Liu and the vendor’s solicitor were copied only to Mr Bo and not Ms Ma. On 16 July 2024, Grandwin Legal, Mr Liu’s firm sent proposed settlement figures copying the email to Mr Bo only and not Ms Ma. On 16 July 2024 the vendor’s solicitors responded to Grandwin Legal by email concerning the proposed settlement figures copied to Mr Bo. Grandwin Legal sent a further email on 17 July 2024 to the vendor’s solicitor copied only to Mr Bo and not Ms Ma. On 16 July 2024 Mr Liu emailed Mr Bo only, telling him that the settlement figures had been confirmed by the vendor and noted certain amounts would be paid at settlement. That email was then sent to both Mr Bo and Ms Ma on 18 July 2024 and subsequently Mr Liu sent Ms Ma a confirmation on 19 July 2024 of the receipt of the settlement fund of $7.252 million and noted the manner in which it would be dispersed.
In the light of the correspondence referred to in paragraph 45 above, I reject Ms Ma’s characterisation of Mr Bo’s involvement in the purchase by Boying of the Drummoyne property. I consider that her evidence in this regard was not truthful.
Similarly to my impression of Mr Bo, my general impression of Ms Ma was that she was advocating for Mr Bo’s position in these proceedings rather than doing her best to assist the Court irrespective of the consequences of an answer for his case. I regarded her evidence as involving argumentative answers and attempts to avoid conceding matters she considered unhelpful to her husband’s case. For the purposes of fact finding, the Court will only accept Ms Ma’s evidence on any critical contested issue if it is inherently likely, against interest or corroborated by contemporaneous written evidence or other reliable testimony.

(a) there is no double definition of the term ‘Client’. The definition is in clause 1.1. Pages 1 to 3 of the Agency Agreement are not separate and distinct to the Terms of the Agency Agreement. The Agency Agreement must be read as a whole, and the definitions clause determines the meaning of the terms that are defined. Clause 1.1 defines ‘Client’, absent contrary intention, as including the party described as ‘Client’ in Part 1. Accordingly, given that inclusion, it could hardly be said that the reference of a party as ‘Client’ in Part 1 contradicts the definition in clause 1.1; (b) There is no indeterminate breadth of the definition in clause 1.1(f). The clause is clear even if wide in reach. The definition refers to internal definitions which are themselves defined in clear terms. Certain of those definitions in turn refer to provisions of the Corporations Ac**t. No submission was made that the Corporations provisions referred to are themselves incapable of application or understanding. The fact that the definition may require detailed analysis of facts to determine whether any particular fact situation falls within the definition or not, does not render the definition uncertain. Nor is it uncertain because it may operate widely, or even extremely widely; (c) The fact that each clause in which the term ‘Client’ is used may be the subject of a contractual construction exercise does not suggest, of itself, uncertainty in the relevant sense; (d) For the same reasons referred to in (a) to (c) above, the use of term ‘Client’ does not result in indeterminate obligations or payment triggers. That the contract may require a process of contractual construction in relation to each clause in which the term ‘Client’ is used does not cause those clauses to be indeterminate. (e) Finally, it cannot be said, in my view, that through the application of ordinary rules of contractual construction, the language used is so obscure and imprecise that no contractual intention can be discerned because of the way ‘Client’ is used and defined in the Agency Agreement.

It is common ground that the Drummoyne Property was not purchased by Mr Bo himself. Whether the purchase falls within clause 4.2(a) depends, on Costi Cohen’s case, on whether he procured Boying to enter into the contract to purchase the Drummoyne property.
The term ‘procure’ is not defined in the Agency Agreement. The term procure has been held to mean “to produce by endeavour, for example by asking or demanding” [2] . It has been said that it “must import effort, care, management or contrivance towards the obtaining of a desired end” [3] . In a statutory context it been said that “‘procuring’ means taking action to bring about the result in that there must be a causal connection between that action and the conduct impugned” [4] . The Macquarie Dictionary relevantly defines ‘procure’ as:
‘to obtain, or get by care, effort, or the use of special means;
‘to effect; cause; bring about, especially by.. indirect means’
Even on Mr Bo’s case, until a few days before Boying made its offer to purchase the Drummoyne property, only Mr Bo gave active consideration to the possible purchase of the Drummoyne property. That purchase was proposed to be a purchase by Y&M. That company was a company in which both Mr Bo and Ms Ma each had an interest as shareholders. Yet it was only Mr Bo who was concerned with determining the price to be offered on behalf of that company. Ms Ma left that entirely to Mr Bo.
Mr Bo’s evidence was that he wished to spend up to $7.5 million in total on the purchase of the Drummoyne property including commission. A purchase of the property at $7.35 million (which was the price offered by Y&M) would have attracted a commission of $147,000 (excluding GST), which would result in a total outlay $7.497m.
Had the purchase price for the Drummoyne property, however, been say $7.5 million then clearly the total outlay would be well in excess of that amount once commission was included. Mr Bo accepted that he understood that if Y&M purchased the Drummoyne property he would be obliged to pay commission under the Agency Agreement.
I reject the evidence of Mr Bo and Ms Ma in relation to the purchase by Boying of the Drummoyne property. Ms Ma deferred to Mr Bo in relation to the price to be offered by Y&M, a company in which she was shareholder. As noted earlier, there is no evidence that she engaged in any analysis whatsoever in relation to the property other than a brief five-minute inspection in circumstances where she had no interest in purchasing the property. The correspondence between Mr Liu and the vendor's solicitor reflected a situation where the client remained the same, but the purchasing entity had varied from Y&M to Boying. As reflected earlier, contrary to Ms Ma’s evidence, Mr Bo was the principal contact and instructor to Mr Liu in relation to the purchase including giving him a direction to send the contract to purchase to “us” for signing.
There is no evidence before the Court of Ms Ma having purchased, before or after the Drummoyne property purchase, any property in Australia on her own account, or through a company in which she was sole shareholder. The evidence disclosed only that property had been purchased in Australia through the companies Y&M and FA-Futured, companies in which both Mr Bo and Ms Ma held shares. Mr Bo was the one who dealt with Costi Cohen in relation to the Drummoyne property; he was the one who had the interest in acquiring further commercial property in Australia, and intended to do so through Y&M.
I am comfortably able to infer, and I find, that Mr Bo procured Boying to enter into the contract to purchase the Drummoyne property. I find that, it was his effort and conduct that brought about the purchase, and he solicited the purchase by Boying. His conduct amounts to ‘procuring’ under any of the definitions referred to in paragraph 84 above. Although it is not necessary to find a specific motive for him doing so, I am comfortably able to infer, and I find, that he did so to keep the total outlay for the purchase at approximately $7.5 million by avoiding, in his mind, an obligation to pay commission to Costi Cohen. He clearly held the view that the Drummoyne property was a good investment, and he procured the entry by Boying into the contract for its purchase. The fact that he does not hold shares in Boying does not negate a finding that he procured its purchase by Boying.
In making this finding I take into account Mr Bo’s involvement with Mr Liu in relation to the entry into the contract by Boying to purchase the Drummoyne property.
In making my findings, I also have regard to my view of Mr Bo’s and Ms Ma’s evidence referred to in paragraphs 35 and 47 above. Mr Bo’s submissions referred to the abolition of the Married Women’s Property Act 1893 (NSW) and asserted that an implicit assumption in Costi Cohen’s case was that Ms Ma should be seen simply as an extension of her husband. My findings did not proceed upon any such assumption but are based on the matters I have identified in this judgment.
I find that for the purposes of clause 4.2(a) of the Agency Agreement, Mr Bo procured Boying to enter into the contract to purchase the Drummoyne property.

(a) the underlying policy of unfair contract terms legislation respects true freedom of contract and seeks to prevent the abuse of standard form consumer contracts which, by definition, will not have been individually negotiated*:* Jetstar Airways Pty Ltd v Free [2008] VSC 539 at [112]; (b) the requirement of a “significant imbalance” directs attention to the substantive unfairness of the contract: Director-General of Fair Trading v First National Bank plc [2002] 1 AC 481 at [37]; (c) it is useful to assess the impact of an impugned term on the parties’ rights and obligations by comparing the effect of the contract with the term and the effect it would have without it: Director-General of Fair Trading v First National Bank plc at [54]; (d) the “significant imbalance” requirement is met if a term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in its favour — this may be by the granting to the supplier of a beneficial option or discretion or power, or by the imposing on the consumer of a disadvantageous burden or risk or duty: Director-General of Fair Trading v First National Bank at 494 [17] per Lord Bingham, applied in ACCC v ACN 117 372 915 Pty Ltd (in liq*) (formerly Advanced Medical Institute Pty Ltd)* [2015] FCA 368 at [950]; (e) significant in this context means “significant in magnitude”, or “sufficiently large to be important”, “being a meaning not too distant from substantial”: Jetstar Airways Pty Ltd v Free at [104]–[105] per Cavanough J: Cf Director of Consumer Affairs Victoria v AAPT Ltd [2006] VCAT 1493 at [32]–[33]; (f) the legislation proceeds on the assumption that some terms in consumer contracts, especially in standard form consumer contracts, may be inherently unfair, regardless of how comprehensively they might be drawn to the consumer’s attention: Jetstar Airways Pty Ltd v Free at [115]; (g) in considering “the contract as a whole”, not each and every term of the contract is equally relevant, or necessarily relevant at all. The main requirement is to consider terms that might reasonably be seen as tending to counterbalance the term in question: Jetstar Airways Pty Ltd v Free at [128].

In so far as 4.2(a)(i), (ii) and (iv) refer to “any property”, in my view the proper construction of those clauses is that the reference is a reference back to the defined term ‘Property’. That is so because the chapeau contains the defined term which, as a matter of consistency in construction, controls the term ‘property’ when it is subsequently used in the clause. To construe the term without reference back to the defined term as used in the chapeau would produce entirely absurd results – for example “any property” would not be limited to real estate and would include any chattel completely unrelated to the contract. The parties cannot be presumed to have had such an intention;
Under the agreement, as noted earlier, the defined term ‘Property’ means “any property which meets any of the criteria set out in Part 4 of the Particulars (or as varied)”. The criteria in Part 4 of the Agreement is expressed in quite general terms (see paragraph 50 above)
Accordingly, the effect of clause 4.2(a)(i) and (ii) is that if Mr Bo, or any person or entity he procures to do so, enters into a contract in relation to property meeting any of the criteria set out in Part 4, Mr Bo must pay a fee of 2% plus GST of the purchase price to Costi Cohen. That is so whether Costi Cohen had any involvement whatsoever in sourcing, finding, or introducing the property to Mr Bo.
The first question is whether, clause 4.2(a), by reason of its application whether Costi Cohen found or introduced the relevant purchased property, causes a significant imbalance in the parties’ rights and obligations under the contract.
As noted above, such a significant imbalance occurs if the relevant term is so weighted in favour of the supplier as to tilt the parties’ rights and obligations under the contract significantly in the supplier’s favour — this may be by granting to the supplier a beneficial option or discretion or power, or by imposing on the consumer a disadvantageous burden or risk or duty. In my view, clause 4.2 imposes a significant burden upon Mr Bo, namely the burden paying a 2% commission to Costi Cohen, a buyer’s agent, even in circumstances where the sourcing of the relevant purchased property had nothing to do with the agent. The clause heavily favours Costi Cohen’s right to a fee regardless of their performance, or connection, in sourcing the purchased property.
In terms of transparency, I consider that the term is transparent. Whilst it appears as part of the standard terms and conditions, the words “regardless of who funds the purchase of, finds or introduces the Property” are in plain English and can be readily understood.
Nevertheless, I conclude that Mr Bo has satisfied s24(1)(a) of the ACL.
With respect to section 24(1)(b) of the ACL, as noted above, s.24(4) provides a presumption that a term is presumed not to be reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term, unless that party proves otherwise. Costi Cohen neither by evidence nor any developed argument sought to advance a basis as to why it was reasonably necessary in order to protect the legitimate interests of Costi Cohen to have a term such as clause 4.2(a) entitling it to a commission even when it was not the effective source of the property purchased. Costi Cohen’s main submissions in relation to clause 4.2(a) was to support the need for clause 4.2(a) to capture purchases by nominee companies or entities or persons who Mr Bo procured to purchase the property - on a number of occasions, Costi Cohen submitted that “this very case…” showed the need for such a requirement. However, Costi Cohen did not prove why it was reasonably necessary for it to be entitled to a commission when it was not the effective source of the property purchased. Particularly is this so when Costi Cohen was paid a retainer of $5,000 plus GST in any event.
With respect to s.24(1)(c) of the ACL, it is plain that if the term was applied by Costi Cohen it would cause detriment to a party because that party would be obliged to pay a commission; that is, there would be a financial detriment in circumstances where the purchase of a property had no connection or relationship with the work done by the agent.
On the facts of the present case, Costi Cohen did not take advantage of the element of clause 4.2(a) that I have found rendered it unfair. That is, it did find the Drummoyne property for Mr Bo. Nevertheless, s.23 renders an unfair term void, even though the advantaged party may never have taken advantage of, or enforced, the unfair term : Australian Securities and Investments Commission v Bank of Queensland Ltd [2021] FCA 957 at [44] and [80].
In arriving at these conclusions, I have considered, as I must:

Mr Harkins’ evidence, referred to above, was that he told Mr Bo that the term of the agreement was for six months but did not mention that it was for a minimum of six months. He did that as part of introductory conversations in which he explained the services that would be provided by Costi Cohen to Mr Bo.
Under the Agency Agreement the term of the agreement is for a minimum of six months and terminable after six months on 30 days’ notice by either party. As noted above, Costi Cohen sent the agreement to Mr Bo. The termination provision appears in clause 2(c) of the standard terms. The entitlement to terminate on 30 days’ notice is written in plain English.
Mr Bo’s evidence as to whether he read the Agency Agreement was equivocal although he settled on a position that he looked at the first three pages, and skimmed the rest, but did know there were further terms. In his affidavit, Mr Bo says that he considered the further terms to be ‘standard and generic’ provisions that would not change or add to the key commercial terms that he discussed with Mr Harkins. Mr Bo’s evidence in this regard is vague and at a level of generality that gives it little weight. There were six pages of terms, being pages 4 to 9 of the agreement. It is entirely uncertain what ‘standard and generic’ terms Mr Bo expected to see in those six pages, though he claims that he considered they would not be inconsistent with the commercial terms discussed with Mr Harkins in those introductory conversations.
Ultimately, the issue is whether the conduct of Costi Cohen was misleading and deceptive. Relevantly, the conduct includes both the statements made by Mr Harkins in the circumstances they were made together with the subsequent provision of the Agency Agreement (and the alleged ‘silence’ relied upon by Mr Bo which I will deal with below). In my view, the Agency Agreement clearly identified that the term was a minimum of six months, and the document clearly identified that it was terminable, thereafter on 30 days’ notice. Having regard to the totality of the conduct of Costi Cohen with respect to this allegation, I find that Mr Bo has failed to establish that the conduct was misleading and deceptive or likely to mislead or deceive. I will consider whether silence relied upon by Mr Bo alters the position below.
In any event, I reject Mr Bo’s allegation that Mr Harkins’ statements concerning the term of the agreement induced him to enter the Agency Agreement. The agreement was always capable of termination by Mr Bo after the minimum period expired. No objective basis has been advanced to support Mr Bo’s allegation, and to the extent Mr Bo addresses it in his evidence, that evidence is assertion and does not really explain why, had he known about his right to terminate, he would not have entered the Agency Agreement. I do not accept Mr Bo’s evidence in this regard. I take into account in making this finding my view about Mr Bo’s evidence set out in paragraph 35 above.

Mr Bo’s case is that Mr Harkins made a representation to the effect that 2% of the purchase price would be payable if Costi Cohen successfully introduced a property with a net rental yield of more than 6.5% and otherwise remained silent on the operation of clause 4.2(a) of the agreement.
I have earlier considered the proper construction of clause 4.2(a) and concluded that the reference to ‘Client’ in that clause is a reference to Mr Bo alone. There is no doubt that when Mr Harkins spoke to Mr Bo, he did not spell out the full the nature of clause 4.2(a). He spoke at a level of generality and told him that if he purchased a property introduced to him, he would need to pay the 2% commission. I do not accept that Mr Bo understood from what he was told that he would only need to pay a commission if he personally purchased a property. Such an understanding is unreasonable in my view, and I am fortified in that view by the fact that Mr Bo asked for the invoice for the retainer to be in Y&M’s name, and further when an offer was made on the Drummoyne property, it was done through Y&M. Although that conduct is post execution, it can illuminate the likely state of mind at the time he executed the Agency Agreement. Particularly is this so in relation to the payment of the retainer which occurred on the same day as execution of the agreement.
The substantive effect of clause 4.2(a) is that it triggers an obligation to pay a commission if he either purchases a property or procured another person or entity to purchase a property. It is true, however, that clause 4.2(a)(iii) and (iv) are broader in effect and would capture circumstances far beyond those set out in clause 4.2(a)(i) and (ii).
Nevertheless, and as noted above, the relevant conduct of Costi Cohen is not limited to the statements made by Mr Harkins. It includes its conduct in providing the agreement to Mr Bo. Mr Bo does not give evidence that he did not understand clause 4.2(a), no doubt because he says he did not read it. He does not give evidence that had he read it he would not have understood it.
When Costi Cohen’s conduct is considered as a whole, Mr Bo has failed to establish that the conduct was misleading or deceptive or likely to mislead or deceive. I will consider whether the alleged silence relied upon by Mr Bo alters the position below.
In any event, I am not persuaded that Mr Bo would not have entered into the Agency Agreement had he had clause 4.2(a) specifically brought to his notice. His evidence in his affidavit is given at a level of generality that does not persuade me that he would not have entered the agreement. First, that evidence proceeds on the footing that the term ‘Client’ in clause 4.2(a) means all persons falling within the definition in clause 1.1(f). I have concluded otherwise. Secondly, Mr Bo does not engage specifically with the terms of clause 4.2(a) when giving evidence of what he would have done. For example, it is difficult to accept that Mr Bo would not have entered into the Agency Agreement because the commission would be triggered if he procured another person or entity to purchase a property (as noted above, the original offer made was through Y&M). Further, it is unknown whether Mr Bo would have considered the other circumstances set out in clause 4.2(a) as matters which had a realistic possibility to occur or whether he would have considered them so remote that he would nevertheless have entered the agreement. In so far as clause 4.2(a) applies to a purchase of a property whether Costi Cohen introduces the property or not, Mr Bo’s evidence simply does not address how he would have viewed that had that specifically drawn to his attention. Indeed, Mr Bo must have had at least some idea that that might be the case because he asked Mr Harkins whether, if he proceeded to purchase a property in Bondi Junction (which clearly was not introduced by Costi Cohen) he would have to pay a commission to Costi Cohen pursuant to the Agency Agreement. The fact that he asked that question indicates, at a minimum, that he considered that the agreement might oblige him to do that. Given that he says he did not read the standard terms, and given that the first three pages which he did read do not address that issue, he must have thought that the standard terms may have a term to that effect. I address below whether the ‘silence’ relied upon by Mr Bo alters the position.
Mr Bo has not persuaded me that he would not have entered into the Agency Agreement if the terms of clause 4.2(a) had been specifically drawn to his attention. I take into account in making this finding my view about Mr Bo’s evidence set out in paragraph 35 above.

I accept that Costi Cohen did not explain the clauses referred to above to Mr Bo nor did it suggest that he obtain independent legal advice. I reject the allegation that Mr Bo did not have an opportunity to seek independent legal advice. I have already rejected any suggestion that Costi Cohen applied any pressure, time or otherwise, on Mr Bo to sign the agreement. Mr Bo had the opportunity, if he wished to avail himself of it, to obtain whatever advice he wished. Costi Cohen did not ask him, or suggest to him, that he sign it quickly and, on the train, – they were decisions Mr Bo made himself. Further, whether the terms of the agreement were capable of negotiation is not of significance with respect to the s.18 ACL claim because the terms complained of where part of the standard terms of Costi Cohen and there is no evidence that Mr Bo ever sought to negotiate those terms. He did seek to negotiate the rate of commission, but not the terms he now complains about – he chose not to read them.
Silence may amount to misleading or deceptive conduct in a variety of circumstances. Those circumstances are many and various. Courts have observed that unless the circumstances give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could amount to misleading conduct: Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] FCA 400; (1989) ATPR 46-054 (French J) approved by the Full Federal Court in Demagogue Pty Ltd v Ramensky [1992] FCA 557; (1992) 39 FCR 31; 110 ALR 608; (1993) ATPR 41-203.
The essential question is whether, in all of the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd [2010] HCA 31; (2010) 241 CLR 357; 270 ALR 204; 84 ALJR 644 (French CJ and Kiefel J); Demagogue Pty Ltd v Ramensky (1992) 110 ALR 608; (1993) ATPR 41-203; Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 68 ALR 77; 12 FCR 477; (1986) ATPR (Digest) 46-010.
As a general proposition, s 18 of the ACL does not require a party to commercial negotiations to volunteer information which will assist the decision-making of the other party. It does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard of another party, of equal bargaining power and competence, for its own interests: Miller & Associates Insurance Broking Pty Ltd v BMW [2010] 420 HC 1.
Although I have dealt with the alleged representations separately to determine whether the representations themselves were misleading and deceptive and whether Mr Bo has established that he was induced to enter the agreement by reason of those representations, I must, however, consider whether or not Costi Cohen’s conduct, as a whole, including the alleged matters set out in paragraph 167 above, was misleading and deceptive. That conduct includes:

(a) I accept that Costi Cohen had a stronger bargaining position because it had standard terms and conditions which it was unlikely to vary in a material way. There is no evidence that Costi Cohen had greater familiarity with the Australian legal system than Mr Bo. True it is that Costi Cohen is resident in Australia and it can be inferred has some understanding of legal matters concerning property transactions given its role as a buyer’s agent. However, Mr Bo was experienced in the purchase of commercial property in Australia prior to dealing with Costi Cohen. He was experienced in obtaining the services of advisers including accountants and solicitors as required. He was familiar with the concepts of personal guarantees, caveatable interests, and stamp duty ; he understood the nature of leases. He was shown to pursue his legal rights in Australia against another person with, he says, the assistance of a solicitor; (b) with respect to the Agency Agreement, whether or not it imposed conditions that were not required for the legitimate interests of Costi Cohen, Mr Bo has not established that Costi Cohen has sought to rely on any clause of the Agency Agreement in unfair or unconscionable manner. As I have concluded earlier, clause 4.2(a) only obliges Mr Bo as the client to pay a commission if one of the circumstances occurs. Regardless of the breadth of clause 4.2(a), in this case there can be no dispute that Costi Cohen was the finder of the Drummoyne property for Mr Bo and I have found that Mr Bo procured Boying to enter a contract for its purchase; (c) I do not accept that Mr Bo did not understand the agreement. He didn’t read the agreement on his own evidence other than reviewing the first three pages. I do not accept that any pressure was put on Mr Bo, whether by way of time pressure or any other manner, for him to execute the Agency Agreement. It was entirely a choice of Mr Bo to sign the agreement on his mobile phone while sitting on a train. As noted above he was experienced at consulting professional advisers. Costi Cohen provided the agreement by way of email. At no stage did Mr Bo ask Costi Cohen after receipt of the document for any explanation of any of the terms. (d) It is true, as I have identified above, that Mr Harkins told Mr Bo that the term of the agreement was six months but did not mention that it was a minimum of six months. He also told Mr Bo that he would have to pay commission if he purchased a property but did not explain all the circumstances which Mr Bo would be obliged to pay commission set out in clause 4.2(a). However, Costi Cohen provided the Agency Agreement to Mr Bo. The agreement at Part Six, expressly described six months as a minimum term. Mr Bo said he looked at the first three pages. The minimum term clause was not hidden and was clearly apparent on the face of the document. With respect to clause 4.2(a), had Mr Bo read it, it was clear on its face that he would be obliged to pay a commission if he entered into a contract for the purchase of any property meeting the description in Part 4 or if he procured another person or entity to enter into such a contract. Clause 4.2(iii) and (iv), which deal with other circumstances in which fees may be payable are not, and have not, been relied upon by Costi Cohen; (e) I do not regard the dealings between Costi Cohen and Mr Bo as reflecting any unfair tactics engaged in by Costi Cohen. In summary there were initial conversations between Mr Harkins and Mr Bo during which Mr Harkins provided a broad summary of Costi Cohen’s fees, and the services it could provide, and those matters were more fully set out in the Agency Agreement which Mr Bo was freely able to review and consider at his leisure. There is no evidence that Costi Cohen knew or ought to have known about Mr Bo’s eye condition.

Mr Bo relied upon the same matters for his Contracts Review Act defence and cross claim as he did on his unconscionability claim.
I have earlier found that clause 4.2(a) was an unfair term insofar as it required the payment of a fee on the purchase of a relevant property whether or not Costi Cohen had anything to do with the finding of the property. However, for the same reasons referred to above with respect to Mr Bo’s unconscionability defence, Mr Bo has failed to satisfy the court that the Agency Agreement as a whole is unjust in the circumstances relating to the contract at the time it was made. With respect to the unfair term, even if it is also unjust within the meaning of s.7 of the Contracts Review Act, I would refuse the relief sought by Mr Bo because the element of unfairness that I have found bears no relevance to Costi Cohen’s claim under the Agency Agreement because there is no dispute that Costi Cohen sourced the Drummoyne property. That is, the element of unfairness in clause 4.2 described above simply does not arise in this case. Accordingly, there is no proper basis for relief of the type referred to in paragraph 186 above.
To the extent that Mr Bo relies on the nature of a specific clause of the Agency Agreement for his unconscionability claim, I repeat my findings in relation to those matters set out above. Even if any of those clauses relied upon could be seen as rendering the Agency Agreement as unjust, I would refuse the relief sought by Mr Bo under the Contracts Review Act because I am unpersuaded that Costi Cohen has, in its application of the agreement with respect to Mr Bo, relied on it in an unjust manner.
With respect to the matters set out in s.9 of the Contracts Review Act, I have taken those matters into account and relied on my findings which touch upon them. For example, I have in this judgment made findings concerning the nature of the parties involved, whether the Agency Agreement was negotiable, the nature of the Agency Agreement, the consequence of the various terms relied upon by Mr Bo in his defence, the relative bargaining power of the parties, the ability of Mr Bo to protect himself ( I have referred to his use of advisors), and whether unfair pressure or tactics were use by Costi Cohen.
I conclude that Mr Bo has failed to establish an entitlement to relief under the Contracts Review Act.

The difficulty with the estoppel by convention relied upon by Costi Cohen is that framework in sub-paragraphs (a)-(c) in paragraph 15 of the Reply does not properly state the breadth of clause 4.2(a). It can be inferred that Costi Cohen, the proponent of the Agency Agreement assumed that the agreement was valid and legally binding. The agreement was prepared by a lawyer, and was the standard agreement used by it. However, it can equally be inferred that Costi Cohen assumed it would be entitled to a commission in any of the circumstances set out in clause 4.2(a), including whether or not it found the property purchased. Such an assumption is far broader than that set out in sub-paragraph (c) which is the assumption said to have existed in relation to Costi Cohen’s entitlement to fees. Further, it can be inferred that Costi Cohen assumed it would receive a commission in any of the circumstances set out in (i)-(iv) of clause 4.2(a). Again, those circumstances are broader than sub-paragraph (c), which is only a sub-set of the circumstances in clause 4.2(a).
My reading of the assumption set out in paragraph 15 of the Reply is that sub-paragraphs (d) and (e) do not broaden the assumption in (a)-(c) which deal with the circumstances upon which Costi Cohen would be entitled to a commission. There is no evidence that Costi Cohen assumed that its rights to a commission were limited in the way set out in (a)-(c), in contradistinction to its rights as set out in the Agency Agreement, and in particular clause 4.2(a) (leaving aside the conclusion I have reached on clause 4.2(a) as an unfair term).
Moreover, there is not a sufficient evidentiary basis to find that Mr Bo carried an assumption that the Agency Agreement was valid and binding in all respects. The fact that he signed the agreement is an insufficient foundation for such a finding.
Accordingly, Costi Cohen has failed to establish the mutual assumption pleaded because it has not proved that it proceeded on that assumption.

In the alternative to Costi Cohen’s contract claim, it claims a reasonable amount for the services it provided to Mr Bo on a quantum meruit.
I have found that clause 4.2(a) is void under s.23 of the ACL. Clause 4.2(a) regulates and identifies the circumstances in which Costi Cohen is entitled to the percentage fee set out in Part 7 of the Agency Agreement. Part 7 is an essential aspect of the bargain between Mr Bo and Costi Cohen, it being the agreed consideration, in terms of money, moving from Mr Bo. Mr Bo tried to negotiate a lower percentage fee to be charged by Costi Cohen but Costi Cohen refused. I have no hesitation in finding that Costi Cohen would not have entered the Agency Agreement in the absence of an agreement that Mr Bo pay a fee calculated by way of a percentage of the purchase price of a property.
Section 23(2) of the ACL provides that a contract continues to bind the parties if it is capable of operating without the unfair term. This section appears to bring into statutory form a principle of severance similar to that which applies when a term is void for uncertainty. It is not at all clear, however, that s.23(2) operates in an identical manner. What is meant by the words “capable of operating without the unfair term” is not clear. I was not referred to any authority on the operation of s.23(2) and my own research has not identified any detailed analysis of its application.
Neither party made any submission as to how s.23(2) of the ACL would operate if the Court was to find that clause 4.2(a) was void by reason of s.23(1). Certainly, no party submitted that if clause 4.2(a) was void, Part 7 of the Agency Agreement could and should be given meaning – that is, no party submitted that the words “Percentage of Purchase Price” could have contractual operation (whether by a process of construction or by way of implication) in the absence of clause 4.2(a).
I consider the better view is that if clause 4.2(a) is void, as I have concluded, the Agency Agreement could not continue to operate because a critical and foundational basis of the contract, namely the consideration moving from Mr Bo, is no longer enforceable. Whilst the $5000 (plus GST) retainer was paid, that amount was clearly not the consideration agreed to be provided if a sale eventuated. It was but a component of the consideration. I do not, however, need to express a concluded view about this, particularly in the absence of submissions by the parties specifically directed to that question.
Whether or not, the Agency Agreement is “capable of operating without the unfair term” within the meaning of s.23(2), Costi Cohen is entitled to bring a claim in quantum meruit. In Mann v Paterson Constructions Pty Ltd [7] , Keifel CJ, Bell and Keane JJ at [16] cited with approval the following statement: “…an essential step in considering a claim in quantum meruit…is to ask whether and how that claim fits with any particular contract the parties have made.” [8] . Their Honours concluded at [19] that “in circumstances where the respondent has enforceable contractual rights to money that has become due under the contract, there is no room for a right in the respondent to elect to claim a reasonable remuneration unconstrained by the contract between the parties.”. Similarly, in Mann, Gageler J (as his Honour then was) cited with approval the following statement: “[n]o action can be brought for restitution while an inconsistent contractual promise subsists between the parties in relation to the subject matter of the claim”. [9]
Here, by reason of s.23 of the ACL, clause 4.2(a) of the Agency Agreement is void and Costi Cohen has no accrued right, under the Agency Agreement, to claim the money it seeks in these proceedings by way of quantum meruit. In those circumstances, in my view, the claim “fits” with the Agency Agreement (assuming it continued to operate), and there is no inconsistent contractual promise that subsists in relation to Costi Cohen’s claim. Accordingly, in my view Costi Cohen’s quantum meruit claim should be understood as arising in the context of there being no enforceable contractual claim by Costi Cohen for the relief sought in these proceedings.
The evidence discloses that Costi Cohen provided valuable professional services to Mr Bo, being market analysis, negotiation facilitation, and sourcing properties. I find that the services were requested by, provided to and accepted by Mr Bo. On no basis could it be said that Mr Bo considered that Costi Cohen would carry out those services for no reward, or for only the $5000 (plus GST) retainer. Ultimately it was Costi Cohen’s work that resulted in the identification of the Drummoyne property which I have found Mr Bo procured Boying to purchase.
Costi Cohen asserts that the quantum meruit valuation should reflect the standard commercial value of exclusive buyers’ agency services for transactions of this magnitude. Costi Cohen asserts that the industry-standard commission rate for commercial property agency services of this nature is 2%. However, Costi Cohen led no evidence that that was the industry standard commission rate. It is what Costi Cohen charged for its services.
Costi Cohen relies on Roude v Helwani [2020] NSWCA 310 for the proposition that a court is not precluded in the absence of evidence of a market rate or an objective standard of reasonableness from making an assessment as to whether the evidence adduced establishes the reasonableness of the amount sought. Costi Cohen points out that at no stage was it put to Costi Cohen’s witnesses in cross examination that the fees charged were unreasonable.
Mr Bo for his part advances the following. First, he says that claiming quantum meruit is not available where there is a contract that governs the relationship between the parties. I have dealt with this issue above and conclude that a claim in quantum meruit is, as a matter of law, available to Costi Cohen.
Secondly, Mr Bo says that a claim in quantum meruit is a claim to restitution arising from Mr Bo’s acceptance of benefits accruing to him. Mr Bo emphasises that the obligation on the part of Mr Bo is to make fair and just restitution for a benefit derived at the expense of Costi Cohen. Mr Bo claims that he did not derive benefit from the services because he did not acquire the relevant property. He claims that the beneficiary in terms of the acquisition of the property is Boying and not him.
However, in my view Mr Bo’s analysis of the benefit derived from Costi Cohen’s service is incomplete. The mere fact that Mr Bo does not have a shareholding in Boying does not mean that he did not derive benefits from the services of Costi Cohen. The parties contemplated that fees would be paid for services that led to Mr Bo, or someone he procured, purchasing a property – indeed, the first offer to purchase the Drummoyne property was not by Mr Bo, but rather Y&M. That is, it was of benefit to Mr Bo to have Costi Cohen provide their services, in particular, to locate and present a suitable property that he could purchase or that he could procure another person or entity to purchase. Here, Costi Cohen sourced the Drummoyne property. Mr Bo accepted those services and procured Boying to act upon Costi Cohen’s work. In my view, in such circumstances, Mr Bo accepted and relevantly benefited from Costi Cohen’s work and effort because it enabled him to procure Boying to purchase that property. Costi Cohen’s services were provided to Mr Bo, not Boying.
Subject to establishing a reasonable remuneration for its work, Costi Cohen is entitled to recover on a quantum meruit as it would be unjust for Mr Bo to take the benefit of its work without providing fair and just restitution.
In Horton v Jones (1934) SR (NSW) 359, at 367-368 , Jordan CJ (with whom Halse Rogers J and Markell AJ concurred) noted that the existence of “the unenforceable contract may be referred to as evidence, but as evidence only, on the question of [the] amount” to be recovered as reasonable remuneration. Jordan CJ, in this regard, was referred to with approval by Deane J and Dawson J in Pavey & Matthews Ltd v Paul (1987) 162 CLR 221 (at p250-257; 267-268 respectively). [10]
The Agency Agreement recorded an agreed remuneration of 2% of the purchase price plus GST. The agreement is some evidence going to the question of reasonable remuneration being an amount agreed by the parties. Further, at no stage in his dealings with Costi Cohen did Mr Bo ever assert that its fee was unreasonable, though he did try and negotiate a lower fee. Notwithstanding that, he knowingly agreed that fee. Even when Mr Bo disputed liability to pay the fee, he did not do so on the basis that the quantum of the fee was unreasonable. Further, Mr Costi’s evidence was that since 2020 he has exclusively worked as a commercial property buyer’s agent through Costi Cohen and estimated that he acted for approximately 500 commercial property buyers in respect to the acquisition of commercial properties located in New South Wales. He gave evidence that Costi Cohen’s standard commission fee is between 1.8% to 2.2% depending on the brief and budget for the prospective property.
There was no cross examination, nor any evidence led by Mr Bo to suggest that 2% plus GST was an unreasonable fee for the services, or that the $5,000 plus GST retainer was a reasonable fee for the services (Mr Harkins accepted that that fee was charged so that the work was not a waste of time – however, I do not regard that evidence as implying that the $5,000 was reasonable remuneration, nor was such a proposition put to Mr Harkins). The observation that there was no such cross-examination nor evidence is not to reverse the onus, it being squarely Costi Cohen’s onus to establish its claim. However, when there is ‘evidence, but only evidence’ of quantum that can be used in a quantum meruit claim (namely, the agreed fee for the relevant service), and evidence of such a fee being within the standard fee range charged to hundreds of other clients over a number of years, the absence of any competing evidence, or challenge to that fee, enables the Court to more readily rely on that evidence as sufficiently proving that the amount claimed is reasonable remuneration for the services provided.
Accordingly, I find that Costi Cohen has made good its quantum meruit claim in the amount of $166,100 (being 2% of the purchase price of $7,550,000 plus GST).
For completeness I note that, even if I had found that Costi Cohen engaged in misleading and deceptive conduct or that the agency agreement was unjust under the Contract Review Act, the appropriate relief in the circumstances would be orders (whether by injunction or otherwise) preventing Costi Cohen from enforcing the Agency Agreement. However, in circumstances where Mr Bo accepted the services of Costi Cohen to his benefit and Costi Cohen sourced the Drummoyne property that Mr Bo procured Boying to purchase, such findings would not have defeated Costi Cohen’s claim in quantum meruit.

Costi Cohen Pty Ltd v Bo

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

judgment

Introduction

Facts not in dispute

Costi Cohen’s Witnesses

Tasos Costi

Mr Harkins

Mr Bo’s Witnesses

Mr Bo

Ms Ma

The Contract Claim

The Agency Agreement

Contractual construction principles

Execution and Uncertainty

Legal Principles

Consideration

Construction and application of clause 4.2(a)

Parties’ Position on construction

Consideration

Did Mr Bo procure Boying to enter into a contract to purchase the Drummoyne property within the meaning of clause 4.2(a)(ii)?

Did Costi Cohen perform its contractual obligation to entitle it to payment under clause 4.2

Unfair Terms Defence – s.23 of the ACL

Principles

Clause 2(c)

Clause 4.2(a)

Clause 4.2(a)(iv)

Clause 13

Clause 20(a)

Conclusion on the contract claim

Misleading and deceptive conduct – s.18 of the ACL

Principles

Services to be provided personally

That the agreement was for six months

That a commission of 2% would be payable if Costi Cohen successfully introduced a property with a net rental yield of more than 6.5% which did not set out the full circumstances set out in clause 4.2

Failures to explain the agreement and other matters raised by Mr Bo

Did Costi Cohen engage in unconscionable conduct

Mr Bo’s claim under the Contracts Review Act

Plaintiff’s alternate claims

Conventional Estoppel

Costi Cohen’s Claim in Quantum Meruit

Conclusion

Endnotes

Parties

Legislation Cited (4)

Cases Cited (29)

Cited By (1)