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[2026] NSWCA 127
mixed. The appeal had previously been allowed in part. In this consequential-orders judgment, the Court ordered Colliers to pay $110,489.65 for the Westfield commission and pre-judgment interest, plus...
Hudson won only on commission for the Westfield lease. The Court fixed that commission at $80,000 and added pre- and post-judgment interest. It also required Colliers to pay a separate $36,780.24 if Hudson undertook not to use the earlier cheque. Hudson’s recovery was much smaller than the overall claim, so he remained liable for part of Colliers’ costs. The Court reduced his first-instance costs liability compared with the primary judge’s order, rejected a Bullock order for Mr Bate’s costs, and ordered Hudson to pay half of Colliers’ appeal costs.
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2,367 words · generated 07/10/2026
This judgment is a consequential-orders decision following the Court of Appeal’s earlier decision in Hudson v Colliers International (NSW) Pty Ltd [2026] NSWCA 88, which the judgment calls “CA1”. In CA1, Hudson succeeded only on his claim for commission relating to the Westfield lease. The Court had set aside the District Court order dismissing his claim, but left the amount payable, interest and costs for later determination ([1]-[3]).
4 cited instruments linked from this judgment.
The parties did not agree on final orders and filed further written submissions and evidence. The Court dealt with the remaining issues on the papers ([4]-[8]). The issues were the commission amount, interest, first-instance costs, whether a Bullock order should make Colliers bear Mr Bate’s costs, and appeal costs ([7]).
Hudson’s original further amended statement of claim sought $296,648 in commission, along with consequential damages and interest ([9]). During the litigation, Colliers had also offered him a cheque for $36,780.24 for other commission, which he declined because he wanted assurance that accepting it would not be treated as settling the wider dispute ([10]). In the appeal, Hudson succeeded on one deal only. In the consequential submissions, he sought commission figures of $413,958.31 or $321,937.48. The Court treated those figures as an attempt to make a different case, rather than as a permitted calculation of the Westfield award ([12]-[13]).
The final orders required Colliers to pay $110,489.65 for the Westfield commission and pre-judgment interest. Colliers was also ordered to pay $9,832.52 post-judgment interest. The separate $36,780.24 was payable only if Hudson gave a written undertaking, within seven days, not to present, transfer or otherwise use the earlier cheque. Hudson was ordered to pay 60% of Colliers’ District Court costs and 50% of its appeal costs ([35]).
The commission calculation turned partly on the contractual thresholds. The judgment explains that Hudson’s commission rate was 40% for revenue between $450,000 and $600,000, and 50% for revenue above $600,000, with the thresholds apparently resetting each year ([9]). Colliers had received $200,000 from the Westfield deal, paid in two tranches. The available evidence suggested those tranches were invoiced and paid in different years, 2018 and 2019 ([15]).
That evidence raised a difficulty for Hudson. The Court noted it appeared arguable that, if the relevant annual revenue did not reach $450,000, no commission would be payable. Colliers did not advance that argument, however, and the Court did not decide it ([16]). The judgment also identifies possible complexities in when revenue should be attributed to an employee under Colliers’ commission policy. Those matters were not explored by either side ([17]).
The Court’s central evidentiary point was that Hudson bore the burden of proving his entitlement. Colliers accepted that $80,000 was payable, while Hudson did not persuasively explain why the Court should order more. Given the limited and unsatisfactory state of the evidence and submissions, the Court was not persuaded to exceed the $80,000 amount advanced by Colliers ([14]-[18]). This was a case-specific assessment, not a general ruling about how every commission policy must be construed.
The Court dealt separately with the $36,780.24. Colliers had sent a cheque years earlier, and its counsel had indicated during the appeal hearing that the amount remained payable. The Court considered it appropriate to resolve the matter in the same proceeding, referring to Supreme Court Act 1970 (NSW) s 63 and the avoidance of multiple proceedings ([20]-[22]). To protect Colliers against the possibility that Hudson might use the old cheque as well as receive payment under the order, the Court made payment conditional on an undertaking not to use it ([22]).
The Court did not allow court-rate interest on the $36,780.24. Its reason was that Colliers had offered the amount four years earlier and Hudson had declined it. The Court also rejected the suggestion that accepting an undisputed payment would, by itself, amount to an admission that no further commission was owed ([22]).
For interest on the Westfield commission, the Court proceeded on the basis that Colliers received the two tranches on 2 November 2018 and 21 June 2019, while acknowledging that the evidence was unclear and that an affidavit contradicted itself ([24]). Allowing 28 days for payment, it selected 25 March 2019 as a simplified start date for interest on the entire $80,000. It calculated $30,489.65 in pre-judgment interest and $9,832.52 in post-judgment interest ([24]-[25]).
Costs reflected the gap between Hudson’s overall claim and the result. He claimed $296,648 in commission and, as described by the Court, consequential damages of about $250,000 to $350,000. He recovered less than $120,000 in commission overall, and only $80,000 had been genuinely disputed in relation to the successful Westfield issue. He had also failed on a misleading-conduct claim that he did not pursue on appeal ([29]). The Court adopted a broad-brush approach rather than attempting false mathematical precision, and assessed Colliers as having about 80% success on the issues at first instance. Its net costs order required Hudson to pay 60% of Colliers’ costs ([28]-[31]).
The judgment does not purport to change a general rule of contract or costs law. It applies existing procedural and costs principles to the consequences of Hudson’s partial success.
Before this judgment, CA1 had established that Hudson succeeded on the Westfield lease but had not fixed the final sum, interest or costs ([2]-[3]). The District Court had dismissed the claim and made a costs order against Hudson. The Court of Appeal then had to translate the success on one claim into final monetary and costs orders.
For costs, the Court quoted the approach set out in DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258. The quoted passage explains that costs remain discretionary, that costs ordinarily follow the event, and that an issue-by-issue approach may be appropriate when it produces a fairer result. It also cautions against seeking mathematical precision ([28]). The Court applied that broad approach to Hudson’s mixed success, claim size and failed issues, rather than treating success on the Westfield issue as automatically determining all costs ([29]-[31]).
The judgment also addresses the relevance of a settlement offer to costs. The primary judge had ordered indemnity costs after 30 August 2023, reasoning that Hudson had unreasonably refused Colliers’ offer ([26]). The Court of Appeal reassessed that premise in light of the actual outcome. Because the offer made no allowance for the additional $36,780.24, and Hudson obtained that amount as part of the final result, the Court held that refusal was not unreasonable ([27]). The catchwords also characterise the offer as a purported offer of compromise dependent on a deed of release and as inconsistent with the meaning of an offer of compromise under the UCPR. The operative reasoning in the body of this judgment focuses particularly on the omitted $36,780.24.
As to Mr Bate, the Court did not reconsider the merits of the first-instance costs order against him. The further amended notice of appeal raised no issue against him, and he was no longer listed as a party to that appeal. The Court therefore held that the order could not be challenged in these proceedings ([32]). It separately declined to make a Bullock order, emphasising the absence of genuine uncertainty about the appropriate defendant and the absence of any suggested concern about Colliers’ solvency ([33]).
At [13], the Court said: “Such an attempt to reformulate his case cannot be permitted.” In context, this concerned Hudson’s later commission figures, which were higher than the amount in his pleading and depended on a new historical analysis. The Court allowed recovery for the successful Westfield claim but would not use consequential submissions to introduce a materially different claim.
At [18], the Court said: “Mr Hudson bears the burden of proof and persuasion in establishing his entitlement to commission.” In plain English, Hudson had to establish the amount he said Colliers owed. The Court was not satisfied on the evidence and submissions that more than the $80,000 Colliers accepted should be ordered.
At [22], the Court explained that Colliers was entitled to certainty that Hudson would not use the old cheque if he still had it. The resulting order made payment conditional on a written undertaking. The Court also distinguished the separate interest question: it declined court-rate interest on the $36,780.24 because the amount had been offered years earlier and refused.
At [27], the Court said it was “not unreasonable” for Hudson to refuse the 2023 offer because it did not include the additional $36,780.24. In plain terms, the offer did not provide for all of the amount the Court ultimately ordered Colliers to pay. That conclusion altered the costs analysis that had followed from the primary judge’s view of the offer.
At [31], the Court assessed Colliers as having about 80% success and ordered Hudson to pay 60% of its first-instance costs. This was a broad-brush assessment of the overall litigation, not a precise calculation of each party’s success on every issue.
At [33], the Court rejected a Bullock order because there was no genuine uncertainty about which defendant was appropriate and no question about Colliers’ solvency. It also noted that overlap between the defendants’ representation and issues could be considered at costs assessment.
There is an apparent date inconsistency in [25]. The paragraph says post-judgment interest was calculated “from 8 August 2026 up to 7 July 2026”, which places the stated start date after the stated end date. The orders and surrounding text refer to the judgment below being made on 8 August 2025 and the post-judgment period running from 8 August 2025 to 7 July 2026 ([25], [35]). This deep dive reports the inconsistency in the supplied judgment text rather than silently correcting it.
The decision is most directly relevant to a case where an appeal succeeds on one part of a larger claim and the court must then settle the monetary and costs consequences. Here, success concerned one of three commission disputes, while the appellant had claimed substantially more commission and consequential damages ([1], [9], [11]-[13], [29]).
It is also relevant where a party seeks to use later submissions to recalculate or materially expand the case after the merits appeal has been decided. The Court treated the proposed figures as a different case and declined to permit that reformulation ([12]-[13]). The judgment does not establish that every later calculation is impermissible; its reasoning depends on the difference between the pleaded and appellate case and the new historical analysis proposed.
The interest discussion is pertinent where payment dates are uncertain, where revenue arrives in tranches, and where the court must select a practical calculation date on the evidence available. The Court acknowledged evidentiary uncertainty, stated the dates it would assume, allowed 28 days for payment, and selected a mid-point date for simplicity ([24]-[25]).
The costs discussion may be relevant where overall success is mixed, a settlement offer is said to justify indemnity costs, or a successful party obtained an amount omitted from the offer. It also illustrates that the content of an offer and the actual judgment result can matter to the costs assessment ([26]-[31]). The Bullock-order discussion concerns cases where one defendant’s costs are sought from another defendant, particularly where there is no genuine uncertainty about the proper defendant and no issue about the paying party’s solvency ([33]).
The supplied judgment contains no decisions by later courts applying or distinguishing Hudson (No 2). It was delivered on 8 July 2026, and the material provided identifies no subsequent treatment. It would therefore be unsupported to describe any later judicial reception.
The judgment itself relies on or refers to earlier authorities. It cites Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 in its discussion of compliant, readable submissions and the purposes of page, font and spacing requirements ([4]-[5]). It draws on DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258 for the broad principles governing costs discretion and issue-based assessment ([28]). It refers to Maestrale v Aspite (No 2) [2014] NSWCA 302 in relation to pre-judgment interest ([25]), and to Roads and Traffic Authority of New South Wales v Palmer (No 2) [2005] NSWCA 140 in considering the requested Bullock order ([33]). These are authorities used by this Court, not evidence of how later courts treated this judgment.
The Court expressly left unresolved how Colliers’ commission policy attributed revenue to an employee for the purpose of calculating commission. It noted possible complexities about when revenue was attributed, but neither party explored them ([17]). It also identified the possible significance of annual revenue thresholds, while recording that Colliers did not rely on an argument that the relevant annual revenue might fall below the threshold ([16]-[17]). The judgment therefore does not settle the interpretation of those policy provisions for other circumstances.
The evidence about receipt of the two Westfield tranches was not entirely clear, and the affidavit addressing the matter was described as contradictory. The Court proceeded on the basis of the dates suggested by payment receipts and used a simplified interest start date ([24]). The supplied text does not resolve how a different evidentiary record, or a more precise contractual rule about payment timing, would affect the calculation.
The apparent inconsistency in [25] between “8 August 2026” and “7 July 2026” remains a textual issue in the material provided. The orders specify the post-judgment period as 8 August 2025 to 7 July 2026 and state the amount as $9,832.52 ([35]). The judgment text supplied does not explain the discrepancy in the earlier paragraph.
Finally, the Court did not decide how overlap in representation or issues between Colliers and Mr Bate should affect the costs ultimately assessed. It said those matters could be addressed at the assessment stage ([33]). Nor does this judgment determine whether a differently framed offer, one covering the full claim ultimately established or satisfying the applicable procedural requirements, would have had a different costs consequence.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Hudson v Colliers International (NSW) Pty Ltd (No 2) [2026] NSWCA 127
Hearing dates: On the papers
Date of orders: 8 July 2026
Decision date: 08 July 2026
Before: Bell CJ; Ward P; Kirk JA at [1]
Decision: (1) In lieu of order 1 made by the primary judge on 8 August 2025, the first defendant is to pay the plaintiff $110,489.65.
(2) Order 1 made by the primary judge on 5 December 2025 is set aside, and in lieu thereof the plaintiff is to pay 60% of the first defendant’s costs of the proceedings in the District Court.
(3) If the appellant provides the first respondent (Colliers) a written undertaking within 7 days of these orders that he will not take any steps to present, transfer or otherwise make use of the cheque previously provided to him by Colliers in the amount of $36,780.24, then Colliers is to pay the appellant that amount.
(4) Colliers is to pay the appellant post-judgment interest for the period from 8 August 2025 to 7 July 2026 of $9832.52.
(5) The appellant is to pay 50% of Colliers’ costs in this Court.
Catchwords: CONTRACTS – Construction – calculation of damages pursuant to Court’s earlier determination of liability – calculation of pre and post judgment interest
CIVIL PROCEDURE – Court of Appeal – submissions did not comply with page limit and used impermissibly small font
CIVIL PROCEDURE – Court of Appeal – Costs orders – costs awarded in court below – appeal successful in part – purported offer of compromise in evidence – offer dependent upon parties negotiating deed of release – inconsistent with meaning of offer of compromise under UCPR – offer did not encompass successful component of claim – refusal of offer not unreasonable – proportion of appellant’s first instance costs liability reduced
CIVIL PROCEDURE – Court of Appeal – Costs orders – indemnity costs awarded in favour of second defendant at first instance – second defendant not party to appeal – not open to challenge first instance costs order
CIVIL PROCEDURE – Court of Appeal – Costs orders – Bullock order sought by appellant – utility of second defendant’s inclusion in first instance proceedings unclear – no uncertainty as to appropriate defendant – no question of insolvency of first defendant – no Bullock order warranted
Legislation Cited: Civil Procedure Act 2005 (NSW) ss 100, 101
Supreme Court Act 1970 (NSW) s 63
Uniform Civil Procedure Rules (NSW) rr 36.7 51.36(1)
Cases Cited: DSHE Holdings Ltd (Receivers and Managers) (in liq) v Potts (No 2) [2022] NSWCA 258
Hudson v Colliers International (NSW) Pty Ltd [2026] NSWCA 88
Maestrale v Aspite (No 2) [2014] NSWCA 302
Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235
Roads and Traffic Authority of New South Wales v Palmer (No 2) [2005] NSWCA 140
Category: Consequential orders
Parties: Matthew Robert Hudson (Appellant)
Colliers International (NSW) Pty Ltd (First Respondent)
Michael Bate (Second Respondent)
Representation: Counsel:
M Minucci and S Dewis (First Respondent)
Solicitors:
Green & Associates (Appellant)
Kingston Reid (First Respondent)
File Number(s): 2025/347991
Publication restriction: Nil
THE COURT: On 20 May 2026 we handed down our decision resolving the appeal in this matter: Hudson v Colliers International (NSW) Pty Ltd [2026] NSWCA 88 (CA1). The appeal concerned a contractual claim by Mr Hudson, the appellant, for payment of commission by Colliers International (NSW) Pty Ltd, the first respondent, with respect to three real estate leasing deals which Mr Hudson had played a role in negotiating (the three deals are identified at CA1 [5]). At first instance, in the District Court, Mr Hudson had failed in claiming commission with respect to all three deals. He had also brought unsuccessful claims for misleading and deceptive conduct against Colliers and Mr Michael Bate, who had been Mr Hudson’s supervisor. Those misleading conduct claims were not pursued on appeal.
In this Court Mr Hudson succeeded in relation to one of the three deals that remained at issue. At the end of the judgment of Kirk JA, with whom the other two members of the Court agreed, the following was said:
[79] ... Mr Hudson has succeeded only in relation to his claim for commission with respect to the Westfield Lease. The appeal must be upheld to that extent. Order 1 made by the primary judge on 8 August 2025, dismissing Mr Hudson’s claim, should be set aside. What orders should be made in its place involves consideration of Mr Hudson’s claim for interest. The primary judge also gave a separate judgment on 5 December 2025 addressing costs. Whether those costs orders should be set aside and replaced by alternative orders remains to be determined. The respondents sought to be heard separately on costs.
[80] The parties should seek to reach agreement on these and any other remaining matters. The orders will provide for exchange of materials to the extent agreement is not reached. Any remaining disputes will be determined on the papers, unless some good reason to the contrary is provided by either side.
(1) Extend time for the filing of the notice of appeal to 10 September 2025.
(2) Appeal allowed in part.
(3) Set aside order 1 made in the District Court on 8 August 2025.
(4) The parties are to notify the Court of any agreement reached with respect to final orders by 27 May 2026.
(5) To the extent that agreement is not reached on final orders:
(a) the parties may file and serve written submissions of no more than 4 pages on what orders should be made (including as to costs), along with any evidence in support, by 1 June 2026;
(b) the parties may file and serve written submissions of no more than 2 pages in reply, along with any further evidence in support, by 3 June 2026.
To point this out is not to be pedantic or to invoke a technicality. The imposition of a page limit [or specifications as to font size and line spacing] is consistent with the need for judicial resources to be deployed efficiently, the issues to be identified crisply, and the costs of litigation (including the costs of other parties to litigation who must respond to submissions) to be proportionate: see Civil Procedure Act 2005 (NSW) s 60.
Second, one purpose of rule 51.36(1) is to ensure fairness between the parties in terms of the length of their written submissions. Deliberate non-compliance with the rule therefore entails not only a flagrant breach of the rule but an illegitimate attempt to gain an unfair advantage over an opponent. Third, physically compressed submissions such as those that were made on Mr. Hudson’s behalf detract from their readability.
The parties did not seek an oral hearing.
The following issues arise:
identification of the commission to be paid (in relation to which there are three disputes);
interest;
costs at first instance (including whether the Court should make a Bullock order such that Colliers bears the costs of Mr Bate);
costs on appeal.
In addressing these issues we assume familiarity with CA1.
In his further amended statement of claim (FASOC), Mr Hudson claimed commission in the amount of $296,648.00, along with consequential damages for loss of the chance to invest that sum in purchasing a residential property in Paddington, and interest. That commission amount claimed was the number identified at the end of Sch 3A to the Deed of Release. It was calculated on an assumption that all the revenue identified had been or would be paid to Colliers, and that had or would be invoiced and/or paid in the one calendar year. The timing issue was relevant because Mr Hudson’s contractual entitlement to commission on relevant deals was set at 40% for revenue in the range $450,000 to $600,000, and 50% for revenue above that, where by implication those thresholds reset each year (see CA1 [11]-[12]).
In his primary written submissions in the appeal, Mr Hudson explained that by the time of the hearing below “there were only three material invoices that were disputed”. Those three deals were also the focus of the dispute on appeal. Aside from those deals, Colliers had acknowledged some years before the hearing below that it owed Mr Hudson a further $36,780.24 in commission for revenue received after the Deed had been entered. As the primary judge explained in her judgment:
[90] Colliers wrote to him again on 30 March 2022, advising that they had reviewed the commission to which they contend he was entitled and realised that they owed him a further $36,780.24 which included an allowance for interest. Mr Hudson refused to accept the cheque without a guarantee that it would not be treated as settlement of the dispute. Colliers reply was not acceptable to Mr Hudson, and he refused to accept payment.
On appeal Mr Hudson succeeded in making out his claim only with respect to one of the three disputed deals, being for the Westfield lease. Colliers received $200,000 revenue on that deal. Assuming that Mr Hudson was entitled to payment of commission on that revenue, he would therefore be entitled to payment of at most $100,000 (ie if it was all treated as commission attributed to Mr Hudson in a calendar year in which $600,000 other revenue had already been attributed to him).
Yet in Mr Hudson’s submissions filed pursuant to our orders, he now seeks payment of $413,958.31, or alternatively $321,937.48, in commission (prior to interest). Both variants are higher than what he claimed in his FASOC. It is difficult to understand precisely how he has come to these numbers. What is clear, however, is that this represents an attempt to make quite a different case to the one propounded in the Court below or on appeal. Mr Hudson implicitly admitted as much in saying this in his supplementary submissions in reply:
No clear, definitive, or conclusive evidence was put to the Court to enable a straightforward quantification. Rather, the Appellant and the Court are both left with no option but an arduous process of analytical deduction. That is primarily because of the omission and conflicts apparent when comparing the commission statements contained in the affidavit evidence of the Appellant vis-à-vis that of the Second Defendant below. Consequently, there was no option left for the Appellant other than undertaking a historical analysis of the materials before the Court.
Colliers has submitted that it should be ordered to pay $80,000 commission with respect to the $200,000 Westfield revenue which this Court held was attributable to Mr Hudson. That submission assumed that commission should be paid at the rate of 40% rather than 50%. Colliers did not explain why that rate should be applied. Mr Hudson’s supplementary submissions in reply did not grapple with the issue, beyond asserting that that amount was erroneous because it ignored the basis for his much larger claim (which we have rejected above).
The Westfield revenue was paid in two tranches of $100,000 (plus GST). In light of the evidence now before the Court, it seems that the invoice for the first tranche was issued on 30 April 2018 and was paid on 2 November 2018, and the invoice for the second was issued sometime in December 2018 and was paid on 21 June 2019 (although the evidence as to payment is somewhat unclear – see further below at [24]). Those amounts were thus invoiced and paid in distinct years after 2016, when the Deed was entered. There was no evidence that any other commission was invoiced or payable in those years, let alone on revenue exceeding $600,000. Colliers’ general counsel, Mr Robert Wall, swore an affidavit in support of Colliers’ supplementary submissions in which he indicated that the total revenue allocated to Mr Hudson as at 9 August 2016 was $504,551.79, and that if Mr Hudson had remained employed with Colliers then the Westfield deal revenue would have been allocated to him in the amounts of $100,000 for each of the 2018 and 2019 calendar years.
As was pointed out to the parties at the hearing – prior to Mr Wall’s evidence, but supported by it – it appeared arguable that Mr Hudson had no entitlement to commission on the Westfield deal in these circumstances, as attributable revenue in the relevant year or years would not have reached $450,000. However, Colliers accepted that no such point had been taken by it in the proceedings, and it did not seek to rely on that point.
As regards this commission, as noted above the most that could be payable is $100,000, if the 50% rate was applied to the whole amount of $200,000. On the evidence of Mr Wall, even if both tranches were attributed to Mr Hudson in 2016 then about half of it would be subject to commission at 40% and about half at the rate of 50%. If it was allocated when in fact it was received, then it seems no commission would be payable. However, as explained, Colliers does not seek that result. We also note that there are some potential complexities in how Colliers’ commission policy is to be interpreted with respect to precisely when revenue is attributed to an employee for the purposes of payment of commission. These issues and complexities were not explored by the parties.
Mr Hudson bears the burden of proof and persuasion in establishing his entitlement to commission. In the rather unsatisfactory circumstances outlined, we are not persuaded that Colliers should be ordered to pay more than what it has identified as payable in light of our earlier judgment, namely $80,000.
As noted, in 2022 Colliers sent Mr Hudson a cheque for $36,780.24 for commission owed to Mr Hudson with respect to further amounts paid to it in relation to revenue attributable to him. Mr Hudson declined to bank the cheque. He now seeks an order for payment of that amount. Colliers resisted such an order being made on the basis that he had “received a cheque” for that amount. In response, Mr Hudson submitted that he “is not in possession of such a cheque” (though no evidence was identified in support of that claim) and “it is common knowledge that most cheques expire after a period of 6-12 months”.
The position now taken by Colliers is somewhat at odds with what was said on its behalf in the course of the hearing of the appeal, in which it appeared to accept that it could and should take steps to complete the payment of that amount:
MINUCCI: No. If we win on everything as we understand it, we have paid everything. Your Honour may have seen in the evidence that a cheque was mailed to the appellant in respect of the balance of what we say was the commission payment owing to him. That we say was the ultimate amount that discharged our obligation in respect of the commission payments, on our argument. So if we win there are no further payments to make.
KIRK JA: But it wasn't cashed.
MINUCCI: It hasn’t been cashed yet, but certainly there's nothing to suggest
KIRK JA: It'd be out of date now, wouldn't it?
MINUCCI: Yes, I don't have an update, but certainly I'm happy to either engage with my learned friend or provide an indication to the bench in due course about that, but we wouldn’t be resiling from the fact that that cheque was something
KIRK JA: Still oweable.
MINUCCI: Still able to be cashed and to be used because we submit that that's an appropriate amount.
A claim for this amount seemingly was implicit in Mr Hudson’s FASOC, as being encompassed by the total amount that he claimed. Further, it is appropriate that all matters in controversy between the parties “be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided”: Supreme Court Act 1970 (NSW), s 63. This Court should make an order addressing the issue, subject to two points.
First, Colliers is entitled to certainty that Mr Hudson will not seek to make any use of the cheque, if he still has it. That certainty can be provided by conditioning the relevant order on Mr Hudson providing an undertaking to that effect. Second, given that this amount was offered to him four years ago and he declined to accept it, it would not be just for him to receive interest at court rates on that sum pursuant to ss 100 and 101 of the Civil Procedure Act 2005 (NSW). He argued that it was not unreasonable for him to have refused payment when Colliers did not concede that it would not argue that this was a “concession”. But banking a cheque with respect to an undisputed entitlement could not, of itself, constitute some admission by Mr Hudson that he did not have further entitlements.
Mr Hudson sought interest on the outstanding commission. Colliers accepted that it should pay interest in relation to the commission on the Westfield deal, and implicitly accepted that that should be calculated on court rates. Neither side offered any real assistance as to the calculation of interest.
As to when the liability to pay interest should commence, during the hearing of the appeal counsel for Mr Hudson indicated that interest should run from a short time after the two payments were received by Colliers. The evidence on that issue is not entirely clear. It was addressed in Mr Wall’s affidavit of 12 June 2026 but in terms in which he contradicts himself. However, he has provided payment receipts suggesting payment of the two tranches was received on 2 November 2018 and 21 June 2019, and we will proceed on the basis that those are the correct dates. Allowing say 28 days for payment to Mr Hudson, interest should then run from 30 November 2018 and 19 July 2019. The mid-point of those dates is 25 March 2019. For simplicity of calculation, we will treat Mr Hudson’s entitlement to interest on the entire amount of his commission entitlement ($80,000) as commencing on that date.
The primary judge made orders dismissing Mr Hudson’s claim on 8 August 2025. Pre-judgment interest should run at court rates up to that date, when the court below should have ordered payment of commission on the Westfield deal: see Practice Note DC (Civil) No 15 – Pre-judgment interest rates; and note eg Maestrale v Aspite (No 2) [2014] NSWCA 302. That leads to an amount of $30,489.65. Post-judgment interest accrues thereafter at the higher rate identified in UCPR r 36.7. Calculated from 8 August 2026 up to 7 July 2026, it is $9832.52.
In a separate Costs Judgment delivered on 5 December 2025, the primary judge ordered that Mr Hudson pay Colliers’ costs of the proceedings below on the ordinary basis up to and including 30 August 2023, and thereafter on an indemnity basis. The general costs order reflected the fact that her Honour had dismissed Mr Hudson’s claim in whole. The indemnity part of the order reflected the fact that a letter containing a purported offer of compromise, alternatively characterised in the letter as a Calderbank offer, had been sent on Colliers’ behalf on 30 August 2023. It offered that the matter be resolved by setting aside an earlier costs order in favour of Colliers; dismissal of the proceedings with no order as to costs; and payment of the sum of $130,000 to Mr Hudson, such payment to be “subject to the execution of a deed of release by all parties, the terms of which will include confidentiality, non-disparagement and release in respect of any and all claims the subject of the Proceedings”. The payment was said to be made up of $80,000 in commission, $35,000 in interest and $15,000 in legal costs. Unsurprisingly, given her Honour’s conclusion that Mr Hudson’s claim had no merit, her Honour concluded that it was unreasonable for him not to have accepted the offer.
That premise no longer applies, given that this Court has held that Mr Hudson was entitled to payment of (in the result) commission of $80,000, plus the additional amount of $36,780.24. It was not unreasonable for Mr Hudson to refuse the offer given that it made no allowance for the additional amount of $36,780.24. He will obtain an outcome more favourable than what was proposed in the offer. True, that amount had previously been proffered to and rejected by him. Nevertheless, it was encompassed by his claim and he was entitled to receive payment for it.
It is then necessary to consider what costs order should be made at first instance. In DSHE Holdings Ltd (Receivers and Managers) (in liq*) v Potts (No 2)* [2022] NSWCA 258 this Court explained:
[8] Costs are, of course, in the discretion of the Court: Civil Procedure Act 2005 (NSW), s 98(1). Rule 42.1 of the UCPR provides that, subject to the Rules, if the Court makes any order as to costs, the Court is to order that the costs “follow the event” unless it appears that some other order should be made as to the whole or any part of the costs. In Allianz Australia Insurance Ltd v Rawson Homes Pty Ltd (No 2) [2021] NSWCA 334, White JA stated at [16] (with the agreement of Meagher and Leeming JJA):
“Whether ‘the event’ should be characterised as the result of a particular issue or cause of action, or the overall result of the proceedings, may not be of practical significance once it is recognised that if a particular issue or group of issues is clearly dominant or separable, then it can be appropriate either to deny the successful party its costs in respect of particular issues on which it fails, or to require the otherwise successful party to pay the costs of that issue even though it did not act unreasonably in raising or defending the issues on which it failed. As Finkelstein and Gordon JJ recognised in Bowen Investments v Tabcorp Holdings (No 2) [2008] FCAFC 107 at [5], if an issue by issue approach produces a fairer result, then that approach should be adopted. Mathematical precision is illusory (James v Surf Road Nominees Pty Ltd (No 2) [2005] NSWCA 296 at [36]).”
[9] Put simply, in this case the Court should seek to make an order that is fair in all the circumstances, taking account of the extent to which issues are separable, and without aspiring to the false hope of mathematical precision.
Mr Hudson claimed the amount of $296,648.00 in commission, along with consequential damages said in this Court to be in the order of $250,000 to $350,000. In the result he has been awarded total commission of under $120,000, of which only $80,000 was really in dispute, together with interest at court rates. Mr Hudson also made a misleading conduct claim against Colliers (and Mr Bate) which was dismissed below and not re-agitated on appeal.
Mr Hudson made some complaints about how Colliers had conducted the litigation below, but none of those warrants making some special order separate from an assessment of success on the substantive issues in dispute.
On a broad brush approach it can be said that Colliers had about 80% success on the issues in dispute at first instance. Taking the costs of both parties together, and making an order on a net basis, the appropriate order then is that Mr Hudson pay 60% of Colliers’ costs at first instance.
The orders of the Court are as follows:
In lieu of order 1 made by the primary judge on 8 August 2025, the first defendant is to pay the plaintiff $110,489.65.
Order 1 made by the primary judge on 5 December 2025 is set aside, and in lieu thereof the plaintiff is to pay 60% of the first defendant’s costs of the proceedings in the District Court.
If the appellant provides the first respondent (Colliers) a written undertaking within 7 days of these orders that he will not take any steps to present, transfer or otherwise make use of the cheque previously provided to him by Colliers in the amount of $36,780.24, then Colliers is to pay the appellant that amount.
Colliers is to pay the appellant post-judgment interest for the period from 8 August 2025 to 7 July 2026 of $9832.52.
The appellant is to pay 50% of Colliers’ costs in this Court.
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Hudson
Colliers International (NSW) Pty Ltd (No 2)
The appeal had previously been allowed in part. In this consequential-orders judgment, the Court ordered Colliers to pay $110,489.65 for the Westfield commission and pre-judgment interest, plus $9,832.52 post-judgment interest. Colliers must also pay the separate $36,780.24 if Hudson provides the specified undertaking within seven days. Hudson must pay 60% of Colliers’ District Court costs and 50% of its appeal costs. The challenge to Mr Bate’s costs order was not open and no Bullock order was made ([35]).