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[2026] NSWCA 88
mixed. Time to file the notice of appeal was extended to 10 September 2025. The appeal was allowed in part and the District Court's order 1 of 8 August 2025 was set aside. The parties were directed to notify...
The Court of Appeal held that the Deed did not guarantee payment of every scheduled commission figure regardless of whether Colliers received money from the client. The Policy's payment condition continued to apply. Mr Hudson succeeded on the Westfield commission because he introduced the parties who eventually entered the lease and Colliers received the agreed fee. He failed on the Circular Quay claim because the client paid a reduced amount, and on the Sumo Salad claim because he did not prove that Colliers invoiced or received payment for that transaction. His consequential-loss evidence assumed a much larger and earlier commission payment than the Court found could be established. The appeal was therefore allowed only in part, with final orders and costs left to be settled or determined later.
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Matthew Hudson worked as a real estate agent for Colliers International (NSW) Pty Ltd from October 2013. He was promoted to Associate Director, Retail Leasing in February 2016, with remuneration comprising salary and commission [3]. In June 2016, after media interest in a video of a party he had held the previous year, Hudson and Colliers agreed to part ways. Their agreement was recorded in a Deed of Release dated 22 June 2016 [4].
The Deed dealt with post-employment payments, including commission. Its schedule identified revenue attributed to Hudson and listed certain potential commission transactions. The dispute concerned three deals: a Circular Quay lease, a Westfield Sydney rooftop lease, and a putative “Sumo Salad” lease at St Collins Lane in Melbourne [5], [16]–[19].
At Circular Quay, Colliers had invoiced Newcastle Port for $802,999.01, including GST. After the client challenged the fee and an investigation was initiated, Colliers agreed to reduce the fee to $495,000, including GST. The original invoice was cancelled, a new invoice was issued, and the reduced invoice was paid in July 2016 [21]–[23]. Hudson said commission should still be calculated on the original amount.
At Westfield, Hudson introduced Scentre to the Mantle Group as a possible tenant shortly before leaving Colliers. Negotiations broke down, but the same parties resumed negotiations about 18 months later and completed a lease. Colliers invoiced $200,000 in two instalments, paid in 2018 and 2019 [54]–[56].
The Sumo Salad issue concerned a possible separate tenancy at St Collins Lane. The schedules listed a potential commission for “St Collins Lane” with Sumo Salad as debtor. There was some evidence of a proposed tenancy distinct from an earlier Los Vida lease, but the record did not establish that an invoice had been issued or paid for the putative Sumo Salad transaction [61]–[65].
Hudson also sought consequential damages. He said that timely payment of disputed commission would have enabled him to buy a more expensive Paddington home in 2016 [75]. The District Court dismissed his claims. On appeal he pressed three grounds, concerning the Deed, commission entitlement, and consequential loss [7]–[10]. Kirk JA gave the principal reasons, with Bell CJ and Ward P agreeing [1]–[3].
The Court of Appeal extended time for the notice of appeal, allowed the appeal in part, and set aside the order dismissing Hudson's claim. The remaining question of final orders, including interest and costs, was left for further submissions or agreement [79]–[81].
The first question was what cl 1(a)(iii) of the Deed did to the Policy. Hudson argued, in substance, that the Deed fixed the commission amounts recorded in the schedules, so Colliers had to pay those amounts without applying the Policy's client-payment condition. Kirk JA rejected that construction [27]–[29], [35].
The Court read the clause as a whole. Its first sentence promised payment of commissions Hudson “would be entitled to receive pursuant to” the Policy. Its second sentence identified commissions in Sch 3 and made two express variations: it displaced Policy cl 1.7.2 for specified potential commissions, and excluded late-payment reductions for two identified arrangements [36]–[40]. The third sentence expressly confirmed that the Policy applied to the potential commissions in Sch 3B [43].
The distinction that resolved the Circular Quay issue was between identifying and calculating the commission, on one hand, and deciding when it became payable, on the other. The Deed and schedules fixed which deals and attributed revenue were covered, avoiding later disagreement about those matters. But Policy cl 2.1.2 said that commission became payable when the client had paid the invoice in full [45]–[46]. The express treatment of late-payment reductions for two invoices supported the conclusion that the Policy otherwise continued to operate [39]–[42]. The client did not pay the original Circular Quay invoice in full; it paid the agreed reduced amount. The Court therefore rejected Ground 1 [51].
Westfield was different. The primary judge had treated the completed lease as a different transaction because negotiations had broken down and restarted after a delay [57]. The Court of Appeal held that this was not a sound distinction from Colliers' perspective. Hudson had introduced the same two parties, Scentre and Mantle, and Colliers' entitlement to its fee rested on that introduction. Colliers was not itself responsible for the parties' negotiations [58]. The scheduled $200,000 matched the fee cap and the amount invoiced and ultimately paid. As a result, the Policy's payment condition was satisfied, and Hudson was entitled to commission on the attributed revenue [59]–[60].
The Sumo Salad claim failed for a different reason: proof. The Court accepted that the proposed tenancy appeared distinct from the earlier Los Vida tenancy. The schedules contained separate entries, and the evidence indicated different shop numbers and a different prospective trader [63]–[64]. But those facts did not prove the essential payment condition. There was no evidence that Colliers had issued an invoice for the putative transaction, or that it had been paid [65].
Hudson relied on Blatch v Archer, arguing that Colliers had the evidence about invoicing and payment. The Court explained that the principle does not transfer the legal burden of proof. It may affect how a fact-finder evaluates evidence, but the civil standard still requires “an actual persuasion” or “reasonable satisfaction” about the facts claimed [66]–[68]. Here Hudson had issued a notice to produce, documents were produced, and he did not challenge the adequacy of that production. In those circumstances, the absence of documents identifying a Sumo Salad transaction supported the view that the relevant invoice or payment had not been established [72]–[74].
Finally, the consequential-loss claim depended on an assumed commission total of $296,648 and payment within about two months of the Deed [75]. The Court's findings made that premise untenable. The Circular Quay amount was reduced, no Sumo Salad commission was proved, and the Westfield commission was not payable until years later, after invoices were paid in 2018 and 2019 [77]. Hudson's evidence did not address what he would have done with the materially different amount potentially available in 2016. The Court would not supply that missing evidence by speculation [78]. It therefore did not need to decide whether the claimed loss was too remote.
The judgment presents the commission dispute as an application of established principles, not as a statutory change or a stated departure from earlier law. No legislation was cited. On contract construction, Kirk JA referred to the approach of reading a commercial agreement through its text, context and purpose [25]. The decision applies that approach to a deed that reaffirmed an existing commission policy while making specific exceptions.
The practical clarification is how the deed's scheduled figures were understood. They identified deals and allocated revenue, but did not themselves establish that payment was immediately due. The Policy separately governed the point at which commission became payable. In particular, payment by the client remained a condition, subject to the Deed's express variations [35]–[46]. The decision therefore distinguishes fixing the basis of a commission calculation from satisfying the contractual precondition for payment.
On proof, the Court drew together established principles about onus and evidential reasoning. Blatch v Archer was not treated as a free-standing mechanism for shifting the burden to the party better placed to produce evidence [66]–[68], [72]. The Court also discussed Jones v Dunkel as a principle of judicial reasoning that can affect the drawing of inferences, not as a rule changing the burden of proof [69]. It referred to other established reasoning principles concerning causal contributors to harm and the facilitation of proof where a defendant's breach creates difficulty or impossibility of proof [70]–[71]. Those principles were not applied to change the outcome on the Sumo Salad claim: the Court considered that evidence could have been sought and that production had not been challenged as inadequate [73]–[74].
The judgment does not purport to establish a new general rule that missing documents always prove that an event did not occur. Its statement at [73] is expressly tied to evidence held by one party, a request for production through compulsory process, and no challenge to the adequacy of the production. The reasoning should be read within those stated circumstances.
Nor does the judgment decide the boundaries of the Policy where a client pays nearly, but not entirely, the invoiced amount. Kirk JA expressly left open the example of a client paying one dollar less than the invoice [50]. Similarly, the Court did not decide whether Colliers could cancel and replace an invoice in bad faith to affect commission, because no such allegation arose on the facts [49]. These reservations mark limits of the decision rather than settled answers.
At [35], Kirk JA said the Policy applied to commissions listed in the whole of Sch 3, subject to two express variations. In plain English, the Court did not treat the schedules as a promise to pay the listed numbers regardless of the rest of the commission arrangement. The Deed kept the Policy in operation except where it specifically changed it.
At [45], the Court explained that the schedules “record definitively” the deals and revenue to be attributed to Hudson. This meant that the parties had resolved which transactions and revenue figures were included for calculation purposes. It did not answer the separate question of when Colliers had to pay.
That distinction is made explicit at [46]: “agreement on the deals and revenue to be attributed is a distinct issue from whether or not Mr Hudson’s entitlement to be paid those commissions remained contingent on Colliers having received payment.” In ordinary terms, the Deed settled the calculation inputs, but the client still had to pay before the commission became payable, unless an express exception applied.
On Westfield, [58] rejects the idea that a long gap and a break in negotiations necessarily made the later lease a different transaction for Colliers. The relevant connection was that Hudson introduced the parties and Colliers' fee claim arose from that introduction. The judgment does not say that every deal completed after an employee leaves will earn commission. It rests on the particular agreement and evidence before the Court.
The evidential point appears at [68]: “to speak of a shifting ‘tactical’ burden or onus can be liable to cause confusion”. The Court's point is that the claimant keeps the legal burden of proving the claim. The fact that the other side may hold relevant evidence can matter to how evidence is assessed, but does not automatically make the other party responsible for disproving the claim.
At [73], the Court stated: “Where production of evidence held by one party has been sought by compulsive process, and the adequacy of production not challenged, the absence of evidence is evidence of absence.” In context, this meant the missing Sumo Salad invoice records counted against the proposition that Colliers had invoiced and been paid for that transaction. The reasoning depended on the production process and the lack of a challenge to its adequacy.
Finally, at [78], the Court said that finding a “middle position” on Hudson's loss would be speculation. The evidence addressed what he might have done if he had received all disputed commission promptly. It did not address the smaller amount potentially payable in 2016. The Court would not infer his response to that different scenario without evidence.
The contract-construction reasoning is relevant where a separation deed refers to an employee's existing commission policy and lists transactions or attributed revenue. The central question is whether the deed merely identifies the transactions and varies specific policy terms, or expressly replaces the policy's payment conditions. In this case, the Court relied on the language affirming Policy entitlements, the two stated exceptions, and the specific reference to the Policy in Sch 3B [35]–[46].
The Westfield reasoning concerns a commission arrangement based on introducing a client and prospective tenant, followed by a later lease between those same parties after negotiations have stopped and restarted. The Court treated the introduction as continuing to connect Hudson's work with Colliers' fee, because Colliers was not responsible for negotiating the lease and the same parties eventually completed it [54]–[60]. The decision's reasoning depends on the agency agreement, the basis on which Colliers claimed its fee, and the matching scheduled and paid revenue.
The Blatch v Archer discussion is relevant where a party argues that evidence held by the opponent should affect the assessment of proof. The Court's analysis directs attention to whether evidence was sought, what process was used, whether production was adequate, and whether any deficiency was challenged [72]–[74]. The case does not establish that the evidential principle itself transfers the burden of proof.
The consequential-loss reasoning concerns a claim that depends on receiving money at a particular time to pursue an investment or purchase opportunity. The claimant's evidence must correspond to the amount and timing that the court finds could actually have been payable. Here, evidence about receiving all commissions promptly did not establish what Hudson would have done with a smaller amount available in 2016 [75]–[78].
The judgment itself cites earlier authorities and explains how it uses them. It does not identify any later judicial treatment of Hudson v Colliers, which was decided on 20 May 2026. Accordingly, nothing in the supplied judgment establishes whether a later court has followed, distinguished or limited its reasoning.
The authorities considered by Kirk JA include Hellicar, Briginshaw, Jones v Dunkel, Kuhl, Ling, Watts, Purkess, Cessnock City Council and Ceerose. The Court used Hellicar to explain the limits of drawing conclusions from evidence that might have been called but was not [67]. Briginshaw was cited for the civil requirement of actual persuasion or reasonable satisfaction [68]. Jones v Dunkel and related authorities were discussed as principles that guide factual reasoning without changing the legal burden [69].
On proof of loss, the Court referred to Cessnock City Council and Financialstrategy.com.au for the proposition that the common law may facilitate a claimant's discharge of the burden where a defendant's breach creates difficulties or impossibilities of proof [71]. The Court did not find that principle assisted Hudson on the Sumo Salad evidence. It considered that he could readily have sought the relevant evidence and that the production process had not been challenged [73]–[74].
The supplied judgment provides no basis to describe any of these earlier cases as having later applied this decision. Nor does it provide a subsequent line of cases developing the decision's treatment of scheduled commission revenue, compulsory production, or missing documents. Any account of later treatment would require sources beyond the judgment text supplied here.
Several questions were expressly left undecided. First, the Court did not determine whether a client paying slightly less than the full invoice amount, such as one dollar less, would prevent commission becoming payable under the Policy's wording [50]. The Circular Quay facts involved a substantial negotiated reduction, not a trivial shortfall.
Second, the Court did not decide how the Policy and Deed would operate if Colliers had refused to pay any commission because the original invoice was cancelled and replaced, or if Colliers had reduced a client invoice in bad faith to diminish commission. Kirk JA noted that such a dispute could raise construction issues and potentially implied good-faith considerations, but those matters did not arise on the evidence or arguments in this appeal [49].
Third, the judgment does not settle when the absence of documents after a production request will support an inference that an event did not occur. The reasoning at [73] turns on the availability of compulsory process, actual production, and the absence of a challenge to adequacy. It leaves room for different reasoning where production is incomplete, the relevant records are not within the responding party's control, or the request does not reach the documents in question.
Fourth, the Court did not decide the remoteness issue in relation to consequential loss. It rejected the claim for want of evidence about the materially different amount potentially available in 2016, making it unnecessary to determine whether the claimed opportunity loss was within the parties' contemplation [76], [78].
Finally, the appeal judgment did not fix all final orders. The Court set aside the District Court's dismissal order but left the parties to address interest and costs, including whether the earlier costs orders should be replaced [79]–[81]. The supplied text records directions for agreement or further written submissions, not the ultimate final orders on those matters.
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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 [2026] NSWCA 88
Hearing dates: 29 April 2026
Date of orders: 20 May 2026
Decision date: 20 May 2026
Before: Bell CJ at [1];
Ward P at [2];
Kirk JA at [3]
Decision: (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.
Catchwords: CONTRACTS – Construction – appellant ceased employment as real estate agent – deed of release executed with respondent – deed established right to payment of commissions – construction of commission entitlements – employee commission policy reaffirmed in deed subject to express exceptions – commissions payable when policy preconditions satisfied
EVIDENCE – Burden of proof – no evidence of invoice to establish commission payable to appellant – argument that evidence within capacity of respondent to produce with reference to Blatch v Archer – principles of judicial reasoning – Blatch v Archer does not shift burden of proof – open to appellant to obtain discovery of invoice – notice to produce was issued by appellant – adequacy of production not subject of challenge – absence of evidence was evidence of absence – burden not discharged by appellant
CONTRACT – Remedies – Damages – damages sought for consequential loss – inadequate evidence of loss of opportunity
Legislation Cited: Nil
Cases Cited: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235
Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39; [2024] HCA 17
Financialstrategy.com.au Pty Ltd (in liq) v Bailey Roberts Group Pty Limited (in liq) [2026] NSWCA 74
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11
Ling v Pang [2023] NSWCA 112
Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81
Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34
Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1; [1946] HCA 48
The J & P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; [2023] NSWCA 117
Watts v Rake (1960) 108 CLR 158; [1960] HCA 58
Category: Principal judgment
Parties: Matthew Robert Hudson (Appellant)
Colliers International (NSW) Pty Ltd (First Respondent)
Michael Bate (Second Respondent)
Representation: Counsel:
T Bagley and B Millington (Appellant)
M Minucci and S Dewis (Respondents)
Solicitors:
Green & Associates (Appellant)
Kingston Reid (Respondents)
File Number(s): 2025/347991
Publication restriction: Nil
[This headnote is not to be read as part of the judgment]
Mr Hudson (the appellant) was a real estate professional employed by Colliers International (NSW) Pty Ltd (the respondent). His employment ceased in 2016, at which point the parties executed a deed of release (the Deed). Amongst other things, the Deed obliged Colliers to pay Mr Hudson certain amounts including with respect to commission. A dispute arose concerning commission payments Mr Hudson said he was owed under the Deed relating to three deals in which he had played a role as agent, being:
(1) a lease for a tenancy at the Overseas Passenger Terminal in Circular Quay;
(2) a lease in relation to a tenancy at the Westfield Sydney CBD rooftop; and
(3) a claimed lease to “Sumo Salad” at a shop in St Collins Lane, Melbourne.
Mr Hudson sought damages of $296,648 on account of these outstanding commissions. He also sought damages for consequential loss on the basis that he had lost the opportunity to use the outstanding commissions to purchase residential real estate in Paddington (and otherwise sought interest). The primary judge, Olsson DCJ, dismissed the proceedings.
On appeal, Mr Hudson challenged the primary judge’s decision with respect to his claim under the Deed on the basis that her Honour had construed the Deed incorrectly, had erred in making findings of fact as to whether the three commissions were payable (including by relying upon evidence that was not read) and erred in finding that no damages for consequential loss were payable.
The Court held (Kirk JA, Bell CJ and Ward P agreeing), allowing the appeal in part:
Construction of the deed and the Circular Quay deal
1. The effect of the key clause in the Deed relevantly was that the terms of Colliers’ “Commissions, Bonuses & Profit Share Policy” (Policy) applied to the commissions listed in Sch 3 of the Deed, subject to two express variations which were not material for current purposes: [35]. Under the Policy Mr Hudson’s entitlement to receive payment of commission for those invoices was dependent on Colliers being paid. Colliers was not paid the full amount claimed on the original invoice issued with respect to Circular Quay. In that context it was entitled to reduce the commission allocated to Mr Hudson in relation to that lease: [51].
Westfield deal
Claimed “Sumo Salad” deal and application of Blatch v Archer
3. Mr Hudson did not adduce evidence of any invoice being issued or paid in relation to the claimed Sumo Salad lease for a tenancy at St Collins Lane. Mr Hudson submitted that consistently with the principles in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 it was within the power of Colliers to prove whether or not such an invoice had been issued and paid and the evidence should be weighed accordingly. Blatch v Archer does not have the effect of altering the burden of proof. The civil onus of balance of probabilities requires that the fact-finder have “an actual persuasion”, a “reasonable satisfaction”, as to the claimed facts. To speak of a shifting “tactical” burden or onus can be liable to cause confusion. However, the process of reaching such an actual persuasion or reasonable satisfaction may be affected by established principles and juridical guidelines including those in Blatch v Archer: [65]-[71].
Blatch v Archer (1774) 1 Cowp 63; 98 ER 969, considered.
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17; Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; Watts v Rake (1960) 108 CLR 158; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34; Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39; [2024] HCA 1; Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235, referred to.
Consequential loss
BELL CJ: I agree with Kirk JA.
WARD P: I agree with Kirk JA.
KIRK JA: The appellant, Matthew Hudson, commenced employment with the first respondent, Colliers International (NSW) Pty Ltd, in October 2013 as a real estate agent. In February 2016 he was promoted to Associate Director, Retail Leasing. He entered a new employment contract for that position. His remuneration comprised both salary and commission components.
In June 2015 Mr Hudson celebrated his thirtieth birthday with a dress-up party on the theme “Huddo’s Flirty Thirty”. In 2016 Colliers received some media attention involving sexual harassment allegations made against another employee. In that context, in June 2016 media interest was sparked in a video posted to social media about Mr Hudson’s party. Mr Hudson and Colliers agreed to part ways. The second respondent, Michael Bate, was Mr Hudson’s supervisor and he led the negotiations on behalf of Colliers. The agreement was formalised in a “Deed of Release” between Mr Hudson and Colliers dated 22 June 2016 (Deed) which, amongst other things, obliged Colliers to pay Mr Hudson certain amounts including with respect to commission.
A dispute subsequently arose concerning commission payments relating to the following deals in relation to which Mr Hudson had played a role as agent:
a lease for a tenancy at the Overseas Passenger Terminal in Circular Quay where Newcastle Port Corporation Pty Ltd was the landlord (Circular Quay Lease);
a lease between Scentre Limited and The Mantle Group in relation to a tenancy at the Westfield Sydney CBD rooftop (Westfield Lease); and
a claimed lease to “Sumo Salad” at a shop in St Collins Lane, Melbourne.
Mr Hudson also brought a claim for misleading and deceptive conduct against Colliers and Mr Bate. His damages claims included consequential loss premised on Mr Hudson’s loss of opportunity to invest the payments he said he was entitled to receive into the purchase of a house in Paddington in Sydney.
The matter was heard by the primary judge, Olsson DCJ, in the District Court in February 2024. Nearly 18 months later her Honour handed down judgment dismissing all of Mr Hudson’s claims.
Mr Hudson’s original notice of appeal in this Court raised 11 grounds. However, he ultimately only pressed three of those. He did not pursue a challenge to the primary judge’s rejection of the misleading and deceptive conduct claim. Mr Bate was in the end not a necessary party to the appeal. The grounds were:
(1) The trial judge erred in her construction and application of the Deed of Release, by failing to give effect to its text, structure and commercial purpose, and by treating commission entitlements recorded in Schedule 3A as provisional and subject to later adjustment in a manner inconsistent with the negotiated risk allocation and the parties’ bargain.
(2) The trial judge erred in her treatment of Schedule 3B of the Deed by improperly concluding that the relevant commission entitlements had not been established, and by relying on evidence not read or rejected to reach … those conclusions.
(3) The trial judge failed to properly consider the appellant’s pleaded and argued case that damages for the lost opportunity were recoverable under the first and second limbs of Hadley v Baxendale (1854) 9 Exch 341, including by wrongly concluding that losses of the kind claimed were too remote and not established by the evidence.
In substance, as the arguments evolved, Ground 1 related to the Circular Quay Lease. Ground 2 related to the Westfield and St Collins Lane deals.
Grounds 1 and 3 should be rejected. Ground 2 is made out in relation to the Westfield Lease (only). It is appropriate to refer to relevant provisions of three contractual documents, before addressing the grounds in turn.
In addition to your salary, you will be entitled to commission based on revenue earned by the Company and credited to your name, inclusive of superannuation. Commission payments will be as set out in the attached Remuneration Schedule.
Attached is the Company’s Commissions, Bonuses and Profit Share Policy. You agree to be bound by this policy.
DEFINITIONS
In this Policy the following definitions shall apply:
…
“Commission Payments in Advance” Means where the Company agrees to pay an Employee commission payments before the Employee otherwise would become entitled to commission payments;
“Debt Collection Expenses” Means all costs incurred in the collection of the debt, including legal fees and mercantile agents fees incurred in collecting the debt;
“Deal Tracking Form” Means the Deal Tracking Form approved by the employees manager indicating how the total invoice amount is to be credited;
“Invoice Amount” Means the total amount of each Invoice treated as Revenue by the Company;
“Late Payment Reduction” Means a reduction on commission payable arising from the late settlement of an invoice. The Reduction is calculated as:
i) Once the debt reaches 120 days, the operator loses his entitlement of 20% of the fee.
ii) For each 30 day period thereafter that the debt remains unpaid, the operator loses an additional 5% on the unpaid amount of the debt. …
“Unrecovered marketing expenses” Means marketing related expenses incurred by the Company or its agents which are not fully met by the Client's contribution to marketing expenses, and which are not approved in writing to be a cost of the Company: …
1 Calculation of Commission
1.1 Commission entitlements are calculated in accordance with this Policy, other Company Policies such as the Strategic Entertainment Fund Policy and the Employee’s Commission Scheme;
1.2 Each calendar year, an Employee must reach their Annual Threshold, if applicable, before they become entitled to commission, subject to section 1.8; …
1.4 Commission entitlements are calculated based on the Invoice amount credited to the Employee as recorded on the Deal Tracking Form less:
1.4.1 Unrecovered Marketing Expenses;
1.4.2 Late Payment Reduction;
1.4.3 Debt Collection Expenses;
14.4 Any bad debt write-off arising from non-collection of part of all of the debt; …
1.7 Should an Employee resign or be terminated for any reason during the Calendar Year:
1.7.1 The Employee’s Annual Threshold will not be adjusted
1.7.2 The Employee can only claim commission for transactions that have been invoiced and approved by the Employee’s manager on or before the Employee’s last day of employment. The Employee cannot claim commission for invoices raised after the Employee’s last day of employment. …
2 Payment & Administration of Commission Entitlements
2.1 Commission becomes payable when:
2.1.1 The Employee becomes entitled to qualify for commission as per the Employee’s Commission Scheme and as per this Policy; and
2.1.2 The invoices have been paid in full by the client.
2.2 In limited circumstances the Company may agree to pay an Employee Commission Payments in Advance. An agreement to pay Commission in Advance must be in writing and approved by the Employee's Managing Director prior to payment.
2.3 The Company reserves the right to recover Commission Payments in Advance from the Employee against future commission payments or any other remuneration entitlements Including any eligible termination payments. …
The Parties have reached agreement in relation to the entitlements resulting from the Employee’s cessation of employment and the Parties wish to resolve all claims between them on the terms and conditions set out in this Deed.
The Deed included an entire agreement provision (cl 9(f)). The key term of the Deed for the purposes of these proceedings is cl 1(a), which obliged Colliers’ to pay Mr Hudson certain amounts. It is set out below (at [30]). The Deed made no provision as to when the various amounts identified in cl 1(a) were to be paid. Consistently with general principles, the amounts identified would be payable within a reasonable time: see eg Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13; [1946] HCA 48.
Clause 1(a)(iii) referred to Sch 3 of the Deed, which provided as follows:
A. COMMISSION DETAILS
See attached
B. COMMISSIONS
| Allocated Revenue (approximate) | Invoice Desc | Debtor | | $61,395.98 | Hilton Hotel | Germani | | $18,850.00 | Darling Park | GYG | | $15,000.00 | St Collins Lane | Sumo Salad | | $200,000.00 | Westfield | Westfield |
The terms of the Commissions, Bonuses & Profit Share Policy will apply to these potential commission entitlement as set out in this Schedule 3 B.
| Allocated Revenue | Invoice Number | Invoice Desc | Debtor | | $693,499.14 | CINSW21373 | 187303-5 Circular Quay We | Newcastle Ports Corporation Pt | | $15,859.57 | CIVIC19360 | 179685-260 Collins St | THE TRUST COMPANY (AUSTRALIA) | | $61,395.98 | | Hilton Hotel | Germani | | $18,850.00 | | Darling Park | GYG | | $15,000.00 | | St Collins Lane | Sumo Salad | | $200,000.00 | | Westfield | Westfield |
The latter four entries just quoted, being the last entries in the table, were also the four entries in Sch 3B. There was no invoice number entered for those four entries because Sch 3B was addressed to “potential commission entitlement” for invoices not yet issued to the relevant Colliers clients.
The ledger also specified the “Total Allocated Revenue” as $1,073,296.91, being the sum of all the allocated revenue in the document, including the four entries relating to the potential commission entitlements. It also indicated that applying Mr Hudson’s “Commissions Structure” to that “Total Allocated Revenue” a total of $296,648 was payable as commission.
As explained below, in the end Ground 1 related only to the commission payable on the Circular Quay deal. On 23 September 2014 Newcastle Port and Colliers agreed an “Exclusive Leasing Agency Agreement” for Colliers to act as leasing agent for a tenancy at the Overseas Passenger Terminal. Mr Hudson was tasked with marketing the tenancy. He introduced a potential tenant to Newcastle Port and a lease ultimately was agreed between those parties.
On 18 May 2016, while Mr Hudson was still employed by Colliers, an invoice was issued by Colliers to Newcastle Port for $802,999.01 (incl GST). It was payable by 1 June 2016. Mr Hudson was to be allocated $693,499.14 in revenue for his role in the transaction, as was later reflected in the relevant entry in Sch 3A of the Deed. However, the client raised concerns about the amount claimed by Colliers. On 27 May 2016 the Port Authority of NSW – a statutory corporation which seemingly was successor to Newcastle Port – engaged a third party to undertake a fact finding investigation into Colliers’ engagement as leasing agent, including the agreed fee structure.
By 22 June 2016, when the Deed was made, Colliers’ invoice was outstanding and overdue. Colliers was aware of the investigation. Clause 3(b) required Mr Hudson to provide Colliers with reasonable assistance in relation to it.
On or around 27 June 2016 the CEO of Colliers met with a representative of the Port Authority to discuss the amount claimed, and it was agreed to reduce the fee to $495,000 (incl GST). The original invoice was then cancelled by Colliers and a new invoice for the agreed amount was issued, pursuant to which $450,000 was to go towards Mr Hudson’s allocated revenue. In July 2016 the invoice for $495,000 was paid in full by the Port Authority.
A dispute then arose as to whether Colliers was required to calculate the commission payable to Mr Hudson on the basis of the original amount invoiced as referred to in Sch 3A (as Mr Hudson asserted) or on the lower amount subsequently invoiced and actually paid (as Colliers claimed).
There was no disagreement as to the legal principles relevant to the construction of the Deed as a contractual commercial agreement. Key principles were summarised in, for example, The J & P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; [2023] NSWCA 117 at [89]-[90]. The relevant provisions must be construed as a matter of text, context and purpose.
The dispute hinges on whether the Deed conclusively determined the amount payable to Mr Hudson with respect to the Circular Quay invoice, or whether instead aspects of the Policy – especially cl 2.1 – continued to apply. Clause 2.1 provided that commission “becomes payable when: … The invoices have been paid in full by the client”. The primary judge adopted the latter view (see at [73]).
The initial thrust of Mr Hudson’s submissions on Ground 1 had been that cl 1(a)(iii) of the Deed constituted an agreement for Colliers to pay Mr Hudson an amount of commission consistently with the sum of the allocated revenue that was recorded in Sch 3A, including the four future invoices also listed in Sch 3B. Put simply, it was an agreement to pay a $296,648 commission calculated on $1,073,296.91 in total allocated revenue, and the quantum of that commission was fixed by the Deed and not subject to change.
If that had been the intention, an obvious question is why it was not said in terms that Colliers agreed to pay Mr Hudson $296,648, encompassing all of his commission entitlements. Doing so would have required a handful of words, as opposed to the three sentences employed in the clause.
In any event, in the course of questioning that argument was narrowed. Counsel for Mr Hudson no longer pressed an argument that the four items identified in Sch 3B, also listed as the last four entries in Sch 3A, were excluded from the operation of the Policy. That concession was unsurprising, and correct, in light of the last sentence of cl 1(a)(iii). He thus accepted that payment of commission on the four items was subject to cl 2.1.2 of the Policy. Those invoices had not been paid when the Deed was entered; indeed, the invoices had not yet issued. Ground 1 was therefore only determinative in relation to the dispute as to commission payable on the Circular Quay deal (the other two disputed deals being listed in Sch 3B). The argument pressed was that as to the other amounts listed as invoiced in Sch 3A, including the Circular Quay deal, Colliers’ liability was imposed directly by cl 1(a)(iii); that liability was not affected by the terms of the Policy; and, in particular, cl 2.1.2 of the Policy did not apply.
Clause 1(a) of the Deed, along with related cl 3(b), provided as follows:
1. PAYMENTS
(a) Subject to the execution of this Deed, the Employer will pay the Employee:
(i) An ex-gratia payment as set out in Schedule 2 in the sum of $24,511.58 ("Settlement Amount"), less tax, in full and final settlement of all claims, including but not limited to:
(A) Save for commissions payable under paragraph (iii) below, payment in lieu of all rights, claims, compensation, commission, bonuses or any other entitlements due and payable, or that may become due and payable;
(B) Payment in lieu of any termination, redundancy entitlements, pro-rata long service leave entitlements due and payable, or that may become due and payable;
(C) Payment in lieu of any statutory entitlements (save for the amount referred to in clause 1(a)(i)(B)) due and payable, or that may become due and payable by the Employer; and
(ii) Any wages, salary and annual leave entitlement due and payable at the date of termination.
(iii) Any commissions that the Employee would be entitled to receive pursuant to the Employer's Commissions, Bonuses & Profit Share Policy (the Policy”), following the Termination Date. In this respect, notwithstanding clause 1.7.2 of the Policy, the Parties agree that these commissions are set out in Schedule 3 and further that there will be no Late Payment Reduction of any invoice ultimately paid under either the arrangement described in clause 3(b) below or under Invoice 20405 in respect of 6 Bridge Street. For the avoidance of doubt, the Policy will apply in all respects in relation to potential commissions set out in Schedule 3 B. …
3. SPECIFIC POST-EMPLOYMENT OBLIGATIONS
Further, the Parties specifically agree the following: …
(b) The Employee agrees to provide the Employer with any reasonable assistance required by the Employer, during normal business hours, in relation to the independent investigation, notified to the Parties by the Port Authority of New South Wales, arising from the Parties’ involvement in the leasing of Tenancy 5, Sydney Overseas Passenger Terminal. …
Mr Hudson argued that construction of cl 1(a)(iii) must commence by breaking the clause into its three sentences. Mr Hudson submitted that the first sentence was a promise by Colliers to pay him amounts that he would have been entitled to under the Policy. It was submitted that because the clause used the conditional “would” in connection with the Policy it suggested that the intention of the clause was to refer to a hypothetical – that is, the purpose of the clause was to make a current promise to pay amounts that hypothetically would have been owing under the Policy.
Mr Hudson argued that the significance of the second sentence was to evince an agreement that all of the commissions in Sch 3A were commissions that “the Employee would be entitled to receive pursuant to the Policy”. It was in substance a deeming clause, the effect of which was to confirm that all of the commissions in Sch 3A were to be treated by Colliers as applying towards the calculation of Mr Hudson’s bonus entitlement. Mr Hudson said that the effect of the promise of “no Late Payment Reduction …” was to confirm that notwithstanding any terms of the Policy, the two identified invoices could not be reduced on account of any late payment.
He also argued that the Policy had numerous preconditions which would have been inapposite to his position as a resigning employee. For example, cl 1.4 Policy at provided that “Commission entitlements are calculated based on the Invoice amount credited to the Employee as recorded on the Deal Tracking Form less ...”. The Deed, however, contained no provision for “Deal Tracking Forms” or “invoice amount[s] credited”.
As regards the third sentence, as noted Mr Hudson accepted that the Policy would apply to the four deals referred to in Sch 3B. Mr Hudson also relied on the fact that in Sch 3B itself there is a sentence under the table stating: “The terms of the [Policy] will apply to these potential commission entitlement as set out in this Schedule 3 B”. He also noted that the relevant heading in the table in Sch 3B referred to “Allocated Revenue (approximate)” (emphasis added). In contrast, the equivalent heading in Sch 3A was simply “Allocated Revenue”. The force of that point is diminished by the fact that the amounts in Sch 3B are also listed in Sch 3A.
I am not persuaded of the construction propounded by Mr Hudson. In my view the effect of cl 1(a)(iii) relevantly is that the terms of the Policy apply to the commissions listed in the whole of Sch 3, and not just those in Sch 3B, subject to the two express variations expressed in the second sentence. That is so in light of the following factors, taken together.
Clause 1(a)(iii), read with the chapeau, provides in the first sentence that “the Employer will pay the Employee: … [a]ny commissions that the Employee would be entitled to receive pursuant to the [Policy], following the Termination Date”. The starting point of the clause is the entitlements to which Mr Hudson would be entitled under the Policy, where those entitlements would be contingent relevantly upon payment having been received (per cl 2.1.2 of the Policy). As counsel for Mr Hudson put it, the words “would be entitled” effectively meant “I will pay you what you would have been entitled to”.
Ground 2 was said to relate to disputes about the commission payable on three deals: the Circular Quay Lease, the Westfield Lease, and the putative St Collins Lane deal. As regards the first, Mr Hudson had complained, with good reason, that the primary judge had relied on portions of the evidence of Mr Bates which had been rejected or not read when considering his claim. Clearly, the judge erred in so doing: note Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81 at [23]-[24] and [35]. The error may have occurred in part because her Honour handed down her judgment nearly 18 months after the hearing, when memory of what occurred at trial would have faded. Fault can also be attributed to Colliers. It provided closing written submissions relevantly referring back to its opening submissions, which referred to that evidence. In any event, the error is not material given the construction of cl 1(a)(iii) adopted above.
The other two deals were included in the four potential commission entitlements listed in Sch 3B. There was thus no dispute that the terms of the Policy applied to those claims. Distinct issues arise in relation to each of them.
In September 2015 Colliers entered into an agency agreement with Scentre Shopping Centre Management Pty Ltd (Scentre), which had requested Colliers’ assistance in identifying a suitable candidate for a tenancy on the rooftop of Westfield Sydney in Pitt St. The agreement provided that Colliers was not authorised itself to enter a lease as agent for Scentre. Its role was simply to find and introduce potential tenants. Colliers was entitled to commission if Scentre and the introduced person then entered a lease. Correspondence between Colliers and Scentre indicated a mutual understanding that Colliers’ fees would be capped at $200,000.
Pursuant to that agreement, Mr Hudson introduced Scentre to the Mantle Group as a potential tenant, doing so shortly before he left the employment of Colliers. It seems another Colliers employee assumed responsibility for the deal after Mr Hudson left. Scentre and Mantle engaged in negotiations for a time, which eventually broke down. Some 18 months later Scentre reopened negotiations with Mantle and the Westfield Lease was executed.
As a result, in late 2017 Mr Bate contacted Scentre seeking payment of commission under the agreement. Scentre agreed to pay an amount of $200,000. Two invoices were subsequently issued by Colliers for $100,000 (plus GST) each. One of those invoices was paid in 2018 and the other in 2019.
The primary judge held that no commission was payable. Her Honour found that “the first negotiations failed”, and the agreement ultimately reached between Scentre and Mantle “was a different transaction to that involving Mr Hudson” (at [82]).
That conclusion was wrong. The negotiations between Scentre and Mantle may have broken down before being reactivated after a lengthy delay. Yet it was the same two parties who were negotiating. It was not Colliers’ role to undertake those negotiations. Indeed, Colliers acknowledged that the re-opened negotiations between Scentre and Mantle “did not involve the Appellant or the Respondent in any way”. The negotiating parties had been introduced to each other by Mr Hudson on behalf of Colliers. It was not suggested that Colliers had any basis to claim commission other than because of the introduction effected by Mr Hudson. As regards Colliers, it was in no sense “a different transaction”.
Moreover, the $200,000 listed against the Westfield invoice in Sch 3B (and Sch 3A) of the Deed aligns with the agreed cap on Colliers’ fees and the amount ultimately invoiced and paid. Colliers and Mr Hudson had thus definitively agreed that revenue of that amount was to be attributed to Mr Hudson (see [45] above). Because of cl 2.1.2 of the Policy, commission was not payable on that amount until the identified revenue was paid by the client. But that amount was paid by Scentre, albeit after an extended delay. No arguments have been made about Mr Hudson’s commission being reduced because of late payment.
On 16 September 2014 Colliers and The Trust Company (Australia) Limited entered into an “Exclusive Commercial Leasing Authority” in relation to “260 Collins St, Melbourne (St Collins Lane)”. A lease was subsequently arranged by Colliers. On 29 April 2016 Colliers issued invoice CIVIC19360 to the Trust Company. The invoiced amount was $34,891.05 (incl GST). Mr Hudson was listed as one of three “operators” on the invoice. The tenant identified on the invoice was “Los Vida” and the property identified was “St Collins Lane, 260 Collins St” in Melbourne. A draft invoice dated 21 December 2015 more specifically identified the Los Vida tenancy as “FL 2.01, Level 2, St Collins Lane”.
The invoice number for this invoice aligns with an entry in Sch 3A to the Deed for “260 Collins St”. The invoice amount is greater than the $15,859.57 recorded as allocated revenue for Mr Hudson in Sch 3A in relation to that transaction, presumably because the revenue was divided between the various Colliers “operators” on the invoice. Mr Hudson was paid commission for this lease.
In Sch 3A there is a separate entry, echoed in Sch 3B, for “St Collins Lane”, where the debtor is listed as “Sumo Salad”. Presumptively, from the two listings in the schedule, this related to a different tenancy. There was some evidence apparently relating to that putative lease. On 10 November 2016 ENA Food Group Pty Ltd signed a counterpart of a heads of agreement with the Trust Company in relation to the lease of “Shop FL2.02 Level 2 St. Collins Lane”. No counterpart executed by the Trust Company was in evidence and it is not clear if the deal was agreed. Colliers has not paid Mr Hudson any commission with respect to this putative deal.
The primary judge found that the disputed deal relating to St Collins Lane was duplicative of the CIVIC19360 invoice to the Trust Company (at [83]-[86]). Critical to this finding was her Honour’s reliance on evidence of Mr Bate that had not been read. Her Honour’s reasoning was thus erroneous. Moreover, there is good reason to conclude that this putative deal was distinct from the earlier one. It seemingly related to a different shop (FL2.02 as opposed to FL2.01). It involved a different trader (“Los Vida” versus ENA or “Sumo Salad”). It related to a different time. And the fact that there are different entries in Sch 3A itself resolves the issue where, as explained, the point of that schedule was definitively to identify the revenue allocated to Mr Hudson. These facts are consistent with Mr Hudson's own evidence that there “were two different deals at two different premises”.
However, these facts do not suffice to establish Mr Hudson’s entitlement to payment of commission. There is no evidence that any invoice was issued by Colliers with respect to this putative lease. And, if such an invoice had been issued, there was no evidence it had been paid to Colliers. Mr Hudson’s entitlement to payment was contingent on Colliers having been paid. The onus of proof was on Mr Hudson to prove the facts on which his claim rested.
[165] Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led. Principles governing the onus and standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken to account in determining whether a party has proved its case to the requisite standard. But both the circumstances in which that may be done and the way in which the absence of evidence may be taken to account are confined by known and accepted principles ...
[166] Lord Mansfield’s dictum in Blatch v Archer that “[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted” is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for “it would have been very improper to have called” the person whose account of events was not available to the court.
As that passage indicates, the principle in Blatch v Archer and connected principles do not alter the burden of proof. The civil onus of balance of probabilities requires that the fact-finder have “an actual persuasion”, a “reasonable satisfaction”, as to the claimed facts: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; [1938] HCA 34. Whether or not the onus is discharged is to be assessed by the fact-finder at the end of the case when all the evidence is in. For these reasons, to speak of a shifting “tactical” burden or onus can be liable to cause confusion: Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235 at [35]-[36]. However, the process of reaching such an actual persuasion or reasonable satisfaction may be affected by established principles and juridical guidelines.
For example, the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 is that an unexplained failure by a party to call a witness may in appropriate circumstances, first, support an inference that the uncalled evidence would not have assisted the party’s case, and, second, may permit the fact-finder to draw with greater confidence any inference unfavourable to the party that failed to call the witness: note Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. The principle is not about the admissibility of evidence or the burden of proof. Rather, it is “a principle of judicial reasoning which addresses the drawing of inferences of fact”: Ling v Pang [2023] NSWCA 112 at [24].
There are other such principles. One applies with respect to disentangling causal contributors to established incapacity or harm: see Watts v Rake (1960) 108 CLR 158 at 159-160; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164 at 167-168 and 170-171; [1965] HCA 34. Dixon J explained the approach articulated there as reflecting a “presumptio hominis” (Watts at 160), that is, a human presumption which is applied in the reasoning involved in fact finding. As Windeyer J put it in Purkess, “[t]he ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it” (at 171), and “[i]t is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise” (at 170).
Another example is that in contract claims the “legal onus to prove loss arising from a breach of contract falls upon the plaintiff”, but in “some circumstances the common law facilitates its discharge”: Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39; [2024] HCA 17 at [127]. In particular, a “facilitation principle” will apply such that “a plaintiff is assisted in proof by reasonable inferences where a defendant’s breach has resulted in difficulties or impossibilities of proof of loss or damage” (ibid). This principle “is concerned with how the claiming party may discharge that onus” of proof which it bears: *) v Bailey Roberts Group Pty Limited (in* *)* [2026] NSWCA 74 at [115].
In his further amended statement of claim Mr Hudson claimed the sum of $296,648 in commission on the three disputed deals, and then a further amount to cover his consequential loss for the loss of the opportunity to use that sum “towards the purchase of a residential property in Paddington and realise and apply that capital gain to the Plaintiff’s current residential property”. Mr Hudson did purchase a Paddington residence in November 2016. He claimed he would have bought a more expensive residence if the disputed commission had been paid. There was some argument as to whether Mr Hudson’s claim was premised on the purchase of a particular identified house in Paddington or whether the claim was put more broadly as a house of that kind. It is not necessary to resolve that dispute. Importantly, Mr Hudson’s evidence was predicated on him being paid all of the disputed commission, with that commission being paid to him within some two months of signing the Deed.
The primary judge appropriately considered this issue, lest her findings on liability be in error. Her Honour rejected the claim for reasons which included that the claimed loss of opportunity could not be said to have been in the contemplation of the parties, such that the claim was too remote.
The identified amount of $296,648 was the commission that would have been payable on the attributed revenue of $693,499.14 on the Circular Quay Lease, $200,000.00 for the Westfield Lease, and $15,000.00 for the putative Sumo Salad lease. In light of the above analysis, the revenue attributable to Circular Quay was reduced to $450,000 and no amount was payable for Sumo Salad. As for the Westfield Lease, for which the commission would have been in the order of $100,000, that amount is not relevant to the claimed loss of opportunity, as counsel for Mr Hudson accepted in this appeal. That was so because the revenue and commission were only payable after the Westfield deal was concluded. The invoices were paid in 2018 and 2019. Thus the amount payable by Colliers in 2016 was substantially less than the amount upon which Mr Hudson’s claim was predicated, fatally undermining that claim.
Even if I had reached a different conclusion on Grounds 1 and 2, Mr Hudson would still not have made out his claim. Mr Hudson’s evidence was that if he had received the claimed commission of $296,648 this would have given him an additional amount of some $148,000 after tax to spend in 2016 on buying a Paddington home. This evidence proceeded on the erroneous assumption that he would at that time have received in the order of $50,000 after tax with respect to the Westfield Lease. The maximum amount that on Mr Hudson’s case he should have received from Colliers (excluding Westfield) was in the order of $100,000. His evidence did not address what he would have done in that circumstance, which was materially different to the situation which he did address. This is not a case where the Court can infer some middle position. To do so would be an exercise in speculation which the Court should not attempt, especially when Mr Hudson has claimed prejudgment interest to compensate him for the loss of the use of the money due. Ground 3 is not made out on the facts. It is unnecessary to address remoteness.
The notice of appeal was filed two days late. The respondents did not oppose an extension of time being granted. 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.
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.
The orders should be as follows:
Extend time for the filing of the notice of appeal to 10 September 2025.
Appeal allowed in part.
Set aside order 1 made in the District Court on 8 August 2025.
The parties are to notify the Court of any agreement reached with respect to final orders by 27 May 2026.
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.
**********
Hudson
Colliers International (NSW) Pty Ltd
[1938] HCA 34
[2026] NSWCA 74
[2011] HCA 11
(2012) 247 CLR 345
(1938) 60 CLR 336
(2024) 281 CLR 39
(1959) 101 CLR 298
(2011) 243 CLR 361
(2009) 254 ALR 81
(1965) 114 CLR 164
(1946) 73 CLR 1
(2023) 112 NSWLR 29
(1960) 108 CLR 158
Time to file the notice of appeal was extended to 10 September 2025. The appeal was allowed in part and the District Court's order 1 of 8 August 2025 was set aside. The parties were directed to notify the Court of any agreement on final orders by 27 May 2026, with written submissions and supporting evidence due on 1 June 2026 and reply submissions due on 3 June 2026 if agreement was not reached: [81].
Strictly it was not necessary to reaffirm the application of the Policy, given that Mr Hudson already had contractual rights under the Policy as read with his employment contract. However, it is unsurprising that the parties would seek to express in encompassing terms what payments Colliers was liable to make in connection with the termination of his employment. Moreover, that affirmation of the Policy set the context for the variations identified in the second sentence of the clause. While the clause did not state that the commissions were payable immediately (or within a reasonable time), the first sentence could be read in that way. However, it must be construed holistically with the subsequent two sentences in the clause.
The second sentence records agreement that “In this respect, notwithstanding clause 1.7.2 of the Policy, the Parties agree that these commissions are set out in Schedule 3 …” (emphasis added). The commissions being referred to are the commissions identified in the first sentence, being the commissions to which Mr Hudson would be entitled under the Policy.
The second sentence varies the operation of the Policy in two respects. First, pursuant to the words “notwithstanding clause 1.7.2 of the Policy”, Mr Hudson was to be entitled to receive commission on the four deals identified in Sch 3B, which had not yet been invoiced. Otherwise, pursuant to cl 1.7.2, he would not have been entitled to receive commissions for transactions that had not been invoiced and approved by his manager on or before his last day of employment. The second variation was that as regards the Circular Quay invoice, and another identified invoice (20405), the provision in the Policy allowing reduction of the commission by the “Late Payment Reduction” was disapplied.
The express exclusion of Late Payment Reductions only for the two identified arrangements indicates an understanding that Late Payment Reductions would otherwise apply in relation to all other arrangements. And that could only be so if Mr Hudson’s entitlement was contingent on Colliers being paid, such that the timing of payment was relevant. That understanding is reinforced by the fact that the overriding of the Late Payment Reduction for the two identified arrangements was itself expressed to be in relation to “any invoice ultimately paid under either” arrangement (emphasis added). Those words indicate that the issue of any such reduction would only have arisen if and when payment was received, which presupposes that Mr Hudson’s entitlement to payment of the commission was subject to Colliers actually receiving payment from the client, consistently with cl 2.1.2 of the Policy.
The express exclusion of the Late Payment Reduction for the two deals also suggests that the parties considered that the other permitted reduction mechanisms set out in cl 1.4 of the Policy would apply, those types of reduction not having been expressly excluded in the same way. That understanding presupposes application of the Policy to all of the applicant’s commissions, except as expressly excluded. Conversely, on Mr Hudson’s construction the words which excluded the Late Payment Reduction for the two identified invoices would be superfluous because that effect would be achieved by the clause simply deeming that commission had to be paid on the identified sums.
It is understandable, incidentally, that the parties would agree to exclude any deduction for late payment with respect to the Circular Quay invoice. A dispute with the client had already arisen by the time of the Deed, payment was already overdue, and the client was having the matter investigated. Colliers foresaw that it might need Mr Hudson’s assistance with the investigation and he agreed to provide it. The exclusion of a Late Payment Reduction can readily be seen as a quid pro quo for that assistance. Presumably some particular issue had also arisen in relation to the other identified invoice, but the nature of that issue was not explained.
Each side sought to call in aid the third sentence and, in particular, its reference to “For the avoidance of doubt”. Mr Hudson sought to give those words an expressio unius spin, arguing that the express statement that the Policy applied to the potential commissions identified in Sch 3B implied that otherwise the Policy did not apply. Colliers put the counter-spin that the words simply sought to dispel any doubt that the Policy applied in full to the potential commissions. As those arguments illustrate, the phrase “for the avoidance of doubt” can be employed on the basis that the point being addressed was obviously intended to be covered by what had gone before, or was obviously not intended to be covered by what had gone before, and was being addressed just to dispel any conceivable doubt. In my view both types of understanding are open here. Counsel for Colliers agreed, saying “[w]e are blessed to have your Honours making the choice rather than us, because we certainly would accept that both of those constructions are in fact open in the circumstances”. In this regard the third sentence does little to advance the analysis either way, beyond making clear that the Policy did apply to the deals in Sch 3B.
That being said, it is not apparent why the parties would agree that the conditions in the Policy should apply to the potential commissions but not apply with respect to the deals already invoiced. And if they had intended that the potential commission amounts identified in Sch 3A (other than for the four last deals) were to be payable immediately despite the terms of the Policy, then it would have been much simpler to identify the numeric amount.
The construction I have identified gives clause 1(a)(iii), along with Sch 3, real work to do. The entitlement to commissions pursuant to the Policy was affirmed subject to two variations, and the clause and Sch 3 record definitively that the parties agree on identification of all the deals and revenue to be attributed to Mr Hudson, so as to avoid any future dispute about that issue. As counsel for Mr Hudson correctly put it, “the calculation is performed on the basis of the commissions that we have agreed in this schedule”. Thus, as Mr Hudson argued (see above at [33]), the status of “deal tracking forms” and so forth was rendered irrelevant.
However, agreement on the deals and revenue to be attributed is a distinct issue from whether or not Mr Hudson’s entitlement to be paid those commissions remained contingent on Colliers having received payment. The Policy provided for means of identification of the “commission” payable, then imposed a requirement that the invoices had been paid in full by the client as a condition precedent to actual payment of that “commission”. That there was a difference between identification of the commission and its payment is illustrated by the fact that the heading of cl 1 in the Policy was “Calculation of Commission” and the heading of cl 2 was “Payment & Administration of Commission Entitlements”. These provisions in the Policy form part of the context in which the Deed falls to be construed. It will be recalled that cl 1(a)(iii) refers to “[a]ny commissions that the Employee would be entitled to receive” (emphasis added), that is, would be entitled to be paid.
Mr Hudson referred to cll 2.2 and 2.3 of the Policy which provided that Colliers may agree to pay commission payments in advance. He asserted that that is what had been agreed in the Deed. However, those provisions do not advance matters, as they simply illustrate that Colliers might have agreed to pay in advance. The issue in dispute is whether or not Colliers had done so.
Colliers argued that the Policy gave it “a broad and unconstrained discretion” to reduce the amount of commission payable to employees. That argument rested on the unpromising foundation of a definition in the Policy of the term “Invoice Amount” to mean “the total amount of each Invoice treated as Revenue by the Company”. It is not necessary to address this argument. The dispute about the amount payable to Mr Hudson with respect to the Circular Quay invoice related to the fact that the client and Colliers ended up agreeing that the client would pay a lesser amount than what originally had been invoiced. No complaint was made by Mr Hudson about how Colliers then attributed to him a proportion of the revenue actually paid. Thus he was not complaining about some exercise of discretion by Colliers vis-à-vis him. His complaint was that he was entitled to be paid as though the original invoice had been paid in full even though it had not been. Yet that simply reflected the operation of cl 2.1.2. No suggestion was made that Colliers reached an agreement with the client about reducing its bill in bad faith, as part of some attempt to reduce the commission payable to Mr Hudson.
It will be recalled that cl 2.1.2 provides that “Commission becomes payable when: … The invoices have been paid in full by the client”. Other considerations would have arisen if Colliers had refused to pay Mr Hudson any commission in relation to the Circular Quay deal on the basis that the particular invoice originally issued to the client, as identified in Sch 3A, was cancelled and another one issued in its place. Any such dispute would have required considering how to construe the words in these provisions, and may have taken account of implied requirements of good faith. Such points do not arise on the facts here.
Counsel for Mr Hudson raised a related concern about Colliers being able to avoid payment of commission, based on cl 2.1.2, because a client paid say $1 less than the full amount in the invoice. Again that is not this case, and it is not necessary to decide whether such a literalistic construction should be adopted.
In the result, cl 1(a)(iii) of the Deed does not have the effect of disapplying cl 2.1.2 of the Policy in relation to the amounts identified in Sch 3A, including the Circular Quay invoice. The primary judge was correct to hold that Mr Hudson’s entitlement to receive payment of commission for those invoices was dependent on Colliers being paid on those invoices. Colliers was not paid the full amount claimed on the original invoice issued with respect to Circular Quay. In that context it was entitled to reduce the commission allocated to Mr Hudson in relation to that lease. Ground 1 of the appeal should be rejected.
Mr Hudson was entitled to commission payable on the $200,000 revenue attributable to the Westfield Lease. Ground 2 should be upheld to that extent.
Mr Hudson did not dispute his onus but relied on the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 that evidence should be weighed according to the capacity of a party to produce it. He argued it was within the capacity of Colliers to adduce evidence as to whether the putative deal had led to an invoice and payment.
In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 the following was said (citations omitted):
Lord Mansfield’s statement in Blatch v Archer overtly was directed to the weighing of evidence, that is, to the assessment of what is established on the evidence before the court. His reference to what “was in the power of one side to have produced” indicates that account can be taken in the factual reasoning process of the means of investigation and production available to a party. Indeed, the relevant issue in that case related to whether a particular person should have been subpoenaed to give evidence.
Here, no doubt it was Colliers and not Mr Hudson that held the evidence as to whether or not an invoice had been issued and had been paid in relation to the second St Collins Lane property. However, such evidence could readily have been sought by Mr Hudson by way of discovery, a notice to produce, or a subpoena to the relevant client or tenant. Taking such steps would have not involved great difficulty or cost. And it appears that a notice to produce encompassing this point was issued and some documents were produced. Colliers made an uncontradicted submission that “no issue was taken with respect to the adequacy of that particular production, [and] there were no documents in that bundle of material that dealt with or identified a Sumo Salad transaction”. Where production of evidence held by one party has been sought by compulsive process, and the adequacy of production not challenged, the absence of evidence is evidence of absence.
In this context the principle in Blatch v Archer has no role to play. The Court has no evidence that any invoice was issued let alone paid with respect to this putative lease. There is no basis to infer that payment was made. Mr Hudson has failed to discharge his onus of proof with respect to his claim in relation to the St Collins Lane property. This aspect of Ground 2 must be rejected.