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[2025] NSWDC 494
General information, not legal advice.
District Court of NSW
2025-11-28
Weber SC DCJ
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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: J & J Investments (NSW) Pty Ltd v Home Buyers Agency Group Pty Ltd [2025] NSWDC 494
Hearing dates: 6 August 2025 – 8 August 2025; 11 September 2025
Date of orders: 28 November 2025
28 November 2025
Jurisdiction: Civil
Before: Weber SC DCJ
Decision: (1) Judgment and verdict for the defendants against the plaintiff.
(2) Judgment and verdict for the cross-claimants against the cross-defendant.
(3) That the defendants’ commission be wholly recoverable by the defendants, notwithstanding any failure of the Agency Agreement to comply with the requirements of the Property, Stock and Business Agents Act 2002 (NSW) and the Property, Stock and Business Agents Regulation 2014 (NSW).
(4) That the plaintiff/cross-defendant pay the defendant/cross-claimant’s costs.
Catchwords: AGENCY – Real estate Agency Agreement – Disputed entitlement to commission – Property, Stock and Business Agents Act – Whether non-compliance of Agency Agreement with Act and Regulation was a minor failure – Where parties negotiated both an Agency Agreement and Development Agreement – Whether Development Agreement formed a ‘binding contract’ establishing entitlement to commission
CONTRACT – Whether commission was paid by mistake – Restitutionary claim – Real estate agent entitled to recover any unpaid commission under cross-claim
Legislation Cited: Property, Stock and Business Agents Act 2002 (NSW) ss 55, 55A
Property, Stock and Business Agents Regulation 2014 (NSW) Sch 7 regs 2, 3
Cases Cited: BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266; [1977] UKPCHCA 1
Bull v Attorney-General (NSW) (1913) 17 CLR 370
County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193
Electricity Generation Corporation v Woodside Energy Pty Ltd (2014) 251 CLR 640
Hide & Skin Trading v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64
Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Northwalker Realty Pty Ltd v TFM Chatswood Land Pty Ltd (No 2) [2022] NSWSC 1409
R v Kearney; Ex parte Jurlama (1984) 158 CLR 426
Category: Principal judgment
Parties: J & J Investments (NSW) Pty Ltd (Plaintiff/Cross-Defendant)
Home Buyers Agency Group Pty Ltd (First Defendant/First Cross-Claimant)
Joshua Nessim Alexander Girgis (Second Defendant/Second Cross-Claimant)
Representation: Counsel:
Mr R Alkadamani (Plaintiff/Cross-Defendant)
Mr L James (Defendants/Cross-Claimants)
Solicitors:
A L Wunderlich & Co (Plaintiff/Cross-Defendant)
One Group Legal (Defendants/Cross-Claimants)
File Number(s): 2023/00459514
These proceedings concern a real estate agent’s right to commission. Such claims are not unusual, however, these proceedings have some unusual features.
The first unusual aspect is that the commission has already been paid. It was paid in two tranches, one in October 2018 and the other in October 2019. The second unusual aspect is that the ultimate transaction with which the proceedings are concerned did not involve an orthodox contract for sale; rather, it involved a complex development agreement which comprised of an element of transfer of part of the land, but with other clauses which related to the development of the property into a residential unit complex, with a subsequent division of the units between the parties to the agreement.
The plaintiff now seeks to claw back the commission which it has already paid. This claim is founded, basically, on a claim in monies had and received. The basis of that restitutionary claim is that the plaintiff says the commission payments were paid under a mistake. There are mirror proceedings under the Australian Consumer Law (NSW) and (Cth) (‘ACL claim’) for misleading and deceptive conduct. The factual basis of both the restitutionary claim and the ACL claim is the assertion by the plaintiff that the commission was not, in reality, owing, and thus the payment of the commission constituted a payment made under a mistake of fact, or, in the case of the ACL claim, pursuant to a representation that such monies were payable.
As at 2017, J & J Investments Pty Ltd (the plaintiff) was the registered proprietor of a parcel of land at 253-259 Princess Highway, Carlton, NSW (the ‘Property’).
In 2017, the plaintiff sought to sell the Property and entered an agency agreement with Colliers International (NSW) Pty Ltd (‘Colliers’). The Property was passed in at an auction held on 19 October 2017.
From late 2017 and January 2018, there were some communications between Mr Tom Bubev and Mr Michael Girigs or Mr Joshua Girgis (the second defendant) in relation to selling the Property.
On 29 March 2018 the plaintiff signed a document entitled Sales Inspection Report and Open Selling Agency Agreement (‘Agency Agreement’). Mr Joshua Girgis, the second defendant, also signed the Agency Agreement.
The identity of the real estate agent as recorded in the relevant field of the Agency Agreement is Home Buyers Agency Group Pty Ltd (the first defendant) (‘Home Buyers Agency’).
It is common ground that the real estate licence number recorded on the Agency Agreement, namely 201 151 27, was that of Mr Joshua Girgis.
It is also common ground that Home Buyers Agency did not have a real estate licence as at 29 March 2018. Its licence was only obtained on 30 April 2018.
On 28 September 2018, the plaintiff entered into a joint venture agreement (‘Development Agreement’) with a developer, Touma Property Developments Pty Ltd (‘Developer’).
Upon signing the Development Agreement, the plaintiff received $700,000.00 from the Developer and the plaintiff was required to transfer a 20% interest in the Property to the Developer.
On 29 September 2018, the first defendant issued a tax invoice for half of the commission, namely $97,000.00 including GST. The plaintiff paid the invoice. On 29 October 2019, the first defendant issued a second tax invoice for the same amount. This invoice was also met by payment.
The plaintiff’s case was that, under the Agency Agreement, the agent’s entitlement to commission was never satisfied.
Under clause 2(i) of the Agency Agreement, the agent is entitled to a commission of 2% if ‘during the Agency Period [the agent] effectively introduce[s] a purchaser to the principal of the Property who subsequently enters into a binding contract’.
The parties are in dispute as to the proper construction of the words ‘binding contract’ in the Agency Agreement. The plaintiff submitted that those words mean a binding contract for the sale of land and do not include the Development Agreement. The defendants, on the other hand, contend that the Development Agreement was a ‘binding contract’ within the meaning of the Agency Agreement.
The plaintiff says that its construction of the words ‘binding contract’ was supported by the following:
the period of the Agency Agreement set out in clause 1 is defined as ‘commencing from 27/3/18 until such time as the Property is sold or this agreement is terminated’. The plaintiff places emphasis on the word ‘sold’;
clause 2(i) refers to the agent being entitled to a commission if the agents ‘effectively introduce a purchaser’ and clause 2(ii)(c) refers to a ‘purchaser’. The plaintiff says that the references to ‘purchaser’ refer to the counterparty to the ‘binding contract’. The ordinary meaning of ‘purchaser’, the plaintiff says, refers to one party to a sale contract;
the reference in clause 2(iv)(a) to ‘completion of the sale’, which the plaintiff says refers to a ‘sale’ under the ‘binding contract’;
the reference in clause 2(iv)(b) to the consequences if the ‘sale is not completed owing to’ the default of the principal (i.e. the plaintiff). The plaintiff says that this refers to the circumstance of the sale transaction under the ‘binding contract’ not completing;
the reference to the termination of ‘the contract’ in clause 2(ii)(d) is a reference to the binding contract referred to in clause 2(i). The plaintiff seeks to draw attention to the fact that, consequently, clause 2(ii)(d) makes clear, again, that the counterparty is a purchaser.
The plaintiff further submitted that the Development Agreement was not a contract for sale of land, although it accepts that the agreement did involve a 20% disposition of an interest in the Property. It says that the Development Agreement would not ‘complete’ in the way that a contract for sale of land completes after exchange of contracts. It further contends that under the Development Agreement there is no purchaser for the Property.
Further, the plaintiff draws attention to the conditions which give rise to the commission becoming due, which were defined by clause 2(iv) of the Agency Agreement. This clause provided that the fee becomes due and payable on demand upon the happening of one of the following events:
on completion of the sale; or
if the sale is not completed owing to the default of the Principal after the parties have entered into a binding contract; or
if after the making of the contract the Principal and the Purchaser mutually agree not to proceed with the contract; or
upon the termination of the contract by the Principal if the sale is not completed owing to the default of the Purchaser and the fee is the same or less than the amount of the deposit which is forfeited to the Principal.
These matters, it says, are inapplicable to the Development Agreement
In summary, the plaintiff contends that since the Development Agreement was not in the form of a contract for sale, it was not a ‘binding contract’ within the meaning of the Agency Agreement. Accordingly, the plaintiff says that the defendants’ entitlement to commission under the Agency Agreement did not arise.
Thus, the plaintiff’s case is that it was not liable under the Agency Agreement to pay any commission to either defendant.
As I have earlier indicated, the plaintiff did in fact pay $194,000.00 in commission to the first and/or second defendant. The plaintiff contends that these payments were made because Mr Joshua Girgis represented that the plaintiff was liable to pay the commission under the Agency Agreement.
Thus, the plaintiff contends that the payment of the $194,000.00 was made in the mistaken belief that the plaintiff had that liability to the defendants.
Further, the plaintiff pleads that the defendants were not entitled to receive or retain the commission because of contraventions of the Act and the Regulation.
In particular, the plaintiff relied upon alleged contraventions of ss 55(1)(a) and (b) of the Act, which provide the following:
55 No entitlement to commission or expenses without agency agreement
(1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless:
(a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of:
(i) the person, and
(ii) the licensee, and
(b) the agency agreement complies with any applicable requirements of the regulations, and
…
Regulation 8(1)(a) provides that agency agreements must comply with the requirements set out in Sch 7 of the Regulation.
Pursuant to reg 2 of Sch 7, agency agreements are required to specify the name of each party to the agreement. The plaintiff contends that the Agency Agreement did not comply with reg 2, because it did not specify the identity of the licensee as being Mr Joshua Girgis (whose licence number was recorded on the Agency Agreement). The plaintiff notes that the field for insertion of the agent’s name was left blank in the Agency Agreement, and that in the field for insertion of the agent’s trading name, the Agency Agreement recorded the name of the first defendant.
The plaintiff also asserts a breach of reg 3 of Sch 7 in that, while the first defendant’s name was recorded, its licence number was not.
The plaintiff also brings breach of contract claims. These claims allege breach of implied terms. The first implied term is said to be to the effect that the defendants would not seek or retain commission unless they were entitled to do so. The second implied term was a term requiring contractual cooperation. Those terms, it is said, were breached by seeking payment of commission when there was no entitlement to do so under the Agency Agreement.
As I have indicated, the plaintiff also brings a misleading and deceptive conduct claim under the ACL. That claim is founded on the rendering of tax invoices together with Mr Joshua Girgis’ statements that the commission was due and payable, when, on the plaintiff’s case, it in fact was not.
The defendants say that on about 9 June 2018 a director of the plaintiff, Mr Tom Bubev, and Mr Joshua Girgis met (‘June Meeting’). At that time, the negotiations with the Developer had not concluded and, as such, there was not as yet agreement between the parties as to whether the arrangement with the Developer was to involve a conventional sale of land, or whether it would involve a development agreement. The defendants say that the June meeting resulted in an agreement as to the timing of the payment of the commission in the event that the plaintiff and the Developer entered into a development agreement. The defendants also say that during this meeting, there was a discussion as to the question of the commission to be paid. This quantum of commission was based upon 2% of the expected return to the plaintiff from the development agreement.
The proposed payment to the plaintiff by the Developer pursuant to the Development Agreement was to be a cash payment of $700,000, together with the refinancing of a loan secured over the Property for the plaintiff’s benefit of approximately $2.46 million. This loan was to be on an interest-free basis. In addition, the plaintiff was to retain 12 completed unencumbered 2-bedroom units in the proposed development, which, at the June Meeting, the parties agreed would be worth from $780,000 to $820,000 each. This led to a total value of the units to the plaintiffs of approximately $10.3 million (excluding any benefit from the interest-free loan provided by the Developer).
Although the plaintiff disputes whether the commission payable under the Agency Agreement was discussed at the June Meeting, it does not dispute that the value of the Developer’s offer was discussed, or that the value to the plaintiff of the Developer’s offer was estimated to be $10.3 million. It is significant to note that 2% of that figure is $206,000.
The defendants contend that on 28 September 2018, immediately after the plaintiff entered into the Development Agreement, the plaintiff and the defendants met (‘September Meeting’) and came to a further agreement as to the amount of commission payable. The defendants say that the plaintiff requested the defendants to reduce the amount claimed by way of commission from $206,000 to $194,000. The plaintiff denies the previous discussions as to the $206,000 figure, but agrees that the parties came to an agreed figure of $194,000. The defendants say the timing for payment of that amount had been agreed at the June Meeting, while the plaintiff says the timing of that payment was agreed in the September Meeting.
The defendants submitted that it was significant that the parties agreed that the revised commission amount payable pursuant to the varied Agency Agreement was not simply a reduction in the gross figure to be paid to the defendants, but rather was a figure calculated by reference to the terms of the Development Agreement. In particular, they point to the fact that the commission was to be calculated by reference to the average price of the units to be retained by the respective parties.
The defendants then submitted that it was clearly in the contemplation of the parties that they were to apply the commission percentage as originally identified in the Agency Agreement to an agreed average value of the benefit of the units that were to be retained by the plaintiff. In those circumstances, the defendants say the agreement to reduce the commission was, in essence, a reaffirmation that commission would be payable, and that it would be calculated on the basis set out in the Agency Agreement by reference to the value of the purchaser’s benefits under the Development Agreement. I agree with this contention.
The parties’ agreements at both the June Meeting and September Meeting were never reduced to writing. Notwithstanding this, as I have earlier indicated, payment of the commission agreed at the September Meeting occurred in two tranches by cheques dated 9 October 2018 and 29 October 2019. These cheques were paid in satisfaction of invoices from the first defendant dated 29 September 2018 and 29 October 2019.
It is important to note that these payments were consistent with the time for payment as agreed between the parties, either at the June Meeting or, at latest, at the September Meeting, and were consistent with the quantum of the commission as agreed by the parties at the September Meeting.
The defendants submitted, correctly in my view, that it was significant that following the oral variation, the essential terms of the Agency Agreement remained unchanged.
I should also add at this point that, as the contract was partly oral and partly in writing, subsequent conduct is permissible to identify the terms of the contract which were not reduced to writing (County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 at [21] per Spigelman CJ).
In reality, there was not a great deal of inconsistency between the parties as to what occurred at the meetings of June and September 2018. In many cases, Mr Bubev simply stated that he could not recall what was said at the meetings.
There was, however, an area of divergence in the evidence concerning the genesis of the Agency Agreement. Mr Joshua Girgis’ evidence was that it was known to the parties at the time of entry in the Agency Agreement that the transaction to which it referred may involve either a straight contract for sale, or it may involve a development agreement.
Mr Bubev’s evidence in chief appeared to accept this, but in cross-examination he seemed to detract from this admission.
I prefer Mr Joshua Girgis’ evidence in that regard to that of Mr Bubev’s. I should also add that Mr Joshua Girgis’ evidence was corroborated by his father.
Further, as to the credit of the two main protagonists generally, I found Mr Girgis to be an honest and straightforward witness who answered questions in a measured way. He was a witness in whom I had confidence.
Unfortunately, the same cannot be said for Mr Bubev, who I found to be an unsatisfactory witness. He was argumentative and took every opportunity to advance his case through unresponsive answers to questions posed of him in cross-examination. I directed him on several occasions to confine his answers to responsive replies, but he consistently ignored my directions. I formed the view that he was only interested in using his time in the box to advocate his case, rather than as an opportunity to assist the Court by telling the truth.
I thus accept Mr Joshua Girgis’ evidence in preference to Mr Bubev’s.
I should also add that, in my view, Mr Girgis’ evidence was in line with the inherent probabilities. I consider that this is so in relation to both the June and September meetings.
The commercial reality is that the plaintiff had two options in negotiations with the developer, namely a straight sale or a development agreement. The plaintiff chose the latter. In so doing, the parties were confronted with an Agency Agreement which was no longer fit for purpose. The June and September meetings were thus necessary so as to vary the Agency Agreement to fit with the plaintiff’s choice of agreement.
In that regard, in my view, it affords with commercial common sense that the agent would not wish to remain unpaid for his work until the development was complete and the units were sold. In addition, it was commercially necessary for the Agency Agreement to be varied to reflect how the commission would be quantified as the choice by the plaintiff of the Development Agreement deemed the simplicity of the sale price in a contract for sale as being the touchstone for payment of commission.
In summary, the evidence of Mr Girgis as to what occurred in the June and September meetings, in my view, reflected what was necessary to accommodate the commercial realities of the plaintiff’s choice of the Development Agreement route to the commission quantum and payment regime.
I should also add that Mr Bubev’s daughters, Janette and Janice, were present at the September 2018 meeting, but neither gave evidence. In the circumstances, I infer that this evidence would not have assisted the plaintiff’s case. I do not draw the same inference in relation to the failure of the plaintiff to call Mr Bubev’s wife as her absence was explained.
[35] … The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption “that the parties … intended to produce a commercial result”. A commercial contract is to be construed so as to avoid it “making a commercial nonsense or working commercial inconvenience”.
[46] The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.
[47] In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.
[48] Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.
[49] However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding “of the genesis of the transaction, the background, the context [and] the market in which the parties are operating”. It may be necessary in determining the proper construction where there is a constructional choice. …
[25] …The enquiry is primarily directed at the contractual language, but the circumstances addressed by a contract and the commercial purpose and objects intended to be secured by the contract will also inform the assessment: Mount Bruce Mining at [47]. A court is entitled to approach the task of construing the commercial contract on the assumption that the parties intended to produce a commercial result or to avoid it making commercial nonsense or working commercial inconvenience: Mount Bruce Mining at [51]; Woodside Energy at [35].
Thus, as to pre-contractual communications, evidence of prior negotiations is admissible to the extent that such evidence establishes objective facts known to both parties, and the subject matter of the contract, while evidence reflecting the subjective intentions of the parties is inadmissible for the purpose of determining the meaning of the contract (unless it demonstrates knowledge of surrounding circumstances).
Although the Agency Agreement was in a standard form, the evidence in this case demonstrates that it was ultimately used in circumstances for which it was not designed. In my view, for this reason, the objective context and purpose of the contract, as known to the parties, is relevant in construing the terms of the Agency Agreement.
The defendants contended that it is clear that the objective purpose of the Agency Agreement was to provide for the engagement of the agent and the payment of commission, in circumstances where the plaintiff had sought to engage the agent to assist with either a sale of the Property or the organising of a development arrangement. They further contended that there were no clear words to suggest that the reference to ‘binding contract’ in the Agency Agreement was to only apply in the event the plaintiff elected to proceed on the basis of an orthodox contract for sale, rather than the Development Agreement. They pointed out that the plaintiff’s construction would lead to the unlikely conclusion that if the plaintiff elected to follow the Development Agreement route, the defendants would have no entitlement to any commission.
I consider that the defendants’ contentions in respect of the issues of contractual construction are correct.
In my view, the hypothetical reasonable businessman postulated in the authorities would be aware that the parties at the time of entry into the Agency Agreement knew that it might be applied in two quite different situations; namely, an orthodox contract for sale of land or a development agreement. A decision as to the route to be taken in this regard had not been made by the plaintiff and the Developer. Consequently, in my view, the reasonable businessman would attribute a meaning to the words ‘binding contract’ of sufficient breadth to allow them to apply to both an orthodox contract for sale and a development agreement.
Further in my view, the reasonable businessman in possession of the relevant background facts would not consider that the words ‘binding contract’ could only mean an orthodox contract of sale. Additionally, the hypothetical reasonable businessman would find that conclusion commercially absurd as it would result in the proposition that the plaintiff, by its own election, could decide whether a commission was payable at all.
As is well-known, the Court, in construing a contract, will attempt to construe it in a manner which avoids commercially absurd outcomes (see Hide & Skin Trading v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310 at 313-4 per Kirby JA (as his Honour then was)).
No doubt, the reasonable businessman would also realise that if the development agreement route was followed, the Agency Agreement would require variation, which is precisely what occurred.
I now turn to the topic of the oral variations to the Agency Agreement.
The ascertainment of the existence and terms of an oral contract are questions of fact, and, as such, consideration of surrounding circumstances and post-contractual conduct is permissible in determining whether the oral component of the contract was formed and, if so, its terms. In such cases, I should add that the mere fact of the existence in a written contract of a clause requiring variations to be in writing does not preclude the parties from reaching an oral agreement so as to vary the contract.
The defendants submitted that the evidence clearly discloses that, following the completion of the agent’s services, the parties entered into an oral agreement on 28 September 2018 by which the agent’s remuneration was fixed at $194,000 (a reduction from 2% to 1.88% of the value of the transaction), and a time for payment was agreed as to the two tranches of payment.
As I have earlier indicated, in my opinion, a contractual variation of this type was essential once the plaintiff decided that the transaction would follow the Development Agreement route. This is so as, following the election of the plaintiff to pursue the Development Agreement route, the standard form Agency Agreement was no longer fit for purpose.
(1) it must be reasonable and equitable;
(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;
(3) it must be so obvious that ‘it goes without saying’;
(4) it must be capable of clear expression;
(5) it must not contradict any express term of the contract.
The defendants argued that, as the Agency Agreement was entirely effective without the implied terms, they were not necessary to give business efficacy to the contract. If the plaintiff had wished to dispute the invoices, it merely needed to point to its assertion of an absence of an entitlement to commission. The defendants argued that it was not necessary for the Court to import a term preventing the issuance of an invoice where no commission was payable.
I agree with the defendants’ submission. I should also add that, even if implied terms such as those asserted by the plaintiff existed, they would not have been breached as, in my view, the commission was contractually payable.
The defendants contended that s 55 of the Act is couched in terms which have, at times, been described as ‘draconian’, but drew attention to the fact that those draconian characteristics are now subject to relief from disentitlement by virtue of the provisions of s 55A.
The defendants submitted that, even if the plaintiff is successful in establishing non-compliance with s 55 of the Act, they should be granted relief pursuant to s 55A. This was pleaded by way of cross-claim.
Section 55A provides as follows:
(1) A court or tribunal before which relevant proceedings are taken may order that commission or expenses are wholly or partly recoverable by a licensee who would otherwise not be entitled to the commission or expenses (under section 55) because of
…
(b) a failure of the relevant agency agreement to comply with the requirements of the regulations.
…
(3) A court or tribunal is not to make such an order in circumstances of a failure of the agency agreement to comply with the requirements of the regulations unless satisfied that-
(a) the failure is a minor failure, and
(b) no loss has been suffered as a result of the failure by the person for whom or on whose behalf the services concerned were performed, and
(c) failure to make the order would be unjust…
In my view, it is important to note that s 55A is clearly beneficial legislation and as such is to be construed liberally (Bull v Attorney-General (NSW) (1913) 17 CLR 370 per Isaacs J). Ambiguous provisions in such legislation are to be interpreted in a manner favourable to those who are to benefit from the legislation (R v Kearney; Ex parte Jurlama (1984) 158 CLR 426 at 433).
Accordingly, in my view, s 55A must be construed favourably to the agent who seeks the relief which it offers.
In the present circumstances, the relevant failure in respect of the Agency Agreement is said to be the failure to record the name of the licensee (however, as I have earlier indicated, the licensee’s number was included).
In my view, that omission was technical. In substance, the plaintiff at all times knew and dealt with Mr Girgis personally. Indeed, the plaintiff was introduced and referred to Mr Joshua Girgis by his father. Mr Bubev had known Mr Girgis’ father for more than 20 years. Mr Bubev decided to work with Mr Girgis because of that referral. Mr Girgis was the only person Mr Bubev dealt with on behalf of the first defendant. Mr Girgis was licensed at all material times and the first defendant’s corporate licence was in place by the time any services were performed that gave rise to commission. Indeed, notwithstanding that Mr Girgis’ name did not appear, Mr Bubev saw Mr Girgis write out the terms of the Agency Agreement, and personally sign it.
In my view, in the circumstances of this case, the omission of Mr Girgis’ name from the Agency Agreement is a ‘minor failure’ as contemplated by s 55A(3)(a) of the Act.
It should also be noted that the plaintiff has not identified any loss arising from the failure to include Mr Girgis’ name on the Agency Agreement, as is required by s 55A(3)(b). It also should be noted that the omission of Mr Girgis’ name did not mislead or prejudice the plaintiff. The plaintiff knew at all times that Mr Girgis was acting on his behalf and was doing so through his company, the first defendant, and made two voluntary tranche payments at the direction of the second defendant to the first defendant without protest.
The defendants submitted that it would be unjust to refuse relief under s 55A in circumstances where the agent introduced the counterparty, negotiated the Development Agreement, and delivered substantial commercial benefit pursuant to the Development Agreement (including the $700,000 paid at execution and the suite of contractual rights). I agree with this submission.
The plaintiff argued that what it referred to as the ‘gateways’ to s 55A were not applicable. It so submitted reliant on the fact that the agreements of June and September 2018 were not in writing. I do not accept this argument for the following reasons.
In my view, the plaintiff’s argument proceeds on a misinterpretation of s 55(1)(a), which is in the following terms:
(1) A licensee is not entitled to any commission or expenses from a person for or in connection with services performed by the licensee in the capacity of licensee for or on behalf of the person unless—
(a) the services were performed pursuant to an agreement in writing (an agency agreement) signed by or on behalf of—
(i) the person, and
(ii) the licensee…
In my view, the agency services in the present case were ‘performed pursuant to an agreement in writing’. The defendants performed their services pursuant to the written Agency Agreement, signed by both the plaintiff and the second defendant as licensee. On the defendants’ case, to the extent there was any oral variation at all, it occurred on 28 September 2018, after the completion of the agent’s services. In my view, the plaintiff’s contention that an oral agreement to compromise a payment would disentitle an agent from receipt of any commission is inconsistent with the text, objects and purpose of the Act.
That an agency agreement can be partly in writing and partly oral was accepted by the High Court in Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351. That case concerned the equivalent legislation in Queensland. The plaintiff attempted to distinguish the present case from Moneywood on that basis. The attempt to distinguish Moneywood, in my view, was unsuccessful. McHugh J at [42] made clear that a written agency agreement, as long as it was in writing, could be orally varied and still be enforceable at the suit of the agent. His Honour stated:
[42] No doubt the Queensland legislation seeks to achieve the same purposes although it leaves much to be desired in terms of protecting a principal. Thus, unlike the Statute of Frauds and its analogues, it does not require the whole of the terms of the agency contract to be in writing. Nor does it require the written appointment to exist before the completion of the transaction. All that s 76(1)(c) requires is that “some writing or connected writings exist evidencing the creation of the relationship of principal and agent in respect of the transaction pursuant to an oral contract”. A document complies with s 76 if it is signed by the principal before action is brought and evidences the transaction. It is not necessary that the writing constitute the appointment as agent for the specific transaction, as the judgment of Chesterman J in the Court of Appeal might be taken to suggest. It is enough that before action there exists some writing that evidences the appointment of the agent in respect of the transaction that is the subject of the claim for commission.
Accordingly, I make the following Orders:
Judgment and verdict for the defendants against the plaintiff.
Judgment and verdict for the cross-claimants against the cross-defendant.
That the defendants’ commission be wholly recoverable by the defendants, notwithstanding any failure of the Agency Agreement to comply with the requirements of the Property*,* Stock and Business Agents Act 2002 (NSW) and the Property, Stock and Business Agents Regulation 2014 (NSW).
That the plaintiff/cross-defendant pay the defendants’/cross-claimants’ costs.
**********
J & J Investments (NSW) Pty Ltd
Home Buyers Agency Group Pty Ltd [2025] NSWDC 494
(1977) 180 CLR 266
(1913) 17 CLR 370
(2014) 251 CLR 640
(1990) 20 NSWLR 310
(1984) 156 CLR 41
(2001) 202 CLR 351
(2015) 256 CLR 104
(1984) 158 CLR 426