Southwell Holdings Pty Ltd v Topple

Background to Southwell's claim

1. The background is not in dispute and may be stated shortly. On or about 23 October 2019, Mr Topple and Southwell entered into an agency agreement for the sale of the Property. The agency agreement was a standard form document (the footer indicated that it was prepared by the Estate Agents Co-operative Ltd) to which details specific to the parties, the Property and their agreement were added. The agency agreement consisted of three parts, which were described at its commencement as follows: "Part 1 | Sales Inspection Report and Schedule of property particulars, services, improvements; Part 2 | The Particulars; Part 3 | Terms and Conditions."
2. Part 1 of the agency agreement comprised a form with a series of entries regarding the Principal, the Licensee, and the Property, including a schedule of property particulars. Part 1 of the agency agreement in the present case identified Mr Topple as the Principal and George Southwell as the Licensee. Mr Southwell, who was an employee of Southwell, confirmed in the Local Court that he made no personal claim to be a party to the contract or to any remuneration thereunder. The Magistrate considered that it was "clear enough as a matter of construction that the contracting party was probably objectively intended to be the plaintiff company"; and that if the requirements in the agency agreement for remuneration had been satisfied it would have been an appropriate case in which to exercise the power in s 55A(1) of the Property Stock and Agents Act 2002 (NSW).
3. Part 2 of the agency agreement addressed specific aspects of the agreement between Mr Topple and Southwell, again with certain information filled in. Item A in Part 2 provided: "A. AGENCY APPOINTMENT In consideration of the Licensee agreeing to use the Licensee's best endeavours to sell the Property the Licensee is appointed and authorised to sell the Property on behalf of the Principal, as exclusive selling agent for the sale of the Property, for the period ('the Exclusive Agency Period') commencing on 23/10/2019 [this date was inserted in handwriting] and ending at midnight on 13/2/20 [this date was inserted in handwriting] AND as non-exclusive agent for the sale of the Property for the period ('the Non-Exclusive Agency Period') commencing at the expiration of the Exclusive Agency Period and terminating upon the sale of the Property or upon termination by seven days prior written notice given by the Principal or the Licensee to the other. AND the Licensee is authorised to submit the Property for sale by public auction on 13/12/19 [this date was inserted in handwriting] or as soon as is practicable thereafter, and to appoint an auctioneer as the principal's auctioneer."
4. Item C in Part 2 provided: "C. REMUNERATION [Clause 3.1, 3.2] The Licensee's GST inclusive remuneration shall be calculated on the GST inclusive selling price in the following way: 3.3 [this figure was added in handwriting, and it was not in dispute that it was intended to be a percentage] (e.g. % of sale price; flat fee; formula e.g. a combination of % and flat fee) IMPORTANT: This is an exclusive agency agreement. This means you may have to pay the agent commission even if another agent (or you) sell the property or introduce a buyer who later buys the property. WARNING: Have you signed an agency agreement for the sale of this property with another agent? If you have you may have to pay 2 commissions (If this agreement or the other agreement you have signed is a sole or exclusive agency agreement)."
5. At the conclusion of Part 2, immediately before the parties' signatures, was an acknowledgment and confirmation that "before signing this agreement the Licensee and the Principal/s have read and understood and agree to the terms and conditions in Part 3 of this agreement".
6. Clauses 3.1 and 3.2, to which the heading of Item C referred, are in Part 3 of the agency agreement. Clause 3.1 provided: "3.1 Remuneration - The Licensee shall be entitled to the remuneration set out in Item C of the Particulars ('the Remuneration') in the following circumstances (whether or not the Licensee is the effective cause of sale): (a) If during the Exclusive Agency Period the Principal enters into a contract (which includes by way of an option being exercised) for the sale of the Property, or of an interest in the property, to any person (including a co-owner), whether or not that person was introduced to the Principal or to the Property by the Licensee. (b) If the Principal is a corporation - then in addition, if during the Exclusive Agency Period any person acquires by allotment, or enters into a contract (which includes by way of exercise of an option) to acquire by allotment or to purchase (either alone or jointly with another or others), one or more shares, or an interest in one or more shares, in the capital of the Principal, whether or not that person was introduced to the Principal or to the Property by the Licensee. (c) If a person has been effectively introduced to the Principal or the Property by the Licensee during the Exclusive Agency Period or the Non-Exclusive Agency Period, (including another person who is introduced to the Principal or the Property by such person), and that person, either during the Non-Exclusive Agency Period or thereafter, enters into a contract to purchase the property, or an interest in the property (which includes by way of exercise of an option; and includes whether it be alone or jointly with another or others). (d) If the Principal is a corporation - then in addition, if a person has been effectively introduced to the Principal or the Property by the Licensee during the Exclusive Agency Period or the Non-Exclusive Agency Period (including another person who is introduced to the Principal or the Property by such person), and that person, either during the Non-exclusive Agency Period or thereafter, acquires by allotment, or enters into a contract (which includes by way of exercise of an option) to acquire by allotment or to purchase (either alone or jointly with another or others), one or more shares, or an interest in one or more shares, in the capital of the Principal."
7. Clause 3.2 was more relevant to the argument that Southwell put in the Local Court. For completeness, it provided: "3.2 When Remuneration is Due and Payable - The Remuneration is due and payable by the Principal to the Licensee: (a) Immediately upon completion of the sale of the Property; or (b) the Principal and the Purchaser entering into a mutual agreement (whether written or verbal) to terminate or rescind the contract or otherwise not proceed with the sale; or (c) If the sale is not completed owing to the default of the Principal after the parties have entered into a binding contract; or (d) upon the termination of the contract by the Principal as a result of the default of the Purchaser and the Remuneration is the same or less than the amount of the deposit which is forfeited to the Principal."
8. On 11 December 2019, during the Exclusive Agency Period (as defined in Item A in Part 2), Mr Topple entered into a put and call option deed for the Property with Byron and Lea McIntyre. An email of that date from a paralegal at Mr Topple's solicitor to Mr Southwell confirmed entry into the option deed and noted, among other things, that the call option was exercisable at any time up to 31 December 2021. In the same email, the paralegal requested, on behalf of Mr Topple, that the forthcoming auction be cancelled.
9. The option deed was in evidence before me, as it was in the Local Court, although neither party submitted that the terms of the option deed were relevant to the specific question of construction that Southwell raised. Mr Topple submitted that it was not permissible to rely on the option deed to construe the agency agreement, including because it was entered into some months earlier and was a standard form contract. Southwell referred me to the option deed for its factual relevance as it was the exercise of the call option for which the option deed made provision that led to the sale of the Property and its claim for remuneration under the agency agreement. The McIntyres exercised the call option on 1 July 2021, after the expiry of the Exclusive Agency Period, and consistently with the option deed the parties entered into a contract of sale for the Property for $1,400,000. On 15 July 2021, the sale completed.
10. In its amended statement of claim in the Local Court, Southwell claimed $42,000 by way of remuneration under the agency agreement for the sale of the Property to the McIntyres, together with a claim for interest from 15 July 2021 pursuant to s 100 of the Civil Procedure Act 2005 (NSW). Southwell put its claim for the remuneration on two bases, both of which the Magistrate dismissed: 1. The Property was sold by Southwell during the Exclusive Agency Period, entitling Southwell to remuneration pursuant to cl 3.1(a). Southwell submitted to the Magistrate that Mr Topple's entry into the option deed satisfied the requirement for entry into "a contract…for the sale of the Property or of an interest in the Property" within the meaning of that clause. 2. Alternatively, Southwell satisfied cl 3.1(c) because the McIntyres had been "effectively introduced to the Principal or the Property" by Southwell as the Licensee.
11. There is limited utility in addressing the Magistrate's reasons as to the second of these issues because Southwell did not challenge his Honour's conclusion that it did not introduce the McIntyres to Mr Topple or to the Property. On the first issue, Southwell's primary submission before the Magistrate was that the option deed was properly characterised as a conditional contract of purchase of the Property which entitled it to the agreed remuneration either upon the date of entry into the option deed or upon the date of completion of the sale following exercise of the option (both of which had occurred). Alternatively, Southwell submitted that the option deed was a conditional contract for the sale of an interest in the Property. The Magistrate did not accept either of those submissions.
12. As I have noted above, although Southwell maintained in these proceedings that it was entitled to remuneration pursuant to cl 3.1(a) of the agency agreement, it did not make the same submissions about the application of the clause as it made to the Magistrate. Instead, Southwell relied on a different aspect of cl 3.1(a) and raised a different point of construction.

Southwell's argument on construction of cl 3.1(a) of the agency agreement

1. It was common ground that the agency agreement was a commercial contract and that the meaning of its terms was to be determined by "what a reasonable businessperson in the position of the parties would have understood those terms to mean", having regard to the language used, the surrounding circumstances known to them and the commercial purpose that the contract secured: Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 at [35]. As Leeming JA observed in Norton Property Group Pty Ltd v Ozzy States Pty Ltd (in liq) [2020] NSWCA 23 at [55], which also concerned an agency agreement (in that case, a buyers agency), the text is of particular significance when a document is in a standard form, although the commercial circumstances that the document addresses and the objects it was intended to secure will also guide its construction.
2. In applying those general principles, Southwell focused on the first set of parenthetical words in cl 3.1(a), which I have emphasised in the clause below: "(a) If during the Exclusive Agency Period the Principal enters into a contract (which includes by way of an option being exercised) for the sale of the Property, or of an interest in the property, to any person (including a co-owner), whether or not that person was introduced to the Principal or to the Property by the Licensee."
3. Southwell submitted that, read in context, those parenthetical words were intended to expand the scope of what constituted a contract for the sale of the Property. In its submission, the "critical question" that the parenthetical words raised was: "to what aspect of the option, adopting a businesslike construction, did the words 'Exclusive Agency Period' apply". Putting it another way in its written submissions in reply, Southwell submitted that the question was whether satisfaction of the condition in cl 3.1(a), in the case of an option being exercised, depended upon "the timing of the exercise, or the timing of the grant of the option".
4. Southwell submitted that the parenthetical words in cl 3.1(a) did not answer this question in terms. Rather, it submitted that, read in context, the parenthetical words could be construed in three ways: "(a) 'including by way of an option, whenever granted, being exercised during the exclusive agency period'; (b) 'including by way of an option, granted during the exclusive agency period, being exercised during the exclusive agency period'; and (c) 'including by way of an option, granted during the exclusive agency period, being exercised at any time'." (Underlining in original.)
5. Southwell submitted that the third construction was the correct one. It submitted that the inclusion of the words "being exercised", without any qualification as to the time of exercise, indicated that cl 3.1(a) would be satisfied if an option was granted during the Exclusive Agency Period and that option was ultimately exercised, whether the option was exercised during the Exclusive Agency Period or after its expiry.
6. Southwell submitted that the placement of the parenthetical words immediately after the word "contract" supported this construction, as did other provisions of the agency agreement, specifically cl 5.1, cl 5.5 and cl 7.1 (in Part 3). Clause 5.1 contained a warranty on the part of the Principal that the Principal had authority to enter into the agency agreement with the Licensee. Clause 5.5 contained an acknowledgement on the part of the Principal that "by signing this Agreement the Principal is precluded from selling the property himself/herself during the Exclusive Agency Period without paying the Remuneration". Clause 7.1 provided that a prospective purchaser could inspect the Property but only with an exclusive marketing agent or their nominee, and cross-referred to Item G in Part 2. Southwell submitted that these clauses highlighted that the agency agreement was concerned to ensure that the Licensee received remuneration for any transaction involving the Property that occurred during the Exclusive Agency Period, and that the construction of the parenthetical words for which it contended was consistent with that objective.
7. Southwell also submitted that the construction of cl 3.1(a) for which it contended was consistent with the broad commercial purpose of an exclusive agency period. By contrast, the first and second alternative constructions of cl 3.1(a) (see (a) and (b) in [19] above) would result in the Licensee investing money and time during the Exclusive Agency Period to no benefit, while the Principal could obtain the benefit of a sale during that period and yet avoid paying the remuneration. It submitted that only the third construction met this mischief. Southwell referred in this context to the general character of put options and call options, submitting that the former put the Principal in the position of having effectively secured a sale at the time of the option (subject to the Principal exercising the option), while the latter secured a purchase for the purchaser (subject to the purchaser exercising the option). Southwell emphasised the nature of a call option, submitting that the grant of a call option would effectively deprive the Licensee of anything to sell.
8. In its written submissions, Southwell referred to Mainteck Services Pty Ltd v Stein Huerty SA (2014) 89 NSWLR 633; [2014] NSWCA 184 ("Mainteck") at [115]-[121], in which Leeming JA discussed the circumstances in which words may "be supplied, omitted or corrected, in an instrument, where it is clearly necessary to avoid absurdity or inconsistency": Fitzgerald v Masters (1956) 95 CLR 420 at 426-7; [1956] HCA 53 ("Fitzgerald v Masters"). In oral submissions, counsel for Southwell submitted that recourse to authorities such as Mainteck was not necessary because, when read in the context of the whole agency agreement and in terms of what the parties would reasonably have understood it to mean, its preferred construction was the most reasonable construction. Nonetheless, Southwell submitted that authorities such as Mainteck confirmed the construction for which it contended, as the other two constructions it posited would deprive the Licensee of its remuneration in a manner that did not accord with reasonableness or with what the parties would expect the agency agreement to mean: 1. As to the first construction, Southwell submitted that it was unlikely that an agency agreement would be entered into if an option were granted beforehand. Relying on the nature of a call option as granting an equitable interest to the option holder which prevents an owner from selling elsewhere, Southwell submitted that there would be nothing that the Licensee was capable of selling, and no agreement could be contemplated. There would also in that circumstance be a difficulty in terms of the Principal's warranty in cl 5.1. 2. As to the second construction, Southwell submitted that the parenthetical words would have no real work to do if the option was exercised during the Exclusive Agency Period, as there would in that event be a contract of sale.
9. Mr Topple submitted in writing that the parenthetical words could be read in accordance with their ordinary meaning. So read, and read in context, the parenthetical words were directed at an option being exercised during the Exclusive Agency Period. As the words could be read in that way, and that reading constituted a reasonable and businesslike construction, there was no ambiguity, let alone ambiguity which justified supplementing those words, contrary to the position for which Southwell contended. Mr Topple relied in this regard on Jireh International Pty Ltd t/as Gloria Jean's Coffee v Western Exports Services Inc [2011] NSWCA 137, in which Macfarlan JA stated at [55] (Young JA and Tobias AJA agreeing): "…So far as they are able, courts must of course give commercial agreements a commercial and business-like interpretation. However, their ability to do so is constrained by the language used by the parties. If after considering the contract as a whole and the background circumstances known to both parties, a court concludes that the language of a contract is unambiguous, the court must give effect to that language unless to do so would give the contract an absurd operation. In the case of absurdity, a court is able to conclude that the parties must have made a mistake in the language that they used and to correct that mistake. A court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted."

Consideration

1. Accepting it was a standard form agreement, the clear purpose of the agency agreement was to achieve the sale of a property (in this case, the Property). Mr Topple appointed Southwell as his selling agent for that purpose, on an exclusive basis between 23 October 2019 and 13 February 2020 and on a non-exclusive basis thereafter, until the Property was sold or the agreement was terminated on seven days' written notice (Item A of Part 2). If Southwell satisfied cl 3.1 in Part 3 then it was entitled to the remuneration in Item C of Part 2 (save for in one case that is not presently relevant), with the remuneration being due and payable in accordance with cl 3.2.
2. Clause 3.1 contains four circumstances in which, as the chapeau to the clause states, "[t]he Licensee shall be entitled to the remuneration set out in Item C of the Particulars". Two of those circumstances, in paragraphs (b) and (d), are formulated in terms which seek respectively to mirror paragraphs (a) and (c) but are not applicable in the present case as they only apply if the Principal is a corporation. Accordingly, although the whole clause is instructive, I will refer only to paragraphs (a) and (c) below.
3. The focus of cl 3.1(a) is the occurrence of a prescribed event (entry into a contract of a particular character) in a prescribed period ("during the Exclusive Agency Period"). If the Principal (here, Mr Topple) "enters into a contract (which includes by way of an option being exercised) for the sale of the Property or of an interest in the Property" during the Exclusive Agency Period, the Licensee (here, Southwell) is entitled to remuneration irrespective of whether or not the Licensee introduced the person to the Principal or to the Property. Taking a straightforward example, if Mr Topple had introduced a buyer to the Property before the commencement of the Exclusive Agency Period, and he then entered into a contract for sale of the Property with that buyer during the Exclusive Agency Period, Southwell would have been entitled to the remuneration pursuant to cl 3.1(a) even though Southwell did not introduce the buyer to the Property.
4. Turning to the parenthetical words on which Southwell relied, reading them in context and in accordance with their ordinary meaning, they are directed to a particular mechanism by which entry into a contract for the sale of the Property or an interest may be effected: "by way of an option being exercised" (emphasis added). To answer the question that Southwell submitted was posed by the parenthetical words (see [18] above), those words are squarely directed at the timing of the exercise of an option, not the timing of the grant of the option. It is the exercise of an option that creates the binding obligation: here, a contract for the sale of the Property the subject of the agency agreement or of an interest in that Property. As Mr Topple submitted, if "an option being exercised" leads to the Principal entering into a contract of that character during the Exclusive Agency Period, the Licensee is entitled to remuneration.
5. The parenthetical words confirm that exercising an option leading to entry into a contract for sale during the Exclusive Agency Period will satisfy cl 3.1(a) whether the Principal granted the option before the commencement of that period or during its currency. Southwell questioned the likelihood of either occurrence as a matter of commercial reality, but that question was answered by the facts of the present case, with the option deed making provision for a call option period that included part of the Exclusive Agency Period. If the McIntyres had exercised the call option during that period, Southwell would have been entitled to remuneration under cl 3.1(a) in respect of the contract for sale of the Property even though, as the Magistrate found, Southwell did not introduce the McIntyres to Mr Topple or the Property. It is also possible to envisage circumstances in which an option deed is entered into before an Exclusive Agency Period. As counsel for Mr Topple submitted orally, a vendor could enter into a put option deed and also enter into an exclusive agency agreement in order to test the market. Exercise of such an option during the Exclusive Agency Period would entitle the Licensee to remuneration under cl 3.1(a). The critical point for Southwell's construction, as Mr Topple submitted, is that reading the words of cl 3.1(a) in this way does not give rise to any confusion or ambiguity.
6. This construction is also supported by the balance of the clause, specifically cl 3.1(c). The circumstance to be satisfied in cl 3.1(c) is not directed at the occurrence of an event during the Exclusive Agency Period. Rather, it creates an entitlement to remuneration if the Licensee introduces a person to the Principal or the Property during either the Exclusive Agency Period or the Non-Exclusive Agency Period. If the introduction requirement is satisfied, the Licensee is entitled to remuneration if the contract for the sale of the Property or of an interest therein is entered into "either during the Non-Exclusive Agency Period or thereafter" (my emphasis).
7. Thus, to take another straightforward example, if Southwell had introduced a person to Mr Topple or to the Property during the Exclusive Agency Period, and that person entered into a contract for sale of the Property after that period expired, Southwell would have been entitled to remuneration under cl 3.1(c). As I noted above, in the Local Court Southwell argued (unsuccessfully) that it was entitled to remuneration on this basis, because Southwell had introduced them to Mr Topple or to the Property and the McIntyres had exercised the call option and entered into the contract for sale of the Property with Mr Topple. Like cl 3.1(a), cl 3.1(c) includes parenthetical words directed at options, with a minor difference in the formulation - "(which includes by way of exercise of an option)" - which in my view confirms the meaning of the equivalent phrase in cl 3.1(a).
8. Southwell's argument that a contrary construction was productive of uncommercial and irrational results did not sufficiently bring to account the operation of cl 3.1(c). In essence, Southwell relied on a practical risk of a Licensee introducing a purchaser during the Exclusive Agency Period, only for the Principal to wait until the expiry of that period to enter into a contract with that person, as supporting its construction of cl 3.1(a). Clause 3.1(c) alleviates that risk. The two clauses operate together so as to balance the commercial risks and opportunities for the Principal and the Licensee: during the initial Exclusive Agency Period, entry into a contract for sale triggers the Licensee's remuneration entitlement, while during the Non-Exclusive Agency period (or thereafter), the Licensee can still satisfy a remuneration entitlement provided the Licensee effectively introduces the purchaser to the Principal or the Property.
9. The existence of the warranty in cl 5.1, that the Principal has authority to enter into the agency agreement, does not create a difficulty in terms of reading the parenthetical words in cl 3.1(a) in accordance with their terms. Nor do cl 5.5 or cl 7.1. As Mr Topple submitted, those clauses do not prohibit the sale of the Property by the Principal during the Exclusive Agency Period. However if, during that period, the Principal enters into a contract for sale, the Principal will be required to pay remuneration to the Licensee.
10. By contrast, notwithstanding Southwell's submission that it did not need to supplement the parenthetical words, the construction for which it contended necessarily entailed supplementing the parenthetical words in cl 3.1(a) both to incorporate the grant of an option and to expand the time for its exercise beyond the Exclusive Agency Period. Kirk JA recently summarised the applicable principles in Zhong v Guan [2024] NSWCA 300 (Payne JA and Price AJA agreeing). After referring to Fitzgerald v Masters, his Honour stated: "[34] The principle is of longstanding. Knight Bruce LJ, for example, said in Key v Key (1853) 4 De GM & G 73 at 84-85; 43 ER 435 at 439: there are many cases upon the construction of documents in which the spirit is strong enough to overcome the letter; cases in which it is impossible for a reasonable being, upon a careful perusal of an instrument, not to be satisfied from its contents that a literal, a strict, or an ordinary interpretation given to particular passages, would disappoint and defeat the intention with which the instrument, read as a whole, persuades and convinces him that it was framed. A man so convinced is authorized and bound to construe the writing accordingly. [35] Arguments of absurdity or such like might readily be made but are not easily established. Courts 'have no mandate to rewrite agreements, so as to depart from the language used by the parties, merely to give a provision an operation which, as it appears to the court, might make more commercial sense': Miwa Pty Ltd v Siantan Properties Pte Ltd [2011] NSWCA 297; (2011) 15 BPR 29,545 at [18]; Willis Australia Ltd v AMP Capital Investors Ltd [2023] NSWCA 158; (2023) 113 NSWLR 1 at [53]. [36] Moreover, the step of effectively supplying, ignoring or otherwise departing from the words or punctuation employed may only be taken if what the parties did intend - as ascertained according to established principles - is otherwise clear. The court is identifying the parties' common objective intentions; it is not making its own choices as to what their contractual relations should be… [37] The argumentative steps of establishing an absurdity, inconsistency or other obvious mistake and of identifying the intended meaning are not entirely distinct. Whether or not there is such an obvious mistake (etc) may depend upon there being some other clear intention apparent which indicates that the literal meaning was not intended. As Meagher JA and Ball J said in HDI Global [Specialty SE v Wonkana No 3 Pty Ltd (2020) 104 NSWLR 634; [2020] NSWCA 296], the two criteria 'are merely steps involved in reasoning to a conclusion' in the process of construction (at [53])."
11. On the application of those principles, for the reasons I have given above the parenthetical words do not require the supplementation for which Southwell contended. Further, and in any event, it is not clear that the parties would have intended that the parenthetical words should be read in the way that Southwell submitted they should be. That is not least because reading the parenthetical words as contemplating the exercise of an option after the expiry of the Exclusive Agency Period is not readily reconcilable with the clear focus of cl 3.1(a) upon an event occurring "during the Exclusive Agency Period".

Conclusion

1. I do not accept the construction of cl 3.1(a) of the agency agreement on which Southwell's case depended. It follows that the summons should be dismissed. Mr Topple sought his costs, which Southwell should pay in accordance with the ordinary rule.
2. Accordingly, I make the following order: 1. The summons is dismissed with costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 February 2025