APD Technology Pty Ltd v Maximo Developments Pty Ltd [2022] FCAFC 141

Federal Court of Australia

APD Technology Pty Ltd v Maximo Developments Pty Ltd [2022] FCAFC 141 Appeal from: APD Technology Pty Ltd v Maximo Developments Pty Ltd [2021] FCA 678 APD Technology Pty Ltd v Maximo Developments Pty Ltd (No 2) [2021] FCA 858

File numbers: NSD 727 of 2021 NSD 746 of 2021

Judgment of: MOSHINSKY, HALLEY AND O'SULLIVAN JJ

Date of judgment: 25 August 2022

Catchwords: EQUITY – fiduciary duty – real estate agent – where the appellant (APD) was a vendor of land – where the first respondent (MD) acted as APD's agent for the sale of the property – where the sale price at completion was $24 million plus GST – where the commission charged by MD and paid by APD was $12 million plus GST – where APD contended on appeal that MD breached its fiduciary duty to APD under an agency contract dated 12 October 2016 by procuring APD to enter into an agency contract dated 5 November 2016, under which the commission was greater – where APD contended on appeal that MD failed to disclose material matters to APD before it entered into the 5 November 2016 agency contract – whether APD's contentions represented a new case on appeal – if so, whether APD should be permitted to run that new case EQUITY – estoppel – real estate agent – where the appellant (APD) was a vendor of land – where the first respondent (MD) acted as APD's agent for the sale of the property – where APD and MD entered into an agency contract that specified a particular commission – where MD sent an email to APD setting out the commission it proposed to charge (being $12 million plus GST) – where APD replied by email that it agreed – where MD subsequently charged and APD subsequently paid a commission of $12 million plus GST – where primary judge held that APD was estopped from contending that the commission was other than as set out in the email exchange – whether the primary judge erred in so holding INSURANCE – professional indemnity insurance – where insuring clause provided cover for civil legal liability for "any claim for compensation" in specified circumstances – where claims were made against the insureds for contravention of ss 18 and 21 of the Australian Consumer Law and breach of fiduciary duty – where insureds sought indemnity for liability in respect of these claims and for defence costs – where the claims against the insureds failed at trial and on appeal – where the primary judge held that the insurer was liable for the insureds' defence costs – where the insurer argued that the claims against the insureds were properly characterised as claims for restitution or debt – whether defence costs covered by insuring clause