APD Technology Pty Ltd v Maximo Developments Pty Ltd [2021] FCA 678

FEDERAL COURT OF AUSTRALIA

APD Technology Pty Ltd v Maximo Developments Pty Ltd [2021] FCA 678 File number: NSD 2003 of 2018

Judge: STEWART J

Date of judgment: 25 June 2021

Catchwords: CONTRACTS – real estate agent's contract – where effective agency commission on the sale of real property was 50% of the sale price – where vendor seeks to recover the whole of the commission less an amount said to be reflective of a fair and reasonable commission – whether alleged misrepresentations by the agent as to substantial part of the commission being paid back to the buyer were made – whether the agent breached its fiduciary duty to the vendor as its agent in proposing such a commission clause – whether subsequent email communication varied or waived reliance on the terms of the agency agreement – whether estoppel defence established CONTRACTS – tort – solicitor's duty to client under retainer and at general law – whether the fourth respondent as the vendor's solicitor breached his duty to the vendor by allowing a special condition with regard to payment to the agent to form part of the sale contract – where solicitor was retained after the commission clause had already been agreed to – whether solicitor breached duty to vendor by failing to advise that commission clause was of no force or effect because it was induced by misrepresentations or unconscionable conduct – whether solicitor was aware of such conduct – whether the solicitor breached his duty to the vendor by paying the commission to the agent from his trust account INSURANCE – liability insurance – cover clause – where indemnity against "civil legal liability for any claim for compensation" – whether the first to third respondents are entitled to be indemnified for defence costs by their insurer – whether vendor's claims against the agent are for compensation or restitution – whether indemnity excluded by operation of the exclusion for dishonesty