White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817

Supreme Court New South Wales

Medium Neutral Citation: White Pointer Investments Pty Ltd v Creative Academy Group Pty Ltd [2023] NSWSC 817 Hearing dates: 20, 22 March 2023, further submissions 2, 5, 11 and 30 May 2023 Date of orders: 25 July 2023 Decision date: 25 July 2023 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Judgment against first defendant with costs. Catchwords: CONTRACTS — plaintiff offers to source childcare sites for the defendants at a "boozy" lunch — eight sites sourced in NSW and ACT — whether there was an oral contract – principles at [204]-[206] — whether to disregard evidence given consumption of alcohol, at [207] — post-contractual conduct corroborates oral contract — whether oral contract varied – plaintiff agreed to a series of indulgences, which were not variations for want of consideration, at [232]. CONTRACTS — sufficiency of consideration — defendants made settlement offer that was accepted — offered to pay an amount early instead of a larger amount already due — whether offer supported by sufficient consideration — principles at [235]-[237] — no tangible benefit — whether consideration in recording the agreement in writing — parties had already recently recorded their agreement — whether consideration by release of plaintiff from claims under Property and Stock Agents Act 2002 (NSW) and Agents Act 2003 (ACT) — parties then unaware of any issue with plaintiff's real estate licence – no consideration where licensing issue not in parties' contemplation at the time of formation – principles at [246]-[247]. REAL ESTATE AGENT – whether plaintiff precluded for recovering fees as no real estate agent licence – Property and Stock Agents Act 2002 (NSW) s9(2) – Agents Act 2003 (ACT) s 23 – whether should take into account other services for which no fee charged, at [33]-[35] – whether plaintiff "acting as agent" – principles at [260]-[266] – acted as agent for NSW site – whether "negotiating with", at [278] – meaning of "inducing or attempting to induce" under Agents Act 2003, s8(2)(b) at [279]-[287] – inducement is of the counterparty, not the principal – plaintiff did not induce counterparty – plaintiff entitled to recover fees for ACT sites. RESTITUTION – money had and received – whether defendants entitled to restitution of money paid under contract for NSW site due to plaintiff's breach of Property and Stock Agents Act – principles at [314]-[319] – breach of Property and Stock Agents Act did not render contract unenforceable per se – legislation punished agents directly – no total failure of consideration – mistake – no entitlement to restitution for payments made under valid contract, at [321]-[322] – no evidence that defendants were mistaken or that mistake was causative of payments made, at [324]. CORPORATIONS — pre-incorporation contracts — s 131, Corporations Act 2001 (Cth) — special purpose vehicles later incorporated to enter into leases of childcare sites — plaintiff asked to invoice special purpose vehicles — principles at [221]-[224] — ratification — although common practice to set up companies for each site, no discussion of special purpose vehicles at time of oral contract — whether special purpose vehicles reasonably identifiable with company on whose behalf oral contract was entered into — requirements of s131 not established. Legislation Cited: Property and Stock Agents Act 2002 (NSW) ss 3(1), 3A, 8, 9 Corporations Act 2001 (NSW) s 131 Agents Act 2003 (ACT) ss 8, 18, 23 Cases Cited: ACCC v Bluescope Steel Ltd (No 5) [2022] FCA 1475 Australian Woollen Mills Pty Ltd v Commonwealth [1954] HCA 20; (1954) 92 CLR 424 Aztech Science v Atlanta Aerospace (Woy Woy) [2005] NSWCA 319 B J McAdam Pty Ltd v Jax Tyres Pty Ltd (No 3) [2012] FCA 1438 Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Breusch v Watts Development Division Pty Ltd (1987) 10 NSWLR 311 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2008] NSWSC 801 Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2019] NSWCA 120 Commissioner of State Revenue v Viewbank Properties Pty Ltd [2004] VSC 127 David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 353; (1992) 175 CLR 353 Director of Public Prosecutions for Victoria v Le [2007] HCA 52 Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498 Freehold Land Investments Ltd v Queensland Estates Pty Ltd (1970) 123 CLR 418 GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd (2003) 128 FCR 1; [2003] FCA 5 Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336 Gnych v Polish Club Ltd (2015) 255 CLR 144; [2015] HCA 23 Grant v John Grant and Sons [1954] HCA 23; (1954) 91 CLR 112 Guan v Lui [2021] NSWCA 65 Haigh v Brooks (1839) 10 Ad & El 309; (1839) 113 ER 119 Hawk Australia Pty Ltd v George Ambrose Commercial Pty Ltd [2007] NSWSC 1150 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 International Harvester Co of Australia Pty Ltd v Carrigan's Hazeldene Pastoral Co (1958) 100 CLR 644 Jenkins v Kedcorp Pty Ltd [1999] QCA 452; [2002] 1 Qd R 49 John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 JR Consulting & Drafting Pty Ltd v Cummings (2016) 239 ALR 625 Kennedy v De Trafford [1897] AC 180 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Larkin v Girvan (1940) 40 SR (NSW) 365 Lendlease Real Estate Investments Ltd v Charter Hall Retail Management Ltd [2011] NSWSC 1624 Lym International Pty Limited v Marcolongo (2011) 15 BPR 29,465; [2011] NSWCA 303 Mathews Capital Partners Pty Ltd v Coal of Queensland Holdings Ltd [2012] NSWSC 462 Newitt v Leitch (1997) 6 Tas R 396 Payne v Parker [1976] 1 NSWLR 191 Persad v Singh [2017] UKPC 32 Peterson v Moloney (1957) 84 CLR 91 Queensland Phosphate Pty Limited v Korda and Shepard (as joint and several liquidators of Legend International Holdings Inc (in liq)) [2017] VSCA 269 R v Thiyagarajah [2019] SASC 84 RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56 Rogers v Kabriel [1999] NSWSC 3 Ryde Developments v The Property Investors Alliance [2017] NSWSC 436 SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56 Schwartz v Hadid [2013] NSWCA 89 Scott v Davis (2002) 204 CLR 333 Searle v Commonwealth of Australia (2019) 100 NSWLR 55; [2019] NSWCA 127 Sultana Investments Pty Ltd v Cellcom Pty Ltd (No 1) [2008] QCA 357; [2009] 1 Qd R 589 Sunlink Group Pty Ltd v Lui [2019] NSWSC 803 The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2022] NSWSC 1081 Watson v Foxman (1995) 49 NSWLR 315 Wigan v Edwards (1973) 1 ALR 497 Williams v ATM & CPA Pty Limited [2015] NSWSC 703 Texts Cited: Ian Jackman, Varieties of Restitution (Federation Press, 2nd Edition) J W Carter, Contract Law in Australia (LexisNexis Butterworths, 7th Edition) K Mason, J W Carter and G J Tolhurst, Restitution Law in Australia (LexisNexis Butterworths, 4th Edition) N C Seddon and R A Bigwood, Cheshire & Fifoot Law of Contract, (LexisNexis Butterworths, 11th Australian Edition) Category: Principal judgment Parties: White Pointer Investments Pty Ltd (Plaintiff) Creative Academy Group Pty Ltd (First Defendant) Wonderschool (Conder) Pty Ltd (Second Defendant) Wonderschool (Dickson) Pty Ltd (Third Defendant) Wonderschool (Taylor) Pty Ltd (Fourth Defendant) Wonderschool (Throsby) Pty Ltd (Fifth Defendant) Wonderschool (Woden) Pty Ltd (Sixth Defendant) Simon Larcombe (Seventh Defendant) Representation: Counsel: Mr I Pike SC / Mr CE Bannan (Plaintiff) Mr R Newlinds SC / Mr PD Reynolds (First to Seventh Defendants)