TODBERN PTY LTD v RB KERR (GROUP) PTY LTD SUPER CENTRE DEVELOPMENT CORPORATION PTY LTD v RB KERR (GROUP) PTY LTD [1989] NSWCA 211

TODBERN PTY LTD v RB KERR (GROUP) PTY LTD SUPER CENTRE DEVELOPMENT CORPORATION PTY LTD v RB KERR (GROUP) PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 4-6 April 1989, 1 September 1989 [1989] NSWCA 211

CONTRACT — oral agreement whose concluded terms were to be embodied in documents approved by the solicitor of one of the parties — whether enforceable — Masters v Cameron (1954) 91 CLR 353, Godecke v Kirwan (1973) 129 CLR 629 and Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 applied — hence parties to contract may leave even essential terms to be determined by a third party. ORDERS Each appeal is allowed; the cross-appeal is dismissed. The judgments below for the plaintiff respondent Kerr against the defendant-appellant Super Centre and for Super Centre against the defendant appellant Todbern are set aside and in lieu thereof judgments substituted for Super Centre against Kerr and for Todbern against Super Centre. Kerr must pay the costs of each defendant below, and Super Centre must pay the costs of the cross-claim. The costs payable by Kerr to Super Centre must include the costs payable by Super Centre to Todbern. Kerr must pay the costs of the appeals and cross-appeal and, if qualified, is entitled to a certificate under the Suitors Fund Act for the costs of the appeals and cross-appeal.

Samuels JA These appeals and cross-appeal stem from a judgment of Carruthers Jin the Commercial List in which he determined a claim for commission made by RB Kerr (Group) Pty Ltd ("Kerr") arising from its activities as agent in the sale of leasehold premises (a shopping centre at Hurstville) from Super Centre Development Corporation Pty Ltd ("Super Centre") to Todbern Pty Limited ("Todbern"). In the court below Kerr was plaintiff and Super Centre and Todbern respectively the first and second defendants. Super Centre, by dint of a provision in the contract of sale, claimed from Todbern an indemnity against any sums which it might be required to pay to Kerr. In the event the learned judge held that Kerr was entitled to recover from Super Centre the sum of $137,000.61 for commission and interest and that Super Centre was entitled to indemnity in this amount from Todbern.