McBride v Poolman & Associates Pty Ltd [1996] NSWCA 346

McBride v Poolman & Associates Pty Ltd

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER, BEAZLEY JJA and GILES AJA 6 September 1996

[1996] NSWCA 346

Finance broker — commission — entitled if offer of finance broadly reflected proposal for finance — on facts, held it did not.

Giles AJA. In the District Court the respondent Peter Poolman and Associates Pty Limited, now known as Duceino Pty Limited, claimed agreed commission or remuneration on a quantum meruit from the appellants or some combination of the appellants, Doctors William and Patricia McBride and McBride Pastoral Company Pty Limited, in relation to services provided as finance broker. On 7 May 1993 His Honour Judge Craigie QC ordered that there be entry of judgment in favour of the respondent in the sum of $34,251.24, which comprised $27,000 as the agreed commission plus interest, and that the appellants pay costs including costs on an indemnity basis from 4 July 1991. The order for indemnity costs was, we have been told, because of an offer of compromise.

His Honour found that the relevant term of the oral contract between the parties included that commission would become payable on receipt of an offer broadly reflecting the proposal for finance which the respondent was to prepare and submit on behalf of the appellants. That finding flowed from his Honour's acceptance of evidence given by Mr Peter Poolman that he said to Dr William McBride that the fee was deemed to have been earnedupon a receipt of a letter of offer or letters of offer which broadly reflected the terms and conditions outlined in the proposal which they would mutually agree upon. His Honour held that offers from Barclays Australia Limited and Primary Industry Bank of Australia, which I will refer to respectively as Barclays and PIBA, broadly reflected the relevant proposal, and rejected a defence that the respondent was precluded from recovering the agreed commission by s 7(1) of the Credit (Finance Brokers) Act 1984 ('the Act') for want of a written engagement.