Kalfine Pty Ltd t/as Wilkinson Real Estate Agency v Hill [2006] NSWLC 29

Local Court of New South Wales

CITATION: Kalfine Pty Ltd t/as Wilkinson Real Estate Agency v Hill [2006] NSWLC 29 JURISDICTION: Civil PARTIES: Kalfine Pty Ltd t/as Wilkinson Real Esatate Agency Kenneth Hill FILE NUMBER: 11696/05 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 07/31/2006 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Contract - Indemnity clause - Interpretation of clause "in course of or arising out of the proper performance or exercise of any of the powers duties or authorities of the agent - Onus on agent - How proved LEGISLATION CITED: Colliers Jardine Pty Ltd v Castle Hill Mall Properties Pty Ltd (2005) NSWCA 311 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 CASES CITED: B.C.S. Strata Management Pty Ltd t/as Body Corporate Services v Robinson & Anor (2004) NSWCA 80 Smith & Ors v Roach & Ors (No. 2) (2004) NSWCA 463 State of New South Wales v Tempo Services Pty Ltd (2004) NSWCA4 George Halmay v Baryy Michael Haiser t/as Figtree Quality Meats (Nielson DCJ) Wollongong 3/12/04 Mr D A Priestley - Counsel REPRESENTATION: Thompson Playford - Solicitors Mr S Torrington - Counsel Johnstone Robinson - Solicitors ORDERS: Judgment and verdict for the defendant. I would propose that the plaintiff pay the defendant's costs and disbursements as agreed. In default of agreement within 28 days the costs are to be assessed under the Legal Profession Act.

Reasons for Decision BACKGROUND TO PROCEEDINGS 1 Kenneth Hill purchased a property known as Units 1 and 2, 30 Pitt Street, Richmond in 1999. Settlement took place around 10 December 1999 and on that date Mr Hill (hereinafter referred to as either 'Mr Hill' or 'the Owner') entered into a Management Agency Agreement with Kalfine Pty Ltd t/as Wilkinson Real Estate Agency (hereinafter referred to as 'the Agents'). The form of Management Agency Agreement was that approved by the Real Estate Institute of New South Wales. The Owner appointed the Agents exclusively to let and manage the premises. Those premises consisted of an upstairs flat which was leased to Anthony Tramontano and a downstairs section was leased as a general store. 2 The tenant Anthony Tramontano alleged that on 24 March 2000 he was electrocuted while turning a light switch on at the property. He sued the Owner for damages claiming $750,000. The Owner had a public risk policy of insurance with QBE Mercantile Mutual Limited. Solicitors Johnstone Robinson were instructed by the Insurance Company to act on his behalf. The Owner's policy of insurance excluded any liability assumed by way of contract, such as an indemnity under a Management Agency Agreement. 3 Mr Tramontano, the plaintiff in the injury claim, filed a Motion in the District Court on 20 August 2004 seeking an extension of time to bring proceedings against a proposed second defendant being the Agent, the plaintiff in this matter, Wilkinson Real Estate Agency. The Agents had a professional indemnity policy with ACE Insurance Limited. The Agents had to pay an excess of $7,500 which was paid. Solicitors Thompson Playford were appointed by the insurance company to act on behalf of the Agents. They received instructions on or about 7 September 2004. The Motion was returnable on 10 September 2004. The Motion was adjourned to 8 October 2004 before. The matter was adjourned to 12 November 2004 for hearing. The plaintiff Tramontano was ordered to pay the Agent's costs occasioned by the vacation. The Motion was heard on 12 November 2004 and adjourned to 15 November 2004 when the Motion was resolved by consent, on the basis that the plaintiff's Motion was dismissed with each party to pay its own costs. The parties agreed to enter into a Deed which was subsequently done. Thompson Playford assessed their costs for acting on behalf of the Agents on the Notice of Motion at $25,000. I have prepared that summary from the evidence in the affidavits filed in this matter.