Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785

New South Wales Supreme Court

CITATION : Alanbert Pty Ltd v Bulevi Pty Ltd [2001] NSWSC 785 CURRENT JURISDICTION: Equity FILE NUMBER(S) : SC 4528/97 HEARING DATE(S) : 30 August 2001 JUDGMENT DATE : 30 August 2001

Alanbert Pty Limited (P1) Bernoth Realty Pty Ltd (P2) PARTIES : Bertram Bernoth (P3) Bulevi Pty Ltd (D1) Davhand Pty Ltd (D2) JUDGMENT OF : Hamilton J

COUNSEL : A Fairbairn (P1-3) W Lawrence, a director, by leave (D1 & 2) SOLICITORS : John Saroff & Company (P1-3) W Lawrence, a director, by leave (D1 & 2) CATCHWORDS : PROCEDURE [105] - Practice under Supreme Court Rules - Directions - Definition of issues - Creation of schedule relating to accounts between parties. Alanbert Pty Ltd v Bulevi Pty Ltd [1999] NSWSC 237 CASES CITED : Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261 Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470 Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610 DECISION : Directions given.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

THURSDAY, 30 AUGUST 2001

4528/97 ALANBERT PTY LTD & ORS v BULEVI PTY LTD & ORS

JUDGMENT

1 HIS HONOUR: In this matter I have already delivered a number judgments: Alanbert Pty Ltd v Bulevi Pty Ltd [1999] NSWSC 237; Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 261; Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 470; and Alanbert Pty Ltd v Bulevi Pty Ltd [2000] NSWSC 610. A number of items of quite complex issues of accounting remain to be determined relating to the various claims and counterclaims between the parties. It was agreed this morning between Mr Fairbairn, of counsel for the plaintiffs, and Mr Wayne Lawrence, a director, who is now appearing by leave for the defendants, that the best way to advance these accounting issues was to determine first the one matter where there are in dispute the actual amounts owing between the parties, rather than the ways in which amounts determined to be owing should be set off against each other. That one matter is the issue that has been referred to throughout this litigation as "the commissions and incentives". 2 Various schedules were brought to Court by the parties this morning and, during the course of today, by way of clarification of the issues, a consolidated schedule has been prepared, a copy of which will be attached to this judgment. In the meantime, I propose to set out in this judgment the issues as to the commissions and incentives that are now outstanding between the parties. I should say that Mr Lawrence has sensibly made some concessions today in relation to a number of matters where only a few hundred dollars were in dispute and that has lessened the number of issues. 3 The consolidated schedule has a number of columns. One column shows moneys said to have been "paid" to the plaintiffs at different times. When the plaintiffs received those amounts, to some degree they received or were entitled to treat them as their own moneys as amounts owing to them, either as commission earned as real estate agents acting on the sales of the various lots, or as incentives payable in respect of the sales pursuant to the agreement between the plaintiffs on the one hand and the defendants on the other. The amounts of the commissions are set out in column 6 and the amounts of the incentive in column 8 of the consolidated schedule. 4 When the parties' final differing versions of the figures are put together in the consolidated schedule, there appear to be only a total of eight items in issue. I shall now set those items out. I shall assign them item numbers in square brackets in the order of the lot numbers of the lots they relate to. 5 Dealing with lot 2 sold to Arnold, item [1] relates to $8,200 in the paid column. The defendants contend that that amount of $8,200 was received by the plaintiffs. The plaintiffs deny that the amount was ever received. 6 In relation to lot 3 sold to Salvadore there is one item which will be numbered item [2]. That is as to the amount of commission payable which the defendants contend was $3,350 and the plaintiffs contend was $4,750. That arises in the following way. At one stage the agreement as to commission ("the old regime") was that commission was payable at the rate of 3 per cent up to $80,000 and 5 per cent over $80,000. Subsequently the agreement was varied and the new rate of commission ("the new regime") was 5 per cent on the whole of the sale price. The question in dispute is whether the commission should be calculated according to the new regime or the old regime. That depends in general terms, I gather, on the date which is to be taken as the date of sale for the purpose of calculating the commission. This dispute applies to other items as well, and I shall call it the "the rates dispute". 7 The next lot in relation to which there are disputed items is lot 4 sold to Bardwick. In relation to that lot there are three disputes. Item [3] relates to the amount paid, which is claimed by the defendants to be $9,000 and by the plaintiffs to be $5,100 only, leaving a difference of $3,900 in dispute. Item [4] relates to the amount of commission. Whether the proper amount of commission was $3,400 or $5,000 turns on the rates dispute. Item [5] relates to what incentive was payable. The defendants concede an incentive of $1,500, but the plaintiffs claim an incentive of $4,000. 8 There is no dispute in respect of lots 5, 6 and 7. The next lot in relation to which there is a dispute is lot 8 sold to Marsden. Item [6] relates to the commission payable on this sale. The plaintiffs claim commission of $4,500, the defendants deny any entitlement to commission. This depends not on the rates dispute but on whether or not this sale, which was not effected by the plaintiffs but by another agent, fell within the period of an exclusive agency agreement so as to entitle the plaintiffs to commission, although they were not the selling agents. That turns on whether or not the period of the exclusive agency is to be taken as having been extended by agreement between the parties. 9 In relation to lot 9 sold to Bray there is one item, item [7]. That relates to the question of an incentive. The plaintiffs claim an incentive payment of $2,150 and the defendants deny any entitlement to incentive. 10 The last item, item [8], is in relation to lot 10 sold to Cassar. It relates to the amount of payment. The defendants say that $10,550 was paid. There is indeed no doubt that that sum was paid. The plaintiffs say that they paid $2,626 to the purchaser by way of loan to assist the purchaser to pay stamp duty. They say that they ought be entitled to take that sum out of account as paid to them, treating the paid amount as $7,924 only. The defendants say that any loan to the purchaser was a private transaction after they had paid the money to the plaintiffs, the payment was not authorised by the defendants and the amount paid by the defendants ought not be treated as diminished by that amount. 11 I am proposing to stand the matter over to a further day for final evidence and submissions relating to these eight items. Mr Fairbairn objects to this course. He says that, insofar as the course is necessitated by Mr Lawrence desiring to bring further evidence, Mr Lawrence has had plenty of time to bring evidence and there should not be an adjournment at this stage to enable him to bring more. The evidence that Mr Lawrence wants to bring is particularly evidence as to whether or not the $8,200 and the $3,900 disputed in items [1] and [3] were in fact paid, although I do not propose to limit the further evidence that may be brought. There are two reasons why I do not need to give any earnest consideration to Mr Fairbairn's application. One is that he himself has amended the plaintiffs' claims set out above in a number of ways today, including making an incentive claim not previously made, which Mr Lawrence has not had an opportunity to consider, so that that also contributes to the need for the matter to go over. However, more important is that the sorting of the issues which has occurred today has taken the available day up until now, about 3.30 pm, and the hearing on these matters cannot in any event be concluded today. The question of whether or not the matter ought go over is therefore quite academic. Go over it is going to, simply by force of circumstances. 12 I shall stand the matter over to a day in the first week of October for mention, namely, Wednesday, 3 October 2001 at 9.30am. The purpose of this mention is to assign a further day for hearing. At the moment I do not have any hearing days available for the balance of this year. However, it may be that by that time there will be a settlement of a long running case and I shall be able to give a day from that source to the further hearing of these proceedings. If I have any substantial settlement before that time, I reserve to myself the liberty to put the matter in for earlier mention to assign a date. 13 I direct that both sides on the next occasion assemble in a folder, under numbered tabs corresponding to the item numbers in square brackets which I have assigned in the course of this judgment, copies of all evidentiary material which they seek to have me advert to in determining each item. If, when they come to a later item, the matter has been placed under an earlier tab, they need not recopy it, but will be permitted to refer back to the earlier tab in the course of argument. I direct the parties deliver to each other and my Associate the folders of material on or before 27 September 2001.