Prestige Residential Marketing Pty Limited v Depune Pty Limited [2008] NSWCA 179

New South Wales Court of Appeal

CITATION: Prestige Residential Marketing Pty Limited v Depune Pty Limited [2008] NSWCA 179

HEARING DATE(S): 15/4/08

JUDGMENT DATE: 14 August 2008

JUDGMENT OF: Beazley JA at 1; Bell JA at 2; Mathews AJA at 68

1. Grant leave to appeal; 2. Notice of appeal to be filed within seven days of today's date; 3. Allow the appeal and set aside the verdict and judgment in the Court below; DECISION: 4. Substitute verdict and judgment in favour of the appellant in the sum of $85,800; 5. Award interest on the judgment sum from 23 June 2004 to 15 August 2008; 6. The respondent is to pay the appellant's costs of the appeal and of the trial; 7. Liberty to the parties to file consent orders to give effect to order 5; 8. Liberty to apply to Bell JA within 14 days of the date of these orders in the event of any dispute as to the quantum of interest to be paid in accordance with order 5.

CATCHWORDS: PRINCIPAL AND AGENT – action for recovery of commission by agent – sale of property – whether agent was effective cause of sale - EVIDENCE – whether judge relied on inadmissible material – whether finding of fact based on assessment of witnesses' credibility should be set aside.

LEGISLATION CITED: Property, Stock and Business Agent's Act 2002 (NSW)

CATEGORY: Principal judgment

Emmons Mount Gambier Pty Ltd v Specialist Solicitors Network Pty Ltd [2005] NSWCA 117 CASES CITED: Fox v Percy [2003] HCA 22; 214 CLR 118 LJ Hooker Ltd v WJ Adams Estate Pty Ltd [1977] HCA 13; 138 CLR 52 Moneywood Pty Limited v Salamon Nominees Pty Limited [2001] HCA 2; 202 CLR 351