Lauderdale v Cairns [2011] NSWSC 29

Supreme Court New South Wales

Medium Neutral Citation: Lauderdale v Cairns [2011] NSWSC 29 Hearing dates: Monday 7 February 2011 Decision date: 08 February 2011 Jurisdiction: Equity Division Before: Associate Justice Macready Decision: I make orders 1 and 2 in the originating process filed 23 November 2010. Catchwords: CORPORATIONS LAW - Application to set aside statutory demand - Claim for commission by a real estate agent - Held there was an off-setting claim based upon the agent's actions in acting as the purchaser's agent without informing the vendor for whom he also acted - Demand set aside Category: Principal judgment Parties: Lauderdale Project Pty Limited (Plaintiff) Cairns Property Consultants Pty Ltd (Defendant) Representation: Counsel: Mr D Klineberg (Plaintiff) Mr D Meltz (Defendant) Solicitors: Levitt Robinson (Plaintiff) MacGillivrays (Defendant) File Number(s): 2010/389942

Judgment 1HIS HONOUR: This is an application to set aside a statutory demand dated 2 November 2010 for an amount of $148,500 served on the plaintiff by the defendant. The subject matter of the demand is a claim for commission payable under a Real Estate agency agreement dated 29 January 2010. 2The ground advanced to set aside the demand is the plaintiff has an offsetting claim based on misleading and deceptive conduct in relation to the agency agreement and the negotiation of the sale which ensued.

Background 3Prior to January 2010 the plaintiff owned a property at Boat Harbour Drive, Hervey Bay in Queensland. Mr Hooley was the principal of the defendant Real Estate company and he was aware in late 2009 that the property was not available as it was under an offer to a purchaser. He became aware that it was available for sale in January 2010. In late January 2010 he discussed with Mr Sanchez of the plaintiff company as to whether it was for sale. He said he had an interested purchaser who wanted to secure the agency agreement with the vendor before he proceeded further. 4This was agreed to and an agency agreement was entered into on 29 January 2010. Further, even before the agreement was signed, on the day before Mr Hooley had received an offer from the purchaser to pay $7 million for the property. He sent it to Mr Sanchez and it was in this form: " Offer to Purchase 200 Boat Harbour Drive, Pialba (Hervey Bay) We confirm that we wish to make the following offer to purchase: