Kukolovski v Georges [2011] NSWSC 359

Supreme Court New South Wales

Medium Neutral Citation: Kukolovski v Georges [2011] NSWSC 359 Hearing dates: 29 April 2011 Decision date: 03 May 2011 Jurisdiction: Equity Division - Corporations List Before: Barrett J Decision: Further submissions to be made Catchwords: PRINCIPAL AND AGENT - real estate agent - agent appointed to find purchaser of property - entitlement to receive commission - where contract defines event upon which entitlement to commission arises and states circumstances in which commission is due and payable - whether agent entitled to receive commission where the event has happened but the circumstances do not exist - construction of contract - CORPORATIONS - winding up - winding up of real estate agency company - where deposit moneys received by company before winding up to be held as stakeholder - company is under an obligation to account for those moneys even though not pad into statutory trust account - but moneys not held by liquidator as trustee - PROCEDURE - where proceedings in truth adversarial are constituted as application by liquidator for judicial advice under Trustee Act and in the alternative for direction under Corporations Act - former inappropriate - latter of limited utility - need for proceedings to be reconstituted before remedies awarded Legislation Cited: Civil Procedure Act 2005, s 90 Corporations Act 2001 (Cth), Part 5.3A, s 511 Corporations Regulations 2001 (Cth) Property, Stock and Business Agents Act 2002, s 5(1)(f), s 5(3), s 55, s 88 Property, Stock and Business Agents Regulation 2003, Schedule 7 Trustee Act 1925, s 63 Cases Cited: CH Real Estate Pty Ltd v Jainran Pty Ltd [2010] NSWCA 37; (2010) 14 BPR 27,361 Commissioner of Taxation v Linter Textiles Australia Ltd [2005] HCA 20; (2005) 220 CLR 592 Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd [2002] NSWSC 710; (2002) 56 NSWLR 27 Jainran Pty Ltd v Boyana Pty Ltd [2008] NSWSC 468 LJ Hooker Ltd v WJ Adams Estates Pty Ltd [1977] HCA 13; (1977) 138 CLR 52 New South Wales Land and Housing Corporation v Sydneywide Real Estate Co Pty Ltd (1998) 9 BPR 16,565 Otis Elevator Co Pty Ltd v Guide Rails Pty Ltd [2004] NSWSC 383; (2004) 49 ACSR 531 Overmyer Industrial Brokers Pty Ltd v Campbells Cash & Carry Pty Ltd [2003] NSWCA 305; (2004) Aust Contract Rep 90-181 Terry Pfeiffer Real Estate Pty Ltd v Connors [2000] NSWSC 452 Category: Principal judgment Parties: Trajan Kukulovski as liquidator of National Andrews Pty Ltd - Plaintiff Badoui Georges, Sam Georges, Peter Georges, John Gerard George, Anna Maree Waters and Samuel Kenneth George - Defendants Representation: Counsel: Mr K D Ginges - Plaintiff Mr M Southwick - Defendants Solicitors: Clamenz Corporate Lawyers - Plaintiff Gary George & Co - Defendants File Number(s): 2011/046044