Beyond 2000 Investments Pty Ltd v Ben Boyd Real Estate Pty Ltd [2016] NSWCATCD 19

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Beyond 2000 Investments Pty Ltd v Ben Boyd Real Estate Pty Ltd [2016] NSWCATCD 19 Hearing dates: 2 February 2016 Decision date: 15 March 2016 Jurisdiction: Consumer and Commercial Division Before: S. Thode, Senior Member Decision: 1. The respondent is to pay the sum of $44,000.00 to the appellant forthwith.

2. The respondent is to pay the applicant's costs on an ordinary basis as agreed or assessed in matter COM 15/58139. Catchwords: Civil and Administrative Tribunal Act, 2013; Property, Stock and Business Agents Act 2002 Legislation Cited: Civil and Administrative Tribunal Act, 2013; Property, Stock and Business Agents Act 2002 Category: Principal judgment Parties: Beyond 2000 Pty Ltd (applicant) Ben Boyd Real Estate Agent Pty Ltd (respondent) Representation: Mr Gilbert solicitor of Gilberts Legal Mr Kendell solicitor File Number(s): COM 15/58139 Publication restriction: Nil

REASONS FOR DECISION

Orders 1. The respondent is to pay the sum of $44,000.00 to the appellant forthwith. 2. The respondent is to pay the applicant's costs on an ordinary basis as agreed or assessed in matter COM 15/58139.

Background 1. The applicant is a company that entered into dealings with Ben Boyd Real Estate Agent Pty Ltd, a licensed real estate agent (the respondent). The respondent agreed to negotiate an option over premises at 125 Military Road Mosman in exchange for remuneration by the applicant. The parties had no instrument in writing other than the following heads of agreement signed and dated 29 August 2014 : 1. Transfer of option on 125 Military to Anthony Foresto or nominee. 2. Payment to Platino by Foresto of $20,000.00 for transfer. 3. Payment to BBRE by Foresto of $50,000.00 for putting the site together payable upon formalization of the transfer of option. 1. By way of background, Mr Corbett had identified a number of adjoining parcels on Military Road Mosman as a potential development site. He had sought to bring together a number of interested parties to purchase and develop the adjoining sites. That development did not transpire. Instead of brokering a multi lot development with differing stake holders, Mr Corbett negotiated the transfer of an option in respect of one property, 125 Military Road Mosman. 2. The negotiations spanned many months and negotiations were protracted. The following persons are either parties or relevant to the proceedings. Mr Foresto is the sole director of the applicant company Beyond 2000. Mr Corbett is a director of the respondent company (the respondent). Mr Revay is a director of Platino Properties Pty Ltd (Platino), Mr Corbett received payment from Platino, being described as a procurement fee, having secured an option over No 125 Military Road Mosman. Platino is a developer, who is not a party to these proceedings. Mr Corbett brokered a second option over No 125, this time transferring the option from Platino to the respondent. The option was exercised and Platino eventually sold 125 Military Road to the applicant. 3. The respondent issued an invoice and charged the respondent a fee for the transfer of the option. 4. On 5 September 2014 the applicant paid to the respondent the sum of $70,000.00 and 2 receipts were issued by the respondent to the applicant. 5. Of the $70,000.00 transferred into its accounts, the respondent retained $44,000.00 which were initially held in its trust account. 6. On 27 November 2014 the solicitor for the applicant requested the respondent refund the sum of $44,000.00. 7. On 16 December 2014 the respondent issued an invoice for $44,000.00 as a "reduced" fee for the services rendered by the respondent pursuant to the heads of agreement (the invoice). 8. The respondent retained $44,000.00 in fees and the moneys were released out of the respondent's trust account without authorisation of the applicant.