Combined Property Consultants Pty Ltd v Mitchell [2019] NSWSC 652

Supreme Court New South Wales

Medium Neutral Citation: Combined Property Consultants Pty Ltd v Mitchell [2019] NSWSC 652 Hearing dates: 8, 9 August 2018 Date of orders: 06 June 2019 Decision date: 06 June 2019 Jurisdiction: Equity Before: Parker J Decision: The plaintiff's claim be dismissed. The cross-claim be dismissed. The plaintiff to pay the defendant's costs of the proceedings. Catchwords: CONTRACTS — Identification of terms – whether terms and conditions of written agreement form part of contract in fact reached – where clear agreement between the parties that agency agreement be "sole" rather than "exclusive" - where "exclusive" struck out and "sole" written and changes initialled – where parties did not turn their minds to further terms and conditions of written agreement which became inapposite to the "exclusive" agency agreement reached – relevance of parol evidence rule - party may prove there was in fact no agreement on particular term within an apparently complete written agreement.

CONTRACTS — Rectification — Intention — Common intention – rectification appropriate where clear mistake - parties did not avert to inclusion of term which was inapposite to their agreement – rectification appropriate to delete "exclusive" or read "exclusive" as "sole".

CONTRACTS — Construction — Interpretation - where option agreement provided for exercise of option by party or its nominee – whether purchase by exercise of option a "purchase" within meaning of agency contract so as to make the commission payable – where clause equating exercise of option with purchase appropriately excluded by construction or rectification – proper juridical analysis of an option – whether service of notice per contractual procedure brought about "purchase" within meaning of contract to make commission payable – where agency contract must be interpreted in a commercially sensible way – party exercising option cannot be seen as a "purchaser" as agency contract premised on voluntary transaction – commission not payable.