Evans v Jan [2025] QSC 31

SUPREME COURT OF QUEENSLAND CITATION: Evans v Jan [2025] QSC 31 PARTIES: STEPHEN GARY EVANS (plaintiff) v YEA LAN JAN (defendant) FILE NO/S: 2727 of 2024 DIVISION: Trial Division PROCEEDING: Claim ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 27 February 2025 DELIVERED AT: Brisbane HEARING DATE: 28 and 29 January 2025; supplementary written submissions provided 14 February 2025 JUDGE: Copley J ORDERS: 1. The claim for specific performance is dismissed. 2. The deposit of $98,500 is forfeited to the defendant with interest at the Contract Rate published by the Queensland Law Society Inc from 29 January 2024 until payment. CATCHWORDS: CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – AUTHORITY OF AGENTS – CONSTRUCTION AND EXTENT OF AUTHORITY – AUTHORITY CREATED BY OTHER MEANS – ACTS INCIDENTAL TO EFFECTIVE EXECUTION OF EXPRESS AUTHORITY – EXPRESS AUTHORITY TO NEGOTIATE – whether the defendant’s realtor had actual authority to negotiate the payment date of the deposit – where clause 10 of the REIQ Contract for Houses and Residential Land sets out the role of the defendant’s realtor as agent – where no actual authority existed CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – AUTHORITY OF AGENTS – CONSTRUCTION AND EXTENT OF AUTHORITY – AUTHORITY CREATED BY OTHER MEANS – ACTS INCIDENTAL TO EFFECTIVE EXECUTION OF EXPRESS AUTHORITY – EXPRESS AUTHORITY TO NEGOTIATE – whether the defendant’s realtor had ostensible authority to negotiate the payment date of the deposit – where the plaintiff texted the defendant’s realtor that payment of the -- 1 of 14 -- 2 remainder of the deposit would be paid the day after the due date – whether the defendant’s realtor ostensibly accepted late payment – where the defendant’s realtor did not accept late payment – where the defendant’s realtor had no ostensible authority to accept late payment – where the plaintiff unilaterally decided how and when he would pay the deposit EQUITY – EQUITABLE DOCTRINES AND PRESUMPTIONS – ELECTION – GENERALLY – whether the defendant elected to affirm the contract of sale in light of breach of an essential term – where text messages sent by the defendant’s realtor did not unequivocally elect to affirm the contract – where the defendant had no knowledge of the circumstances giving rise to the alleged exercise of election – where there was no election to affirm ESTOPPEL – ESTOPPEL BY CONDUCT – PROMISSORY ESTOPPEL – GENERAL PRINCIPLES – where the plaintiff alleges the defendant induced him to adopt an expectation that late payment of the deposit was permitted – where no promissory estoppel arises because the alleged inducement came from the defendant’s realtor, who did not act with the actual or ostensible authority of the defendant Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445 Brien v Dwyer (1978) 141 CLR 378 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 Markson v Cutler (2007) 13 BPR 25, 127 Pourzand v Telstra Corporation Ltd [2014] WASCA 14 Sargent v ASL Developments Ltd (1974) 131 CLR 634 S.C.N Pty Ltd v Smith [2006] QCA 360 The Owners – Strata Plan No 87625 v Saaib; The Owners – Strata Plan No 87625 v Alexandrova [2021] NSWSC 150 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd (t/as MobileCorp) [2019] NSWCA 32 COUNSEL: K Grimshaw for the plaintiff M Clarke for the defendant SOLICITORS: Burns Law for the plaintiff Pan & Partners Lawyers for the defendant [1] The plaintiff seeks an order for the specific performance of a contract for the sale of a residential property. The defendant resists the making of the order and by counterclaim seeks the forfeiture of the deposit provided by the plaintiff. -- 2 of 14 -- 3 [2] The plaintiff’s case for specific performance is put on two bases, success in establishing either being sufficient to warrant an order for specific performance. [3] The first basis is that the defendant made an irrevocable election to affirm the contract. The second basis is that the defendant is estopped from exercising her right to terminate the contract. [4] The plaintiff acknowledges that to succeed on either basis, he must at least establish that the real estate agent (“the realtor”) engaged by the defendant to sell the property acted within the scope of her actual or ostensible authority when she sent the contents of two text messages to the plaintiff on the morning of 24 January 2024 concerning the deposit. [5] The real issue in this case concerns whether the content of these text messages (said to be messages affirming the contract or estopping the defendant from terminating it) were sent with either the actual or ostensible authority of the defendant. The first message was sent at 8:52 am. The second was sent at 10:58 am. [6] The plaintiff recognises that if his case for actual authority or ostensible authority fails, then his case that the defendant either affirmed the contract or is estopped from terminating the contract must also fail. The issue about authority is fundamental to both affirmation and estoppel. [7] The defendant’s case is that the Court cannot be satisfied that the realtor acted within the scope of any actual authority or ostensible authority when she sent the text messages the plaintiff relies upon. The counterclaim relies on the defendant’s termination of the contract because of the plaintiff’s failure to pay the deposit when it was due. [8] For the reasons which follow, the plaintiff’s claim for specific performance is dismissed and the defendant’s counterclaim succeeds, and the deposit will be forfeited with interest. Background [9] The plaintiff was the only witness called in his case. His evidence-in-chief was confined to identifying his affidavit, which was admitted as an exhibit. The defendant’s evidence-in-chief was also confined to identifying her affidavit which was also admitted as an exhibit. [10] The plaintiff (as purchaser) and the defendant (as seller) entered into a contract in relation to a residential property at Shailer Park. The contract was in the standard form Contract for Houses and Residential Land (18th edition) approved by the Real Estate Institute of Queensland and the Queensland Law Society Inc. It included some special conditions, only one of which is said to be significant to the resolution of this case. The purchase price was $985,000. The contract provided for a deposit of $98,500. The circumstances of the payment of this deposit gave rise to this litigation. The contract was subject to a satisfactory building and pest inspection (within seven days) and to satisfactory finance (within 14 days), and settlement was to be 30 days from the contract date. The parties signed the contract by electronic means at different times of the day on 22 January 2024, with the plaintiff being the first to sign. The parties accept that the contract was formed between them on 23 January 2024 -- 3 of 14 -- 4 when the realtor sent an email advising that the property was “under contract now.” So far as the deposit was concerned, the contract required it to be paid to the realtor’s trust account “when both parties had signed.” The parties accept that this term required the plaintiff to pay the deposit on 23 January 2024 and that the plaintiff’s failure to do this breached clause 2.2(1) of the contract of sale. The deposit was not paid until 25 January 2024 when the last of four instalments was paid at 3:45 pm. Provisions of the contract asserted to be of relevance [11] In addition to the term related to the payment of the deposit, which has already been mentioned, some other provisions of the contract were identified by the parties as having significance to the issues in this case. [12] The reference schedule to the contract included Special Condition 1. It provided: 1. The parties agree that this contract may be formed by one party executing the contract that has been signed by the other party (or a photocopy or facsimile copy of that contract) and transmitting it by electronic transmission to the other party or their agent or solicitor. [13] The terms of the contract included: “(v) “Essential Term” includes, in the case of breach by: (i) the Buyer: clauses 2.2, 2.5(1), 2.5(5), 5.1 and 6.1; and … 2.2 Deposit (1) The Buyer must pay the Deposit to the Deposit Holder at the times shown in the Reference Schedule. The Deposit Holder will hold the Deposit until a party becomes entitled to it. (2) The Buyer will be in default if it: (a) does not pay the Deposit when required; … (5) The Seller may recover from the Buyer as a liquidated debt any part of the Deposit which is not paid when required. … 6.1 Time of the Essence Time is of the essence of this contract, except regarding any agreement between the parties on a time of day for settlement. … 9 PARTIES’ DEFAULT 9.1 Seller and Buyer May Affirm or Terminate -- 4 of 14 -- 5 (1) If the Seller or Buyer, as the case may be, fails to comply with an Essential Term, or makes a fundamental breach of an intermediate term, the Seller (in case of the Buyer’s default) or the Buyer (in the case of the Seller’s default) may affirm or terminate this contract under this clause. … 9.4 If Seller Terminates If the Seller terminates this contract under clause 9 ., it may do all or any of the following: … (2) forfeit the Deposit and any interest earned; … 10 GENERAL 10.1 Seller’s Agent The Seller’s Agent is appointed as the Seller’s agent to introduce a Buyer. … 10.4 Notices … (7) Notices or other written communications by a party’s solicitor (for example, varying the Inspection Date, Finance Date or Settlement Date) will be treated as given with that party’s authority.” Facts not disputed [14] At 10:46 am on 23 January 2024 the realtor sent an email attaching a copy of the signed contract to Pan & Partners Lawyers (the defendant’s solicitors) and Belinda Elliott (an employee of the plaintiff’s solicitors). Both the plaintiff and the defendant were copied into the email. The email stated “Hi All, 101B shailer rd is under contract now. We would like the buyer to deposit their 10 % today at their earliest.” [15] At 10:47 am that day, the realtor sent a text message to the plaintiff. Among other things she wrote “don’t forget to pay your 10% deposit today.” She included her agency’s bank account details below which she wrote “It’s written on the contract as well.” [16] Later that afternoon, the plaintiff was informed by his bank that he would need to personally attend the bank’s branch if he wished to increase the limit on the amount of money he could transfer, the limit being $50,000 per day. There was not sufficient time for him to do so that day and he did not transfer any money to the realtor’s trust account that day. -- 5 of 14 -- 6 [17] The defendant rang the realtor at 7:56 pm on 23 January 2024 and they had a conversation which lasted for 20 minutes. [18] At 8:52 am on 24 January 2024 the realtor sent the plaintiff a text message which said, “Hi stephen you may need to deposit today. Call me if you have any issues.” [19] At about 9:00 am the plaintiff transferred $45,000 to the realtor’s trust account. [20] At 9:05 am the plaintiff sent the realtor a text message which said “Do apologise deposit today and balance tomorrow Very sorry bank is painful to deal with.” [21] At 10:58 am the realtor sent the following text message to the plaintiff: “Ok As long as I let seller know. Two deposits today and tmr” [22] The plaintiff did not hear anything further from the realtor. On the pleadings it is admitted that the building and pest inspection commenced at about 2:15 pm that day. [23] On 25 January 2024 the plaintiff transferred the sums of $40,000 and $10,000 to the realtor’s trust account at 7:09 am and 7:36 am respectively. He arranged for his brother to transfer the remaining amount outstanding, $3,500, and that transfer occurred at 3:45 pm on 25 January 2024. In the meantime, at 1:17 pm that day the defendant’s solicitors sent an email to the plaintiff’s solicitors inviting comment about why the defendant could not terminate the contract in view of the deposit not having being paid in accordance with the contract. On 28 January 2024 the realtor informed the plaintiff via a text message that the defendant did not want to sell the house to him and was going to cancel the contract. On 29 January 2024 the defendant’s solicitors informed the plaintiff’s solicitors that the defendant terminated the contract because the plaintiff failed to pay the deposit by the due date in accordance with the contract. Plaintiff’s evidence [24] The plaintiff deposed that he believed the realtor had authority to represent the seller in all aspects of the sale due to the contract not nominating any solicitors for the seller and to the fact that all his communications had been with the realtor. Based on the text message of 10:58 am on 24 January 2024 and the absence of any further message to the contrary, he believed the defendant had agreed to him paying the deposit on 24 and 25 January 2024. Had he not received this message from the realtor he would have attended his bank on 24 January 2024 and arranged to pay the deposit in full that day. Defendant’s evidence [25] The defendant deposed that she never authorised the realtor or requested her to agree to any extension of time for payment of the deposit. She deposed that at no time did the realtor ask her to agree to an extension. [26] The defendant testified that she expected that the realtor would pass the signed contract on to her solicitors. She did not ask the realtor to email a copy of the signed contract to either her lawyers, the plaintiff’s lawyers or the plaintiff. She said she -- 6 of 14 -- 7 expected that upon receipt of the contract that her lawyer would then take the next step. She agreed that just prior to 8:00 pm on 23 January 2024 she telephoned the realtor and they had a 20 minute conversation. She did not recall the whole of their conversation but said she believed it concerned the building and pest inspection that the plaintiff had arranged for the next day. She denied that the realtor told her during the course of their telephone conversation that the deposit had not been paid that day. She denied that she asked the realtor about whether the deposit had been paid. She denied that she asked the realtor to collect the deposit from the plaintiff. Actual authority [27] In Freeman & Lockyer (a firm) v Buckhurst Park Properties (Mangal) Ltd, Diplock LJ said:1 “An ‘actual’ authority is a legal relationship between principal and agent created by a consensual arrangement to which they alone are parties. Its scope is to be ascertained by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade, or the course of business between the parties … if the agent does enter into a contract pursuant to the ‘actual’ authority, it does create contractual rights and liabilities between the principal and the contractor …” [28] The plaintiff relied on a combination of the following circumstances in order to prove that the content of the two text messages the realtor sent to him on 24 January 2024 were sent with the actual authority of the defendant. The circumstances he relied on were said to amount to a course of dealing between the defendant and the realtor supporting the inference that the realtor had actual authority to communicate in the terms that she did.2 [29] First, clause 3.1 of the contract appointing the realtor as the defendant’s realtor stated that for the commission and other fees payable by the defendant, the realtor agreed to sell the property. She remained the realtor to sell the property on 24 January 2024.3 [30] Second, as it was agreed between the parties that the contract of sale was only formed at 10:46 am on 23 January 2024 when the realtor sent the email attaching the signed contract, the fact it was the realtor who wrote the email and transmitted the signed contract meant she must have had the defendant’s actual authority to send this email. This was said to flow from Special Condition 1 in the contract of sale which, although providing that formation of the contract might occur by a party transmitting the signed contract to the other party or the other party’s agent or solicitor, did not contemplate the signed contract being sent by anyone other than a party. Third, her message in the 10:46 am email that “We would like the buyer to deposit their 10% today” was language only consistent with a demand made on behalf of the defendant. As the defendant was copied into this email she knew of its contents and did not intervene to disavow the realtor’s communication or otherwise limit her authority. She thereby acquiesced.4 1 [1964] 2 QB 480 at 502 (‘Freeman v Lockyer’). 2 Pourzand v Telstra Corporation Ltd [2014] WASCA 14 at [129]. 3 S.C.N Pty Ltd v Smith [2006] QCA 360 at [73]-[76]. 4 The Owners – Strata Plan No 87625 v Saaib; The Owners – Strata Plan No 87625 v Alexandrova [2021] NSWSC 150 at [310]. -- 7 of 14 -- 8 [31] It can be accepted that the realtor remained the real estate agent to sell the property on 24 January 2024. However, that circumstance did not confer actual authority for her to agree to arrangements for the payment of the deposit that did not accord with those provided for in the contract of sale. In Brien v Dwyer,5 Gibbs J said: “The expression ‘agent’, when used in relation to an estate agent acting for a vendor, is misleading, … Such so-called agents do not have a general authority to act on behalf of the vendor in relation to the contract … It is however clear in principle that where the contract of sale expressly provides for the payment of the deposit to the agent, the authority of the agent to receive the deposit is limited by the provisions of the contract.” [32] Conformably with this, clause 10.1 of the contract of sale stated that the seller’s agent was appointed as “the Seller’s agent to introduce a Buyer.” The Reference Schedule to the contract provided that the deposit was payable when both parties had signed and the realtor’s agency was to be the deposit holder. [33] The significance of what might be drawn from the realtor’s email attaching the signed contract as the step which formed the contract has to be assessed against any available direct evidence about the realtor’s authority. That evidence came from the defendant and it is discussed below. [34] Generally, actual authority, even implied actual authority, must be found in the conduct of the alleged principal, not the conduct of the alleged agent.6 To the extent that the realtor’s transmission of the signed contract constituted any representation of authority, it was a representation made by the realtor, not the defendant. The same can be said about the realtor’s accompanying request that, “We would like the buyer to deposit their 10% …” The use of the plural pronoun “we” when requesting that the plaintiff pay the deposit is not indicative of the email having been sent with the defendant’s actual authority. The contract of sale nominated the realtor’s agency as the deposit holder or stakeholder and the use of the plural pronoun is consistent with the request being made on behalf of the deposit holder under the contract. Under clause 2.2(1) of the contract of sale the deposit holder was to hold the deposit until one of the parties became entitled to it. [35] It can be seen then that apart from reliance on clause 3.1 in the contract of appointment, the plaintiff’s case that the realtor had actual authority largely depends upon the drawing of an inference from the absence of any response by the defendant to the realtor’s action in sending the email of 23 January 2024. [36] I am not satisfied that the absence of any response on the defendant’s part to the email of 23 January supports an inference that the realtor had actual authority to send the contents of the text messages of 24 January. The email just informed the recipients (Pan & Partners Lawyers and Ms Elliott) that a contract had been concluded and that the deposit was required. The defendant and the plaintiff were copied into the email. [37] The effect of the defendant’s evidence was that the realtor acted on her own initiative when she included the plaintiff and his solicitor’s employee, Ms Elliott, in the email 5 (1978) 141 CLR 378 at 395. 6 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 at 78. -- 8 of 14 -- 9 attaching the signed contract. She said she did not ask the realtor to do this. She did not expect her to do it. The defendant’s evidence was that she expected that the realtor would send the signed contract to her solicitors and that her solicitors would take the next step. Her evidence in this respect is consistent with the circumstance that she had, prior to the email being sent, arranged for solicitors to act for her in relation to the sale. That she had made such an arrangement is apparent from the consideration that the email was sent to Pan & Partners Lawyers. Also, the defendant’s expectation that the realtor would send the signed contract to her solicitors accorded with what the realtor did. She emailed it to the defendant’s solicitors. The fact that she also emailed it to an employee of the plaintiff’s solicitors and copied the plaintiff into that communication are not matters which cause me to doubt the defendant’s denial that she authorised the realtor to send the contract to the plaintiff. I have no hesitation in accepting as truthful her evidence that she did not ask the realtor to send the email to the plaintiff or anticipate that she would. [38] The plaintiff has failed to prove that the realtor had the actual authority of the defendant to send the content of the two text messages of 24 January 2024. Ostensible authority [39] The plaintiff contends that if actual authority has not been established, a case of ostensible authority is made out. [40] In Freeman & Lockyer, Diplock LJ said:7 “An ‘apparent’ or ‘ostensible’ authority, on the other hand, is a legal relationship between the principal and the contractor created by a representation, made by the principal to the contractor, intended to be and in fact acted upon by the contractor, that the agent has authority to enter on behalf of the principal into a contract of a kind within the scope of the ‘apparent’ authority, so as to render the principal liable to perform any obligations imposed upon him by such contract.” [41] The plaintiff says that the defendant held out or represented that the realtor had authority to send the contents of the text messages having regard to the following circumstances. First, the signed contract the plaintiff received with the email on 23 January 2024 did not identify any solicitors for the defendant. Second, no solicitors for the defendant were nominated or made known to the plaintiff until Pan & Partners advised the plaintiff’s lawyers, at 1:17 pm on 25 January 2024, that they acted for the defendant. Third, the email of 23 January 2024 which formed the contract, called for the deposit to be paid. [42] Whether considered alone or in combination, these circumstances do not establish that the realtor had ostensible authority to agree to the payment of the deposit on terms inconsistent with those provided for in the contract. The provision of the signed contract was an act done by the realtor. Her act cannot be the foundation of any ostensible authority. Again, the email just informed the recipients that a contract had been formed and the deposit was required. 7 n 1 at 502. -- 9 of 14 -- 10 [43] The contract included the defendant’s name and email address under the heading “Seller”, so the position was not that the only person the plaintiff had to deal with was the realtor. The email sent on 23 January was sent to Pan & Partners Lawyers, (as well as to Ms Elliott). That feature of it implicitly conveyed notification that Pan & Partners were the defendant’s solicitors. So again, the email did not convey that the realtor was the only person available for the plaintiff to communicate with. A reminder to pay the deposit prior to the expiration of the time for doing so said nothing of relevance about the realtor’s authority. Having regard to the content of the email of 23 January, I am not satisfied that by her silence the defendant held out or represented that the realtor had any apparent authority to send the content of the text messages. [44] The plaintiff accepts that as ostensible authority is founded in estoppel, he must show not only a representation or holding out by the defendant that the realtor had apparent authority to send the content of the text messages, but also that he relied on the holding out and that he suffered a detriment.8 He points to his evidence that he believed the realtor had authority to represent the defendant in all aspects of the sale due to the absence of any identification of a solicitor acting for the defendant and to the fact that his communications had been with the realtor to establish that he relied on the representation. He says as a result of his reliance on the text messages he suffered a detriment, which was unnecessarily paying the deposit on 24 and 25 January 2024. [45] However, the timing of the payment of the first instalment of the deposit and the terms of the plaintiff’s communication to the realtor very soon after it was paid are not consistent with the assertion that the plaintiff relied on the realtor’s two text messages. When she said at 8:52 am that he may need to deposit today and to call her if he had any issues, his response was to transfer $45,000 to her agency’s account at around 9:00 am and to state at 9:05 am that the deposit would be paid across that day and the next day. From his response it is clear that he decided how and when he would pay the deposit. What the plaintiff wrote to the realtor is not consistent with his evidence that but for her text message of 10:58 am he would have paid the deposit in full on 24 January. This inconsistency between his evidence and his conduct and statement of 24 January has led me to conclude that I am not satisfied he acted in reliance on any holding out or representation. [46] My conclusions that the plaintiff has not established that the realtor acted within the scope of her actual or ostensible authority when she sent the content of the text messages of 24 January 2024 are conclusions effectively dispositive of the plaintiff’s case that the defendant elected either to affirm the contract or is estopped from exercising her right to terminate it. Nevertheless, it assists to deal with some aspects of affirmation and estoppel. Affirmation [47] The plaintiff contends that upon the non-payment of the deposit by 23 January the defendant had the right to terminate the contract or to affirm it, pursuant to clause 9.1(1) of the contract of sale. He says that the defendant elected to affirm the contract through the realtor’s text messages of 24 January 2024. 8 Wilh. Wilhelmsen Investments Pty Ltd v SSS Holdings Pty Ltd (t/as MobileCorp) [2019] NSWCA 32 at [125]. -- 10 of 14 -- 11 [48] To establish that the defendant elected to affirm the contract, the plaintiff must show a number of matters, including that the text messages are “unequivocal in the sense that [they are] consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other; …”9 [49] Even if the text messages could be attributed to the defendant by way of actual or ostensible authority, I am not satisfied that they amount to an unequivocal election to affirm the contract. The first message, that the plaintiff “may need to deposit” that day, was capable of being understood as an inquiry by the realtor about whether the plaintiff intended to proceed with the contract in view of his failure to have paid the deposit by 23 January 2024. The second message was capable of being understood as an acknowledgement of the plaintiff’s position that he intended to pay the deposit over two days but that the acceptability of his proposal was contingent upon the defendant’s consent to his proposed new arrangement for payment of the deposit. The messages were not consistent only with the exercise of the option of affirming the contract. [50] To establish affirmation, it is also necessary for the plaintiff to prove that the defendant had knowledge (actual or imputed) that the deposit was not paid on 23 January 2024. This is because it must be shown that the defendant knew that circumstances had occurred that gave rise to the exercise of alternative inconsistent rights.10 [51] The plaintiff submits that the Court can infer that the defendant gained this knowledge on the evening of 23 January from the circumstances that she was a recipient of the email sent by the realtor on the morning of 23 January in which the realtor requested payment of the deposit and from the fact that the defendant had a 20 minute telephone call with the realtor at about 8:00 pm that day. [52] The realtor’s request for the payment of the deposit “today” does not materially advance the plaintiff’s case beyond the indisputable proposition that the defendant was aware the deposit was due “when both parties had signed.” This was stated in the contract which the defendant had signed. [53] The defendant gave direct evidence of what was said during the phone call with the realtor. As has already been set out at paragraph [26] above, she said that she did not ask the realtor about whether the deposit had been paid and the realtor did not tell her the deposit had not been paid. [54] The plaintiff contends that the defendant’s evidence should not be accepted for a number of reasons including that the duration of her conversation with the realtor was too lengthy for a conversation confined to discussions about the building and pest inspection that had been scheduled for 24 January 2024. However, the defendant’s evidence was not that the inspection was definitely the only topic discussed during the phone call. The defendant said she believed that the main issue discussed was the inspection as it was to occur the following day, she did not recall the whole of the conversation she had with the realtor. She said the realtor told her she had arranged 9 Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 646. See also Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445 at [49]-[50]. 10 Allianz Australia Insurance Ltd v Delor Vue Apartments CTS 39788 (2022) 277 CLR 445 at [50]; Sargent v ASL Developments Ltd (1974) 131 CLR 634 at 648 - 649. -- 11 of 14 -- 12 the inspection with the plaintiff and the realtor told her what time it was to occur and what would happen at the inspection. The defendant had to attend work on the day of the inspection so she said she asked the realtor to be there for the inspection. I do not consider that any inference adverse to the defendant can sensibly be drawn from the length of the time the call lasted, even allowing for the consideration that the defendant’s relationship with the realtor was not one of personal friendship and that the house the subject of the contract was the only house the realtor was selling on behalf of the defendant. [55] The plaintiff says that other matters which should lead to the Court to reject the defendant’s evidence that the deposit was not mentioned to her by the realtor were that the defendant’s evidence commenced from the position that she did not recall the conversation at all and that the defendant eventually conceded that her belief that it related to the inspection was based on the timing of the call rather than a recollection of it. As to the argument that the defendant commenced from a position of not recalling the conversation at all, that was not the defendant’s evidence. Her evidence was that she did not remember the time of the call. The defendant did not accept the proposition that she did not actually recall the conversation, she just could not recall the whole conversation. [56] The defendant’s evidence that it was not a topic raised either by or with her was consistent with her evidence-in-chief which was contained in her affidavit sworn on 12 December 2024. There, she stated, “I at no time authorised or requested [the realtor] to agree to any extension of time to pay the Deposit and she at no time asked me to agree to an extension.” I accept as truthful the defendant’s evidence that she was neither told about nor raised the topic of the deposit during the call with the realtor on the evening of 23 January 2024. The evidence does not establish that the defendant had actual knowledge that the deposit remained unpaid on that date. [57] The plaintiff’s alternate contention that the realtor’s knowledge about the deposit is to be imputed to the defendant must fail because the plaintiff has not established that the realtor was acting with the actual or ostensible authority of the defendant. Estoppel [58] The plaintiff’s case for promissory estoppel was based on the realtor’s text messages of 24 January.11 [59] In Waltons Stores (Interstate) Ltd v Maher,12 Brennan J identified the elements that must be proven to establish an equitable estoppel. The second of those elements is that the defendant induced the plaintiff to adopt an assumption or expectation. Reliance was placed on the plaintiff’s evidence (at paragraph [24] above) as well as Ms Elliot’s evidence that the plaintiff’s lack of concern about his failure to pay the deposit was due to his understanding that he had the realtor’s agreement to pay it over 24 and 25 January. [60] I am not satisfied that the plaintiff has established that the defendant induced him to adopt any assumption or expectation because any inducement came from text 11 The parties agree that in the circumstances of this case s 59 of the Property Law Act 1974 has no bearing on the issue of estoppel. 12 (1988) 164 CLR 387 at 428 - 429. -- 12 of 14 -- 13 messages sent by a person who did not act with the actual or ostensible authority of the defendant. In Markson v Cutler, Brereton J said:13 “I do not see how a party can be bound by the act of its unauthorised agent, for the purposes of the second element of Walton Stores v Maher.” Counterclaim [61] By counterclaim the defendant sought the forfeiture to her of the deposit of $98,500, together with interest at the contract rate published by the Queensland Law Society Inc from 29 January 2024 until payment. I am satisfied that the defendant has established her counterclaim. [62] The counterclaim is based on the plaintiff having breached clause 2.2(1) of the contract by not paying the deposit by 23 January 2024. This was not a matter which was in dispute. Next, if the plaintiff failed to comply with an essential term of the contract, the defendant could terminate the contract under clause 9.1. This was not disputed (if the plaintiff’s claim for specific performance failed). Then the defendant relied on clause 9.4(2) of the contract which provided that if the defendant terminated the contract under clause 9.1, the defendant may “forfeit the Deposit and any interest earned.” On 29 January 2024 the defendant’s solicitors emailed Ms Elliott at 11:44 am and stated that the plaintiff “did not attend to full payment of the Deposit by the due date in accordance with the Contract. Accordingly, our client hereby terminates the Contract.” It was not disputed that an email in these terms was sent and received. [63] The plaintiff resisted the counterclaim on the basis that the term “Deposit” in clause 9.4(2) meant funds paid by 23 January and so the funds the plaintiff transferred on 24 and 25 January did not meet the contractual definition of “Deposit” with the result that there was no “Deposit” to forfeit. The plaintiff submitted that the defendant had a right to recover from the plaintiff as a liquidated debt any part of the deposit which was not paid when required pursuant to clause 2.2(5). However, she had not made a counterclaim for a liquidated debt. He pointed out that although the term “Deposit” was not defined in clause 1, the definitions clause, the opening words to clause 1 were, “In this contract, terms in bold in the Reference Schedule have the meanings shown opposite them …” The word “Deposit” appeared in bold in the Reference Schedule. [64] When regard is had to the Reference Schedule it can be seen that immediately opposite the word “Deposit” appears “$98,500.” Further to the right of this amount are words which refer to an “Initial Deposit payable” and “Balance Deposit (if any) payable.” Above the word “Deposit” are the words “Purchase Price” and opposite those words is “$985,000.” I reject the plaintiff’s argument. The deposit was simply $98,500, just as the purchase price was $985,000. The funds that the plaintiff transferred to the deposit holder on 24 and 25 January, which totalled $98,500, did not lose their character as the deposit simply because they were not paid by 23 January 2024. Clause 2.2(5) makes provision for the situation where any part of the deposit is “not paid when required.” In that scenario the seller may recover the sum 13 (2007) 13 BPR 25, 127 at [20]. -- 13 of 14 -- 14 outstanding as a liquidated debt. Here, the deposit was paid and so was liable to forfeiture under clause 9.4(2). Orders [65] I make the following orders: 1. The claim for specific performance is dismissed. 2. The deposit of $98,500 is forfeited to the defendant with interest at the Contract Rate published by the Queensland Law Society Inc from 29 January 2024 until payment. [66] I will hear the parties as to costs. -- 14 of 14 --