Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 99

SUPREME COURT OF QUEENSLAND CITATION: Best Price Real Estate Pty Ltd v Equity 2 Pty Ltd [2021] QCA 99 PARTIES: BEST PRICE REAL ESTATE PTY LTD ACN 164 134 025 (appellant) v EQUITY 2 PTY LTD ACN 138 153 367 (respondent) FILE NO/S: Appeal No 9295 of 2020 DC No 73 of 2020 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Southport – [2020] QDC 180 (Kent QC DCJ) DELIVERED ON: 11 May 2021 DELIVERED AT: Brisbane HEARING DATE: 25 November 2020 JUDGES: Sofronoff P and McMurdo JA and Henry J ORDERS: 1. Allow the appeal. 2. Vary the order made in paragraph (a) of the orders of 3 August 2020, by deleting the words “without leave to re-plead”. 3. Set aside the orders in paragraphs (b) and (c) of the orders made on that date. 4. Dismiss the application for summary judgment filed on 12 June 2020. 5. Order that the parties provide written submissions, not to exceed four pages in length, as to the costs of the application in the District Court and the costs of this appeal, within 14 days of the delivery of this Court’s judgment. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR PLAINTIFF OR APPLICANT – where summary judgment was given in favour of the plaintiff at first instance – where there was an outstanding issue to be decided – whether the order for summary judgment was made in error -- 1 of 11 -- 2 – whether summary judgment should have been given on any part of the respondent’s claim PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – where the appellant’s defence was struck out at first instance – whether the defence ought to have been struck out on the basis that there was no arguable defence – whether leave should have been given to replead CONTRACTS – GENERAL CONTRACTS – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – IMPLIED TERMS – GENERALLY – where there was a conjunction agreement between two real estate agents – whether there was an implied term which required the parties to act in good faith Uniform Civil Procedure Rules 1999 (Qld), r 171, r 292 Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors [2019] QSC 163, approved Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351; [2001] HCA 2, cited Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; [2015] FCAFC 50, applied COUNSEL: N M Cooke for the appellant J Faulkner for the respondent SOLICITORS: Redmond + Redmond for the appellant Woods Hatcher Solicitors for the respondent [1] SOFRONOFF P: I agree with the reasons of McMurdo JA and with the orders proposed by his Honour. [2] McMURDO JA: This is an appeal against a judgment in the District Court, by which the appellant’s Defence was struck out and summary judgment was given for the plaintiff. [3] Each of the parties is a real estate agent. The respondent was engaged by the owner of a property at Labrador, and became entitled to an agent’s commission when its sale was completed in early 2020. The appellant and the respondent made a written contract, called a conjunction agreement, under which the respondent agreed to share its commission with the appellant, in the event of a sale to “the Prospective Purchaser”. [4] The conjunction agreement nominated a company called Trevato Pty Ltd (“Trevato”) as the Prospective Purchaser, and Trevato entered into a contract to purchase the property. In fact Trevato’s contract was made weeks before the conjunction agreement was signed. However Trevato’s contract was not completed. It was rescinded, by agreement between the vendor and Trevato, and at the same time the vendor resold to a company called Aelone Pty Ltd (“Aelone”). It was that contract of sale which was completed and which entitled the respondent to its commission from the vendor. -- 2 of 11 -- 3 [5] Shortly before the due date for completion of the sale to Aelone, the appellant made demands, addressed to the respondent and to the vendor, for a payment of its share of the agent’s commission, notwithstanding that this was not a sale to Trevato. The appellant threatened to affect the completion of the sale to Aelone if its demands were not satisfied. On the following day, Aelone’s contract was completed, and relevantly three payments were made from the settlement funds: $176,000 to the appellant, $88,000 to the respondent and $66,000 to the trust account of the vendor’s solicitor, to be held pending resolution of the dispute between the present parties. [6] The vendor had agreed to pay a total of $440,000 as commission to the respondent, and that further to those three payments totalling $330,000, a balance of $110,000 would be paid within 14 days of the registration of new titles in a certain development of the property. [7] The respondent filed a claim and statement of claim, seeking the following relief: (a) a declaration that the appellant was not entitled to any proportion of the respondent’s commission on settlement of the Aelone contract, under the conjunction agreement or at all; (b) an order that the $66,000 held in the solicitor’s trust account together with any accretions, be released to the (present) respondent; (c) a declaration that the balance of the commission ($110,000) should be paid to the (present) respondent; (d) an order that the (present) respondent recover from the appellant the amount of $176,000 “in restitution for unjust enrichment”, together with interest. [8] The respondent’s pleaded case, as to its restitutionary claim for the $176,000, was that it had failed to contest the payment to the appellant at the time, because it was “under duress” from the appellant’s threat to interfere with completion of the Aelone contract. It alleged that it was threatened with “financial harm that would be suffered by [it] as it stood to lose the entirety of its commission if the [appellant] was able to make good its threat to frustrate settlement of the [Aelone] contract.” Alternatively, the respondent pleaded, it did not contest the payment of $176,000 under a mistaken belief that the appellant had an ability to frustrate settlement of the contract. It further pleaded that the appellant had been “unjustly enriched to the financial disadvantage of [the respondent]”, and there being no consideration for the payment made to the appellant. [9] The response to the restitutionary claim was as follows: the appellant pleaded that the relevant paragraphs of the statement of claim were “vague, embarrassing and ambiguous”, accompanied by a repetition of its pleaded case that, when making its demands upon the respondent and the vendor, the appellant had an existing entitlement against the respondent for at least this amount. [10] The respondent applied for an order that the Defence be struck out “in whole or in part” under r 171 of the Uniform Procedure Rules 1999 (Qld), and “further, or in the alternative”, for summary judgment under r 292. The hearing of these applications occupied almost a whole day, and there were further written submissions, as requested by the judge, after the judgment was reserved. -- 3 of 11 -- 4 [11] In his reasons for judgment,1 the judge said that “matters of this level of complexity and importance” could be better heard in the Court’s civil list.2 Nevertheless, his Honour said, “the action is suitable for summary determination, given the material facts are not generally contentious …, rather, there is a disagreement as to the interpretation of the written conjunction agreement.” [12] What followed in the Judgment was a detailed and careful consideration of the arguments which the parties had presented. However those arguments had not addressed the respondent’s restitutionary claim to be paid $176,000. Early in the hearing before the primary judge, counsel for the (present) respondent said that in the event that the judge went further than the application to strike out the pleading, and his Honour was considering the application for summary judgment, the judge could not give summary judgment on the restitutionary claim because of the factual issues involved.3 His Honour appeared to accept that concession, and as I have said, the judgment did not consider this part of the respondent’s claim. In this Court, counsel for the respondent, who appeared at first instance, rightly conceded that there was no application for summary judgment on the restitutionary claim, and drew attention to passages from the transcript to which I have referred. [13] However the orders which were made by his Honour (apart from costs) were that the defence be struck out pursuant to r 171, “without leave to re-plead”, and that “summary judgment be given in favour of the [respondent] against the [appellant] pursuant to r 2934 of the UCPR”. [14] At the end of the Judgment, his Honour wrote that these orders were “necessarily somewhat broad brush in nature, following as they do the relief sought in the application”, and that he hoped that the effect of the orders was clear and that they did not give rise to further disagreements. He gave liberty to apply in case any refinement of the orders, or any further orders, were necessary. [15] His Honour thereby erred in making an order simply for “summary judgment”. That was a description of the process by which, to the judge’s satisfaction, an entitlement to some final relief had been established. However, it was not an order which pronounced any declaration or which ordered the payment of any sum.5 If it was intended as a shorthand description of all of the relief sought by the claim, it was wrongly made, at least because it thereby resolved the restitutionary dispute. That order must be set aside, and there will have to be a trial to determine the claim for the amount of $176,000. [16] Apart from the restitutionary claim, what was in issue was the amount of $66,000 held in the solicitor’s trust account, and the balance of $110,000 to be paid if and when Aelone registers a dealing with the land which represented its proposed development. In effect, therefore what is at stake, across those two components, is an amount of $117,333.6 It is necessary to consider whether his Honour was correct in striking out the Defence, and whether he should have given summary judgment on any part of the respondent’s claim. 1 Equity 2 Pty Ltd v Best Price Real Estate Pty Ltd [2020] QDC 180 (“Judgment”). 2 Judgment [4]. 3 Transcript 1–8. 4 An intended reference to r 292. 5 Compare Form 58 of the UCPR. 6 Being (2/3 of $110,000) + $66,000. -- 4 of 11 -- 5 The facts as presently revealed [17] It was the appellant which found Trevato as a potential buyer for the property. On or about 24 September 2019, the appellant provided the respondent with a written offer from Trevato, and negotiations then proceeded between Trevato and the vendor. On 9 October 2019, Mr Holmes for the respondent emailed Mr Westwood for the appellant and a Mr Schultz, recording what Mr Holmes said had been agreed between the agents, that the commission from the vendor would be split equally between the appellant, the respondent and Mr Schultz. Apparently Mr Schultz was associated with the appellant, which is consistent with the conjunction agreement subsequently providing for two thirds of the commission to be paid to it. The email from Mr Holmes was as follows: “Further to our discussions in relation to the commission split available in the event that your prospective purchaser settles the contract on the Inspire development currently occupied by Cav’s Restaurant and Butchery. It has been mutually agreed that the split is 33.3% plus GST for each party involved payable at settlement or such time as the clearance of the funds in the Equity 2 Pty Ltd account and a valid tax invoice is received.” [18] On one view, “your prospective purchaser” was Trevato; on another view, it was Trevato’s principal, Mr Turner, or any entity associated with him. That could not be resolved on the present evidence. [19] On 31 October 2019, the vendor and Trevato entered into their contract. The purchase price was $8,350,000. The contract document recorded that the property was the subject of an existing development project, under which persons had paid deposits for separate registered titles to be issued after completion of the development. Trevato’s contract was subject to its completing its due diligence enquiries about the property and the development project by 21 November 2019. It recorded that at settlement, the respondent, as the vendor’s agent, would be entitled to a commission of $400,000 plus GST, which was to be paid as to $300,000 plus GST at settlement, and the balance within 14 days “after registration of the building”. [20] Apparently, Mr Turner of Trevato was then looking for a joint venturer for this development. On 27 November 2019, Mr Turner sent an email to the vendor and Mr Holmes which was copied to Mr Westwood of the appellant, advising that “we are still working on JV agreement with lawyers acting for Arthur. I suggest Tuesday next week 3 December as completed [due diligence]. Expect a fast settlement (one week) after that ie 10 December.” “Arthur” was Mr Arthur Lowe, who through Aelone became the financier for the acquisition and development. [21] The respondent pleaded that on 3 December 2019, there was an email from Mr Westwood to Mr Holmes, which attached a draft of the conjunction agreement, but this was not admitted. In any case, on 4 December 2019, at 21:07 hours, Mr Holmes emailed Mr Westwood saying “please see the paperwork as requested”, and that was a reference to the conjunction agreement which the respondent had signed on that day. I will return to the terms of that agreement. -- 5 of 11 -- 6 [22] However earlier that day, at 11.06 am, the vendor’s solicitor had emailed the solicitor for Trevato, saying that she had been instructed that Trevato had requested a rescission of its contract, and for a new contract to be made between the vendor and Aelone, to which the vendor had agreed. The email was not copied to Mr Holmes, and the evidence does not establish whether he was aware of this change of purchaser on that day, prior to signing and returning the conjunction agreement. [23] On 9 December 2019, a joint venture agreement was signed between Aelone and Frank Developments Pty Ltd, which was another company controlled by Mr Turner. Under that agreement, Mr Turner’s company was to do all things necessary to effect the purchase of the property in the name of Aelone. [24] On 31 December 2019, two agreements were made. There was a deed of recission of the Trevato contract, and the contract of sale between the vendor and Aelone. Trevato and Mr Turner guaranteed Aelone’s performance of that contract, and agreed to the deposit under the Trevato contract being treated as a deposit paid under the Aelone contract. The Aelone contract settled on or about 16 January 2020. The conjunction agreement [25] The conjunction agreement was a two page printed form, with relevant details inserted, such as the names of the parties, a description of the property and, importantly, a specification of “the Prospective Purchaser”. [26] Under the heading “Basis of conjunction agreement” appeared the following words: “The Conjunction Agency [the appellant] introduces the Prospective Purchaser/s … to the Listing Agency [the respondent] for the sale of [the subject property]”. [27] Trevato Pty Ltd was named as the Prospective Purchaser. Against the word “Commission” were typed the words: “total commission including GST $440,000 split 3 ways 1/3 to [the respondent] and 2/3 to [the appellant]”. The same apportionment appeared against the item “Commission Entitlement”. The “Conjunction Period” was specified as twelve months commencing on 1 October 2019. [28] A further insertion in the form was as follows: “Payment is Based on $330K on Settlement and $110K 14 days after registration of completed development”. [29] Contrary to the argument for the appellant, unambiguously the agreement specified Trevato, and only Trevato, “the Prospective Purchaser”. On the face of the document, it is incapable of an interpretation, for example, to the effect that this extended to any associated entity of Trevato, or to any entity which became the ultimate purchaser by Trevato having acted as an intermediatory. [30] Clearly , the basis for the agreement, and the appellant’s entitlement to a share of the commission payable by the vendor, was the appellant’s “introduction” of the Prospective Purchaser to the respondent, for the sale of the property. The word -- 6 of 11 -- 7 “introduction” is commonly used in agreements between real estate agents and vendors, and it has in that context an established meaning. In Moneywood Pty Ltd v Salamon Nominees Pty Ltd,7 McHugh J said: “In the absence of a contrary agreement, the law implies a term that the agent is not entitled to its commission merely because it has introduced the purchaser of property. If the agreement is that commission is payable on “introducing” or “finding” a purchaser for the property, the agreement will be construed as meaning that the commission is payable only when the agent has introduced or found a purchaser who is ready, willing and able to complete the purchase. Thus, unless the vendor's default was the reason for the contract not being completed, the agent is entitled to the commission only “if the sale is completed”. Moreover, the agent must prove that the introduction was the effective cause of the sale. In this area of the law, as in other areas of contract, the common law has rejected the “but for” test of causation.” (citations omitted) [31] Consequently, by this agreement, the appellant was to be rewarded for introducing Trevato as a Prospective Purchaser to the respondent, on condition that Trevato completed a purchase of the property and the respondent was paid its commission by the vendor. The appellant’s pleaded case [32] The appellant pleaded that the conjunction agreement contained a number of implied terms. One of them was that the parties would “act and negotiate in good faith with each other in performing the terms of the Conjunction Agreement”. Another was that the parties would “act and negotiate with a duty to co-operate with each other to perform the terms and purpose of the Conjunction Agreement”. And a third implied term was expressed as an obligation on the parties to “give business efficacy to the terms of and any inconsistencies in the Conjunction Agreement”. As to that, it was pleaded that in order to ensure business efficacy of the conjunction agreement, it was necessary to interpret the expression “Prospective Purchaser” as including any purchaser with “a connection or link [with Trevato] either directly or indirectly”. [33] As to the first of those implied terms, it may be accepted, for the purposes of an application to strike out a pleading or for summary judgment, that the conjunction agreement required the parties to act in good faith towards each other. In Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors,8 Jackson J extensively analysed the Australian authorities on the question of whether a term of good faith or reasonableness may be implied as a legal incident of commercial contracts. As he discussed, this is a question which has not been authoritatively resolved by the High Court.9 Jackson J observed that the New South Wales Court of Appeal has accepted the existence of an implied contractual duty of good faith and fair dealing in the performance and exercise of contractual rights and powers, in a commercial contract, either generally or in a particular context.10 He also cited three decisions of the Full 7 (2001) 202 CLR 351 at 360 [27]. 8 [2019] QSC 163. 9 See Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 at 195 [42] per French CJ, Bell and Keane JJ; at 214 [107] per Kiefel J. 10 [2019] QSC 163 at [220] citing, amongst other cases, United Group Rail Services Ltd v Rail Corporation NSW [2009] NSWCA 177; (2009) 74 NSWLR 618 at 634-635; Bartlett v Australia and New Zealand Banking Group Ltd [2016] NSWCA 30; (2016) 92 NSWLR 639 at 649-652. -- 7 of 11 -- 8 Federal Court,11 including Paciocco v Australia and New Zealand Banking Group Ltd,12 where Allsop CJ said:13 “The usual content of the obligation of good faith that can be extracted from cases such as Renard Constructions, Hughes Bros Pty Ltd v Trustees of Roman Catholic Church (Archdiocese of Sydney) (1993) 31 NSWLR 91, Burger King Corporation v Hungry Jack’s Pty Ltd (2001) 69 NSWLR 558, Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349, and United Group Rail Services Limited14 is an obligation to act honestly and with a fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained.” [34] Accepting that there were such implied terms, it would not follow, as the appellant pleaded,15 that by the operation of those terms, the appellant became entitled to a share of the commission on the sale to Aelone. [35] The appellant pleaded that for several reasons, the respondent was estopped from denying the appellant’s claim to a share of the commission. One reason was that the appellant not only introduced Trevato to the respondent, but also undertook work to introduce Aelone, so that it would be unconscionable for the respondent to deny the appellant some of its commission where the respondent “was not the sole introducer of the purchaser to the seller”.16 [36] Another plea by the appellant was that it was under a “fundamental mistake of fact as to what the terms of the Conjunction Agreement [were]”, and that the respondent was seeking to take advantage of that mistake.17 It was not pleaded that the respondent was aware of that mistake, and nor did the pleading reveal the content of that mistake. [37] A further plea was that work performed and introductions undertaken by the appellant provided a “value add” to the services provided by the respondent to the vendor, such that the appellant’s work “ought, as a matter of equity, [entitle the appellant to] receive remuneration”, for otherwise the respondent would be “unjustly enriched to the detriment of the [appellant]”.18 [38] In other parts of this pleading, the appellant repeatedly advanced a case, in varying terms, to the effect that the association between Mr Turner and Trevato on the one hand, and Aelone as the ultimate purchaser on the other, had the result that the appellant was entitled to a share of the commission just as if Trevato had completed its contract. 11 Marmax Investments Pty Ltd v RPR Maintenance Pty Ltd (2015) 237 FCR 534; Paciocco v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 199; Virk Pty Ltd (in liq) v YUM! Restaurants Australia Pty Ltd (2017) FCAFC 190. 12 (2015) 236 FCR 199. 13 (2015) 236 FCR 199 at 273 [288]. 14 United Group Rail Services Ltd v Rail Corporation (NSW) (2009) 74 NSWLR 618. 15 Paragraph 10(e)(iv) of the Amended Defence. 16 Paragraph 12(a)(ii) of the Amended Defence. 17 Paragraph 12(a)(ii) of the Amended Defence. 18 Paragraph 12(a)(ii) of the Amended Defence. -- 8 of 11 -- 9 The Judgment [39] The primary judge said that the conjunction agreement was unambiguous in its terms.19 That statement is criticised on the appellant’s argument, but I agree with his Honour. I have explained already what I consider to be the clear effect of the agreement. The term “Prospective Purchaser” was expressed to be Trevato, and any implication of terms, as the respondent had pleaded, could not detract from the clarity of the contract in this respect. As Allsop CJ said in Paciocco, obligations within the more general obligation of good faith do not require the interests of a contracting party to be subordinated to those of the other, and it is good faith or fair dealing between the parties by reference to the bargain and its terms that is called for.20 [40] The primary judge rejected the submission that a term was to be implied, in order to ensure the business efficacy of the conjunction agreement, to the effect that a sale to a purchaser with some connection or link with Trevato would suffice for the appellant to be entitled to a share of the commission. His Honour held that such a term would not be reasonable and equitable, would be unnecessary to give business efficacy to the agreement, would not be so obvious that it would go without saying, and that it would be incapable of clear expression. I agree with the judge in each respect. [41] The judge then considered the implied duty to co-operate and to act in good faith. Without deciding whether those terms were to be implied, his Honour considered that they had not been breached. He said that the respondent had acted reasonably, and had done nothing that would undermine any duty to co-operate or act in good faith. On the pleadings and on the evidence, the respondent did not act to have the property sold to Aelone in order to deprive the appellant of a share of the commission. His Honour said that it was not by some default of the respondent (or the vendor) that Trevato’s contract was not completed and that the property was resold.21 Again, I agree with that reasoning. [42] His Honour then considered what he described as “the next question”, which was whether the appellant was entitled to a share of the commission, not upon the basis of the terms of the conjunction agreement, but because the appellant was the effective cause of the sale.22 In my respectful opinion, however, this was not a relevant inquiry. In this case, it was only by the completion by Trevato of its purchase that the appellant could have become entitled to its share of the commission. Absent that event, the agreement between the agents provided no entitlement to a share of the respondent’s commission. Had the agreement not confined the appellant’s entitlement to a completed sale to Trevato, it could have been relevant to assess whether, as McHugh J put it in the passaged quoted from Moneywood, the appellant was the effective cause of the sale. The disposition of this appeal [43] It ought to be evident, from what I have said, that this was an appropriate case for the Amended Defence to be struck out pursuant to r 171. None of the matters pleaded disclosed an arguable defence, and in a number of places, the pleading was imprecise and bad in law. 19 Judgment [30]. 20 Paciocco v Australian and New Zealand Banking Group Ltd (2015) 236 FCR 199 at 273 [289]. 21 Judgment [50]. 22 Judgment [51]. -- 9 of 11 -- 10 [44] In particular, if the appellant had in any way contributed to the sale of the property within the conjunction period, the implication of terms, as pleaded, could not have had the consequence that it would be paid a share of the respondent’s commission. It could not be unconscionable for the respondent to keep all of its commission simply because the appellant had introduced Trevato to the respondent and had undertaken some work to promote the involvement of the ultimate purchaser. [45] Nor could the appellant claim the share of the commission upon the basis that it introduced Trevato under a “mistake of fact” as to the effect of the conjunction agreement. Such a mistake would be one of law, but more importantly, the appellant’s introduction of Trevato to the respondent, in the sense of identifying Trevato to the respondent as a potential purchaser, had occurred before the conjunction agreement was signed on 4 December 2019. [46] The order for the striking out of the Amended Defence should therefore stand. However leave to re-plead should not be refused. For one thing, there is the case to be tried in respect of the restitutionary claim by the respondent. [47] The remaining question is whether the whole of the appellant’s claim should be determined at a trial, or instead the respondent should be given judgment on a part or parts of the claim. [48] The appellant’s written submissions in this Court include a contention that the evidence indicated that the respondent had knowledge, when signing the conjunction agreement, that there was a joint venture being considered between Trevato or another entity of Mr Turner and an entity of Mr Lowe. It was submitted that the prospect of this joint venture was relevant as part of the surrounding facts and circumstances against which the conjunction agreement was to be interpreted.23 That was not part of the appellant’s pleaded case. However, on an application for summary judgment, the potential relevance of this fact cannot be easily dismissed. [49] Further, there is potentially another relevant factual inquiry, which is whether either or both of the present parties knew, when the conjunction agreement was signed, that the vendor, Trevato and Aelone had reached their agreement in principle that Trevato’s contract would be rescinded and that the property would be sold to Aelone. As I have discussed, it is evident from an email on the morning of 4 December 2019 that such an agreement in principle had been reached. It is not unlikely that the respondent, as the vendor’s real estate agent, was then aware of that. If that was so, that knowledge might provide a basis for an yet unpleaded defence, if the appellant did not have the same knowledge when the conjunction agreement was made. On the unambiguous terms of the agreement which Mr Holmes signed and returned late on the evening of 4 December 2019, there was no longer a possibility that the appellant would become entitled to any benefit under it, as Mr Holmes might have appreciated. In that case, arguably there would have been unconscionable conduct, in connection with the respondent’s acquisition of services from the appellant, in contravention of s 21 of Schedule 2 of the Competition and Consumer Act 2010 (Cth), The Australian Consumer Law. The agents had reached a common understanding as to the proportions in which they would share the commission, before the conjunction agreement was signed, and on the present evidence, that understanding was not limited to a sale to Trevato. Conceivably, the conjunction agreement may have put paid to any prospect that the appellant would receive any of the commission. 23 Appellants outline of argument, paragraph 18. -- 10 of 11 -- 11 [50] There is a deal of speculation in this hypothesis, but there is a sufficient indication of it in the evidence as to cause a sufficient concern that it should be investigated at the trial of this proceeding. [51] In the circumstances, this is a case where although the evidence is scant, it is in the interests of justice that the entirety of the dispute between the parties be determined by a trial. As I have said, most of the amount in dispute is involved in that part of the case which must go to trial. Orders [52] I would order as follows: 1. Allow the appeal. 2. Vary the order made in paragraph (a) of the orders of 3 August 2020, by deleting the words “without leave to re-plead”. 3. Set aside the orders in paragraphs (b) and (c) of the orders made on that date. 4. Dismiss the application for summary judgment filed on 12 June 2020. 5. Order that the parties provide written submissions, not to exceed four pages in length, as to the costs of the application in the District Court and the costs of this appeal, within 14 days of the delivery of this Court’s judgment. [53] HENRY J: I agree with the reasons of McMurdo JA and the orders proposed by his Honour. -- 11 of 11 --