F J Richards Pty Ltd v Mills Pty Ltd [1990] QSC 311 [1995] 1 Qd R 1

.Sc.. C,o/31 I IN THE SUPREME COURT OF QUEENSLAND No. 1969 of 1987 Before Mr. Justice Kelly S.P.J. BETWEEN: AND: AND: AND: Delivered the CATCHWORDS: Counsel: Solicitors: F.J. RICHARDS PTY. LTD. Plaintiff MILLS PTY. LTD. First Defendant HARPON PTY. LTD. Second Defendant CHRISTOPHER JAMES GUIDICE Third Defendant JUDGMENT - KELLY S.P.J. /'9··•..,JLJ-»..1,__..__,fi-- day of ~_J,~ 1990. C.J.L. Brabazon Q.C. with D.B .. Fraser for plaintiff L.D. Bowden for defendants Hopgood and Ganim for plaintiff Bowdens for defendants Hearing dates: 9th - 12th April, 1990. -- 1 of 23 -- IN THE SUPREME COURT OF QUEENSLAND BETWEEN: F.J. RICHARDS PTY. LTD. AND: MILLS PTY. LTD. AND: HARPON PTY. LTD. AND: CHRISTOPHER JAMES GUIDICE No. 1969 of 1987 Plaintiff First Defendant Second Defendant Third Defendant Delivered the JUDGMENT - KELLY S.P.J. /~~){ day of~~ 1990. At all times material to this action the first defendant, Mills Pty. Ltd., was the owner of premises at 85 George Street, Brisbane known as the Lands Office Hotel ("the hotel") and the second defendant, Harpon Pty. Ltd., was the owner of the business carried on in those premises. The third defendant, Christopher James Guidice, was a director of both the first defendant and the second defendant. In May 1983 the second defendant acquired the business of the hotel and the licence and the third defendant and his wife purchased the shares in the first defendant. Mr. F.J. Richardi, a civil engineer, who at all material times acted on behalf of -- 2 of 23 -- 2 the plaintiff, F.J. Richards Pty. Ltd., in its dealings with the defendants and a Mr. David Finding became interested in the purchase of the hotel with a view to the development of the site. In 1983 Mr. Richards prepared a feasibility study of the hotel and prior to its purchase by what might conveniently be referred to as the Guidice interests made an offer to purchase the hotel from the then owner, which was unsuccessful. After the purchase of the hotel by the Guidice interests Mr. Richards and Mr. Finding then approached Mr. Guidice with a view to purchasing the hotel and in September 1983 they submitted an offer by means of a company, Quay Developments Pty. Ltd., to purchase it for $2.3 million. A contract was drawn up but the transaction did not proceed as finance was not available. In April or May 1985 the business relationship between Mr. Richards and Mr. Finding came to an end. Mr. Richards had meanwhile updated his feasibility study and in February 1985 he produced the final version of this document. In 1985 Mr. Richards was seeking a joint venture partner for the purpose of purchasing the hotel with a view to redevelopment and he approached a number of building construction companies. He had kept in touch with Mr. Guidice and a purchase price of $2.5 million was discussed. In May or June 1985 Mr. Richards discussed with Mr. Guidice a proposal for the sale of the hotel at $3 million out of which Mr. Richards would be paid back $500,000.00 which would recompense him for expenditure incurred on his feasibility study, travelling and time. Mr. Guidice was agreeable to this, his concern being to receive $2. 5 million clear. This led to a proposal for a purchase by Subcorp Pty. -- 3 of 23 -- 3 Ltd., a company which Mr. Richards described as being "available", for $3 million and appropriate documentation was drawn up. One of such documents (ex. 11) was a form of agreement between the plaintiff and the first defendant whereby the plaintiff was to receive $437,250.00 payable on completion of the contract of sale. One of the recitals in that document was that the first defendant had requested the plaintiff to find a purchaser for the property. Mr. Richards said that this was "not strictly 100 per cent correct" and that he had approached Thiess Watkins who had indicated that they were prepared to do a joint venture with him. In the event the transaction did not proceed as there was insufficient time to obtain finance by the date on which it would have been required, 5th July, 1985. On or about 11th July, 1985 in a telephone conversation Mr. Guidice asked Mr. Richards if he was prepared to make his feasibility study available to a Mr. Foote who wished to show it to a person on the Gold Coast who was interested. Mr. Richards agreed to do so and the feasibility study was subsequently given to Mr. Foote who gave it to a Mr. Kidman, a potential developer. However, no sale eventuated. I shall deal subsequently in more detail with the events involved in this transaction as to which there is a conflict of evidence. In October or November 1985 Mr. Richards commenced discussions with Girvan Bros. ( Qld.) Pty. Ltd. ( "Girvans") regarding a joint venture for the development of the-hotel. A figure of $3 million was discussed and on or about 9th December, 1985 Mr. Richards saw Mr. Guidice taking with him documents which he had prepared by copying them from those which had been -- 4 of 23 -- 4 prepared for the proposed purchase by Subcorp Pty. Ltd. There were three documents comprising a form of contract for the sale of the freehold by the first defendant for $2,881,241.00, a form of agreement for the sale of the business by the second defendant for $118,759.00 and a form of agreement for the payment by the first defendant to the plaintiff of the sum of $500,000.00 in the events there set out. In the first two documents the name of the purch~ser was left blank. Both those documents were signed by Mr. Guidice and at some stage the date of 9th December, 1985 was inserted. The third document, which is ex. 14, was executed under their respective common seals by both parties and dated 9th December, 1985. I shall deal subsequently with the circumstances of the execution of ex. 14 and with its terms and also the matter of the proposed joint venture between the plaintiff and Girvans. At this stage it will suffice to say that the joint venture did not proceed and when contracts for the purchase of lhe freehold and of the business were executed on 23rd January, 1986 the purchaser was Girvans. Prior to the execution of the formal contracts on 23rd January, 1986 there had been negotiations for what was referred to as a "buy back agreement" relating to a proposal that the second defendant purchase a tavern to be constructed as part of the new development. As a result of this it was agreed that $750,000.00 of the total purchase price should be held in accordance with the provisions of a deed dated 23rd January, 1986 executed by Girvans and the second defendant. There were subsequent variations effected by deeds executed in June 1986 arid on 21st August, 1986 and when settlement of the sale of the land -- 5 of 23 -- 5 and business was completed on or about 22nd August, 1986 the amount received by the defendants from the sale was $2,750,000.00. The agreement ex. 14 provided for the payment to the plaintiff of the sum of $25,000.00 on the date on which the contracts of sale became unconditional, this being in part payment of the sum of $500,000.00 to be paid to the plaintiff in accordance with the agreement. Mr. Richards said he thought the contracts became unconditional in February 1986 and as there is no other evidence on the subject I shall assume that to be so. In March and April 1986 the plaintiff received three payments of $2,000.00 each and in September 1986 he received $40,000.00. Mr. Richards said that he and Mr. Guidice had discussed that he would be paid $50,000.00 but that only $40,000.00 had been transferred to his bank account. The effect of Mr. Guidice's explanation of how he had arrived at that sum was that it was two-thirds of a commission of $60,000.00 which had been the sum mentioned as commission by a real estate agent named Griffin in relation to an earlier proposal for the sale of the hotel which did not eventuate. The plaintiff has received no further moneys from the defendants. By a letter dated 25th September, 1986 addressed to Mr. and Mrs. Guidice and the first defendant the plaintiff requested payment of the balance of what it claimed was due under the agreement ex. 14, namely, $454,000.00. By a further letter dated 10th November, 1986 which was similarly addressed the plaintiff referred to its heavy commitments caused by the time and expense of promoting the sale of the hotel, to the fact that -- 6 of 23 -- 6 the payment of $454,000.00 was then 2½ months overdue and also to the fact that Standard Chartered Finance Limited was pressing for repayment of its loan to the plaintiff which was overdue. This was followed by a letter from the plaintiff's solicitors dated 1 0th December, 1986 which brought a reply from the defendants' solicitors dated 15th January, 1987 asserting that as the provisions of s. 70 of the Auctioneers and Agents Act 1971 had not been fulfilled the plaintiff was not entitled to sue for or receive the moneys referred to in the agreement of 9th December, 1985. The writ in this action was issued on 21st May, 1987. By the statement of claim as amended the plaintiff's claim is made under five heads which may be summarised as follows:- 1 . By para. 13 against all the defendants for $204,000.00. This is based on an agreement alleged to have been made on or about 12th July, 1985 to pay to the plaintiff moneys received on the sale in excess of $2.5 million. 2. By para. 14 against all the defendants for $250,000.00 as damages for breach of an implied term in the agreement alleged above that the defendants would not by their conduct prevent the plaintiff from earning and/or receiving the remuneration payable under the agreement; the breach alleged is the reduction of the total sale price to $2,750,000.00 by deeds made in or about June and August 1986. 3. By para. 15 against the first defendant for $454,000.00 as money owing under the agreement of 9th December, 1985. -- 7 of 23 -- 7 4. By para. 17 against the third defendant for $454,000.00 as damages for inducing a breach of contract between the plaintiff and the second and third defendants by procuring and taking part in the deeds of variation. 5. By para. 18 against all the defendants for $454,000.00 on a quantum meruit for services rendered by the plaintiff for and at the request of the defendants. Before proceeding to consider these claims it is convenient to summarise the evidence in relation to the feasibility study, which was that it had been prepared in 1983 and subsequently updated to February 1985. Mr. Richards said that no revision work on it had been done since about April 1985. A copy of it was given to Mr. Foote in July 1985 for the purpose of being made available to Mr. Kidman, a potential developer. Between August and December 1985 Mr. Richards used the study essentially for his own purpose and during this time he gave a copy of it to Girvans. A copy was not provided to Mr. Guidice who had never seen the document. The matters to which I have referred so far are either common ground or at all events are not in dispute. I turn now to those matters on which there is a conflict. The first of these relates to the events of the period on or about 11th and 12th July, 1985. Mr. Richards' account of these events is that Mr. Guidice rang him and asked if he could make the feasibility study available to a Mr. Foote to be taken to the Gold Coast and presented to an agent down there. Mr. Richards said he agreed and said that he was prepared to do this provided that the feasibility was completed in its updating and that he was still -- 8 of 23 -- 8 paid the fee of $500,000.00 as mentioned in the Subcorp arrangement. He said that Mr. Guidice then said that was "okay to him" and Mr. Richards then asked to have that confirmed before he passed the document over to Mr. Foote. Mr. Richards said that on about 12th or 13th July outside the Fourex brewery he handed the document to Mr. Foote and received in exchange a letter in a sealed envelope. That letter was dated 12th July, 1985, addressed to Mr. Richards and signed by Mr. Guidice and, omitting formal parts, was in these terms:- "Please be advised that I, Christopher James Giudice for and on behalf of Harpon Pty. Ltd. does _ hereby agree to pay Mr. Fred Richards commission on the sale of the Lands Office Hotel to one Mr. Kevin Kidman of Admiralty Drive, Gold Coast. 11 Mr. Richards said he telephoned Mr. Guidice and told him that the word "commission" was not correct, that there was no amount of money mentioned, that is, $500,000.00, and that it was not satisfactory. He said he asked Mr. Guidice that it be amended along- the lines they had for the Subcorp agreement and Mr. Guidice said that it was "okay", but nothing happened. In cross-examination Mr. Richards said that when he handed the feasibility study over to Mr. Foote they had a conversation which lasted well over an hour and a half and this took place outside Mr. Richards' car on the side of the road at the brewery and that he had opened the letter there while Mr. Foote was present. Mr. Richards denied that in the telephone conversation on 11 th July Mr. Guidice had asked him if he would accept $60,000.00 commission if the hotel could be sold to someone else and that he had agreed to this and had dictated over the telephone basically the form of the letter of 12th July. -- 9 of 23 -- 9 Mr. Guidice's version of what took place is that following a conversation with Mr. Foote regarding a possible purchaser on the Gold Coast he had telephoned Mr. Richards, explained that Mr. Foote was interested .in showing the feasibility study to a man on the Gold Coast and asked him, if the hotel sold, would he accept $60,000.00, saying that it was better to get a little bit than nothing at all. Mr. Guidice said that Mr. Richards said he would and asked Mr. Guidice to put it in writing and had told Mr. Guidice what he wanted to be put in the letter. Mr. Guidice said that the letter which was adopted was precisely in accordance with the words which Mr. Richards had dictated· over the telephone. Mr. Guidice said he had not received any telephone call from Mr. Richards complaining about the letter of 12th July and that Mr. Richards had not complained to him that the letter did not accurately record the telephone conversation between them. Mr. Foote said that he had been present with Mr. Guidice during his telephone conversation with Mr. Richards in the course of which arrangements had been made for him to pick up the feasibility study from Mr. Richards on the following day at the Lands Office Hotel. On the following day he had picked up an envelope from Surfair and had later met Mr. Richards at the Lands Office Hotel and had given him the envelope which he opened and read the contents and had received from him the feasibility study. Mr. Foote said that this meeting lasted 20 minutes, maybe less. The credibility of both Mr. Richards and Mr. Guidice is thus squarely in issue. I must say that I did not find Mr. Richards -- 10 of 23 -- 1 0 to be a very convincing witness and, save as to matters which are common ground or as to which there is no dispute, I am not prepared to accept his evidence unless it is supported by other evidence which I do accept. Mr. Guidice on the other hand I found to be a witness who was doing his best to give a truthful version of events as he now recalled them and basically I accept his evidence. On one aspect, namely his dealings with Mr. Hayne of Standard Chartered Finance Limited, I find his evidence was not completely satisfactory and I shall refer to this subsequently. I have taken this into account in assessing his general credibility and after careful consideration of the whole of his evidence and of the impression I formed of him in the witness box I have reached the conclusion which I have set out. In so far as there is a conflict between the evidence of Mr. Richards and that of Mr. Guidice I accept the evidence of Mr. Guidice and in particular I accept his version of the events of on or about 11th and 12th July, 1985. I find that the offer made by Mr. Guidice to Mr. Richards and accepted by him was to pay to Mr. Richards a commission of $60,000.00 if the hotel was sold to Mr. Kidman and, of course, in the event a sale to Mr. Kidman did not take place. It follows that those claims made by the plaintiff which as pleaded are based on an agreement in completely different terms from the agreement which I have found cannot succeed. The agreement pleaded as having been made on or about 12th July, 1985 is alleged to result from the acceptance by the plaintiff of a request to make available to the defendants the feasibility study and to bring up to date the results of the work done by the -- 11 of 23 -- 1 1 plaintiff in consideration of which the defendants would pay to the plaintiff all moneys received on the sale of the business and land in excess of $2.5 million. Accordingly the claim which is pleaded in para. 13 and which is based on that alleged agreement must fail. The claim which is pleaded in para. 14, although to my mind somewhat confusing, nevertheless depends on the implied term which is pleaded in para. 10 in these terms:- "It was an implied term of the contract constituted by the request and acceptance referred to above (hereafter referred to as 'the Contract') and the Defendants thereby warranted that the Defendants would not by their own conduct prevent the Plaintiff from earning and/ or recovering the remuneration payable under the Con tract. " · Even if such a term is to be implied, a matter which it is not necessary for me to decide, the request and acceptance were not in the terms pleaded and there was no conduct by the defendants which prevented the plaintiff from earning or recovering the remuneration payable under the contract which I have found to have been made which, of course, is not that pleaded. The deeds made in or about June and August 1986 which are referred to in para. 14 of the statement of claim have no relation to the agreement made on or about 12th July, 1985. Consequently the claim pleaded in para. 14 also fails. The next matter for consideration is the document dated 9th December, 1985 executed by the plaintiff and the first defendant which is ex. 14. That document commences "THIS AGREEMENT is made this Ninth day of December 1985" and after setting out the parties proceeds as follows:- "WHEREAS: A. Mills has requested Richards to find a purchaser for the property being Allotment 18 of Section 6 -- 12 of 23 -- 12 situated in the County of Stanley Parish of S_outh Brisbane contained in Certificate of Title Volume 3325 Folio 80 and containing an area of 36 perches known as the Lands Office Hotel. B. Richards has agreed to find a purchaser for the said hotel provided that it is paid a fee for procuring a purchase~ to enter into a contract of sale with Mills. C. Mills and Richards have reached agreement as to the remuneration to be paid to Richards forRichards' effort in finding a purchaser of the said hotel. NOW THIS DEED WITNESSES AS FOLLOWS: 1. Mills agrees with Richards that provided a contract of sale is entered into between Mills and Girvan Bros (Qld) Pty Ltd. and Harpon Pty. Ltd. and Girvan Bros (Qld) Pty Ltd. in relation to the sale of· the said hotel that it shall pay Richards on the date of completion of the contracts of sale between Mills and Girvan Bros (Qld) Pty Ltd. and Harpon Pty. Ltd. and Girvan Bros (Qld) Pty Ltd. the sum of $500,000.00. 2. Richards acknowledges and agrees that the sum of $500,000.00 will only be paid to Richards upon the completion of the contracts of sale referred to in clause 1. 3. In the event that the contracts entered into between Mills and Girvan Bros ( Qld) Pty Ltd. and Harpon Pty; Ltd. and Girvan Bros (Qld) Pty Ltd. becoming unconditional then on such date the said contracts become unconditional Mills shall pay to Richards the sum of $25,000.00 being in part payment of the remuneration to be paid to Richards as provided in this Agreement. IN WITNESS WHEREOF these presents were executed on the day and year first hereinbefore mentioned." The form of execution was under the common seal of each of the parties. There was argument as to whether this document was a deed, it being contended on behalf of the defendants that this was so and that consequently the recitals were the basis of an estoppe~. These matters were not pleaded but on the view which I take it is not necessary for me to consider the pleading aspect. As to -- 13 of 23 -- 13 whether the document is a deed, no assistance is to be derived either from the Property Law Act 1974-1986 or the Companies (Queensland) Code. The document describes itself both as an "agreement" and as a "deed" but as Quilliam J. points out in Re Wilsons' Settlements (1972) N.Z.L.R. 13, at p. 23, the fact that a document describes itself otherwise than as a deed, e.g., as an agreement, does not mean that it is not a deed. The word "covenant" does not appear, the operative word being "agrees", but again as indicated in Re Wilsons' Settlements, at p. 23, while the word "covenant" is more usually to be found in a deed, the absence of that word does not mean that the document is not a deed. The effect of the document having been executed under the company's seal was considered by Young J. in Manton v. Parabolic Pty. Ltd. (1985) 2 N.S.W.L.R. 361 where it had been argued that just because a document bears the company's seal it does not mean that it is therefore a deed. The learned judge referred, at p. 369, to a number of authorities which recognise that just because a document is sealed, it is not necessarily a deed unless it complies with the substantial requirements of a deed and, at p. 371, he pointed out that it would be a very surprising situation if one got a different result depending upon whether a corporation or an individual executed the document. The learned judge took the view, at p. 369, that the history -of solemn deeds and the authorities which he examined made it plain that the essential element of a deed is that it be the most solemn act that a person can perform with respect to a particular piece of property or other right. -- 14 of 23 -- 14 I would not think that the document here in question satisfies the test indicated in Manton v. Parabolic Pty. Ltd. (supra) and on balance it appears to me that, having regard to its form and content viewed as a whole and despite the description of it in one place as a "deed", it is more properly to be regarded as an agreement than as a deed with the consequence that the question of the recitals giving rise to an estoppel does not arise. The defendants plead that the agreement ex. 14 was to facilitate the purchase of the hotel land and business by Mr. Richards as a joint venturer and was conditional upon h·im as a joint venturer with another party entering into contracts to purchase the hotel land and business for the sum of $3 million and that he did not purchase as joint venturer or otherwise the land and business for that sum or any other sum. It is further pleaded that at no time material to the action was the plaintiff the holder of a "corporation licence" within the meaning of the Auctioneers and Agents Act 1971 (as amended), and therefore as a matter of law it is not entitled to maintain the claim which is made pursuant to the agreement. These two matters are to an extent interrelated. Section 70 of the Auctioneers and Agents Act 1971-1988 ("the Act") so far as is relevant provides as follows:- " ( 1 ) No person shall be entitled to sue for or recover or retain any fees, charges, commission, reward, or other remuneration for or in respect of any transaction as an auctioneer, a real estate agent, a commercial agent, or a motor dealer, unless - (b) being a corporation, it was, at the time of the transaction, the holder of a corporation licence -- 15 of 23 -- 15 under this Act and complied with the requirements of this Act relating to the carrying on by a corporation of the business of an auctioneer, a real estate agent, a commercial agent, or a motor dealer, as the case may be; II The plaintiff admits by its reply that it was not at any material time the holder of a "corporation _licence" within the meaning of that term as used ins. 70 of the Act. "Real estate agent" is defined ins. 5 of the Act in these terms:- "Any person who, as an agent for others, and whether on commission or for or in expectation of any fee,. gain, or reward, and either alone or in connexion with any other business, and either generally or in respect of any one transaction, exercises or carries on or advertises or notifies or states that he exercises or carries on or that he is willing to exercise or carry on or in any way holds himself out as ready to undertake the business of buying, selling, exchanging, or letting houses, land, or estates, or negotiating for such buying, selling, exchanging, or letting, or buying, selling, exchanging, or letting hotel businesses, residential businesses, boarding house businesses, storekeeping businesses, manufacturing businesses, or businesses of any kind whatsoever, or any interest in any of such businesses, or buying, selling, or exchanging livestock: ... " There follow certain exclusions which are not here relevant. In Freehold Land Investments Ltd. v. Queensland Estates Pty. Ltd. (1970) 123 C.L.R. 418 Walsh J. in a judgment with which Barwick C.J. agreed said, at p. 441:- " the definition may be satisfied if one transaction is carried out by a person and this transaction is either a transaction in which that person, being authorized so to do, buys or sells a house or land on behal~ of a principal or a transaction in which that person negotiates for the buying or selling of a house or land by a principal who has retained him so to negotiate." At p. 442 the learned judge said:- -- 16 of 23 -- 16 "The definition is primarily a definition of a person who .carries on a business or advertises that he carries on a business of buying and selling etc. houses etc., or negotiating for such buying and selling etc. No doubt the main purpose of the inclusion of the words 'as an agent for others' was to exclude from the operation of the Act investors and developers who buy and sell land on their own account. It is typical of the business of a real estate agent that the transactions of sale or purchase of land in which he takes part or with which he is associated arenot his personal transactions but are those of other people. It is in that sense that the business is one which he exercises or carries on 'as an agent for others' and, if a person does not do this 'generally'but does it 'in respect of any one transaction', that transaction as a whole is carried out as an agent for others." At p. 443 the learned judge pointed out that one must look to the whole transaction which is on foot. The transaction to which the agreement relates is the sale of the hotel by means of two contracts, one between the first defendant and Girvans and the other between the second defendant and Girvans. There were two requirements which had to be satisfied before the plaintiff became entitled to its remuneration under the agreement, the first being the making of the two contracts and the second being the completion of those contracts. It becomes necessary to consider the involvement of the plaintiff in this transaction and in particular whether or not that involvement was as a joint venturer. There is no doubt that there was a proposal that Mr. Richards or the plaintiff company should be a joint venturer with Girvans. Mr. Richards said that there had been an in~tial approach to Girvans in August 1985 on the basis of a joint venture and that all discussions up until early December were on that basis. Initially in cross-examination he said that up to 9th December it was his belief that Girvans were going to do a -- 17 of 23 -- 17 joint venture with him and that right up until the signing of the contract he was doing a joint venture with Girvans. However he subsequently said that on 9th December he was in the position that he was not going to go ahead with the joint venture with Girvans. The evidence of Mr. Guidice was that when Mr. Richards showed him the blank contracts for $3 million he has asked him who was the purchaser and that Mr. Richards had told him that he was not too sure whether it was to be himself or himself and some joint venture partner and he mentioned Girvans. He said that Mr. Richards had brought ex. 14 to him about two days after he signed the contracts of sale. Mr. Guidice also said that as at 9th December, 1985 he believed that Mr. Richards was a joint venture partner with Girvans as that was what Mr. Richards had told him and that it was not until about May 1986 that he found out that this was not so. In cross-examination Mr. Richards denied that he had told Mr. Guidice on 9th December that the joint venture with Girvans was still on and he later said that Mr. Guidice knew that he was going to pull out and that he had told Mr. Guidice that he would not be a joint venture partner to make Girvans move more quickly to sign the contract. On 9th December the plaintiff wrote a letter to Girvans which commenced:- "Further to discussions I confi,J:-m... that I am prepared to sell my rights in the above project~and to accept a restriction of trade condition of not entering into a similar development in the Brisbane Central Districtfor a period of three years." The letter went on to propose a consideration for this of $550,000.00 and set out certain further conditions. -- 18 of 23 -- 18 On consideration of all this evidence the conclusion which I reach is that it is more probable than not that at the time the agreement ex. 14 was signed, whether it was on the date which it bears or on a date shortly afterwards, and whatever Mr. Richards may have told Mr. Guidice about his position as a joint venturer, he (or the plaintiff company) was no longer a joint venturer with Girvans. I think it is more probable than not that Mr. Richards continued to lead Mr. Guidice to believe that he was still involved in such a joint venture but what appears to me to be of importance is not what Mr. Guidice believed to be the position but what the position was in fact. Accordingly I find that at the time the plaintiff entered into the agreement ex. 14 it was not acting for itself but simply as an agent for the defendants. There is no basis on which it could be found that~he agreement is subject to a condition precedent that Mr. Richards should be a joint venturer. Recitals A and B to the agreement do not accurately reflect what had occurred. The initiative for the finding of a purchaser came from the plaintiff. However, on the view which I have taken recital C is substantially accurate. Whilst it is apparent that ex. 14 was copied substantially in its form from ex. 11, which was the corresponding document in the Subcorp Pty. Ltd. proposal, it was a document which the plaintiff was prepared to adopt and to present to the first defendant for execution. In the event I would not consider that anything turns on the conversation in July 1986 between Mr. Guidice and Mr. Hayne of Standard Chartered Finance Limited in which, according to a file note made by Mr. Hayne, Mr. Guidice had referred to the payment -- 19 of 23 -- 19 of $500,000.00 commission to Mr. Richards. Mr. Guidice said that it was not possible that he had mentioned $500,000.00. He did say that he had led Mr. Hayne along about the prospect of getting money from Mr. Richards but that it was impossible that he would have mentioned $500,000.00 as there was not that money there anyway to pay . I consider that it is more probable than not that, for whatever reason, Mr. Guidice did mention the figure of $500,000.00 but, in view of answers given in cross-examination by Mr. Hayne, it is not certain that the word "commission" was used. However, as I have said, nothing ultimately turns on this. Applying the passages in Freehold Land Investments Ltd. v. Queensland Estates Pty. Ltd. (supra) to which I have referred, I find that in respect of the transaction with Girvans the plaintiff was a "real estate agent" within the meaning of that term in the Act and as it was not the holder of a corporation licence it was not entitled to sue for or recover. any remuneration for or in respect of that transaction. Accordingly the plaintiff is not entitled to recove~ any remuneration pursuant to the agreement ex. 14. Whatever may be the position regarding the $46,000.00 already paid to the plaintiff, there is no counterclaim seeking its return so that it is not necessary for me to consider this matter. Little need be said concerning the claim pleaded in para. 17 against the third defendant for damages for inducing a breach of contract between the plaintiff and the second and third defendants by procuring and taking part in the deeds of variation. Whatever may be the contract which is referred to fn that paragraph, and this is certainly not clear, there is no -- 20 of 23 -- 20 evidence upon which to base such a claim. In any event, on the authority of O'Brien v. Dawson (1942) 66 C.L.R. 18 the third defendant would not, as a matter of law, have been personally liable in damages for his actions as a director of the second and third defendants. Finally there is the claim pleaded in para. 18 for $454,000.00 on a quantum meruit for services rendered by the plaintiff for and at the request of the defendants. As the claim is pleaded it can relate only to the provision of the feasibility study on or about 12th July, 1985 for the purpose of its being shown to a prospective purchaser. As I have found, the agreement pursuant to which that document was provided was that the plaintiff was to receive commission of $60,000.00 if a sale eventuated and in the event it did not. This provides no basis for a claim on a quantum meruit. However, the plaintiff's claim as argued proceeded on a different basis from that pleaded, namely, that the defendants had been unjustly enriched at the expense of the plaintiff which had contributed the feasibility study and its efforts and, whereas the defendants who had wanted $2.5 million for the sale had received $2,750,000.00, the plaintiff had received nothing. It was submitted that the provision of the feasibility study was severable from any work as an agent and the statute would not prohibit a reasonable fee being paid to the plaintiff for the provision of commercial and professional skills in the feas~bility study. It was suggested to Mr. Guidice in cross-examination that Mr. Richards' work had earned him and his companies "something ¼ ' ' -- 21 of 23 -- 21 a bit more than $400,000.00" and his answer was "Yes, if you put it that way". In whatever way it may be put, the fact remains that the means by which the plaintiff was seeking to be compensated for the work which had been done in bringing about the sale, whether by use of the feasibility study or otherwise, was by way of an agreed sum which was expressed to be for commission. It appears obvious enough, even in the absence of direct evidence on the point, that the sum so agreed was considerably in excess of what an agent's normal commission would have been and it may well have been that the feasibility study, a copy of which had been provided to Girvans by the plaintiff, had contributed to the sale price agreed upon between the first and second defendants and Girvans. However, the plaintiff was precluded from recovering the agreed remuneration because of the operation of s. 70 of the Act and in my view it cannot avoid that result by seeking to split the amount agreed upon as remuneration into two components, one of which represents its remuneration for the work done as an agent which is not recoverable and the other of which is said to represent its remuneration for the work done in the provision of the feasibility study. Quite apart from the fact that this is not in accordance with what is pleaded, in my view such an approach is not permissible, particularly in view of the terms of the agreement ex. 14 itself. Reference was made in the course of argument by counsel for the defendants to Pavey & Matthews Pty. Ltd. v. Paul (1986-1987) 162 C.L.R. 221, although that case was not relied upon by counsel for the plaintiff. In my view that case is clearly distinguishable from the present. It relates to a claim for -- 22 of 23 -- 22 reasonable remuneration for work done and materials supplied under an oral agreement where it was held that s. 45 of the Builders Licensing Act 1971 (N. S. W.) did not prevent the bringing of an action of a quantum merui t. The effect of that section was to make a contract for building work unenforceable unless it was in writing. That differs from the situation under s. 70 of the Auctioneers and Agents Act where, in the circumstances set out in that section, the prohibition is against suing for, recovering or retaining remuneration in respect of the transaction. It follows that the plaintiff's claim on a quantum meruit fails and it does not become necessary to consider the question of quantum. In the result the plaintiff has failed to establish its claim under any of the heads pleaded and accordingly I give judgment for the defendants with costs, including reserved costs if any, to be taxed. -- 23 of 23 --