Moneywood Pty Ltd v Salamon Nominees Pty Ltd B4/1999 [2000] HCATrans 82 (10 March 2000)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B4 of 1999

B e t w e e n -

MONEYWOOD PTY LTD

Applicant

and

SALAMON NOMINEES PTY LTD

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2000, AT 11.18 AM

Copyright in the High Court of Australia

MR W. SOFRONOFF, QC: May it please the Court, I appear with my learned friend, MS K. BUXTON, for the applicant. (instructed by Russell and Company)

MR P.A. KEANE, QC: If the Court pleases, I appear with my learned friend, MR L.D. BOWDEN, for the respondent. (instructed by Brown & Fowler)

MR SOFRONOFF: Your Honours, may I take you directly to the point in issue as it appears in the application book at page 67 in the reasons of Justice Chesterman with whom the Chief Justice agreed.

GUMMOW J: Yes.

MR SOFRONOFF: Your Honours will see that in paragraphs 23, 24 and 25 his Honour recites a submission, which he accepted, that had been made to him by the appellant to the effect that an authority for the purposes of section 67 is one that has to refer to a transaction, either specifically or at least in general terms or by reference to a defined category. If your Honours read paragraphs 23, 24 and 25, I would then take your Honours to page 71 where the same point is repeated by his Honour after he had looked at authorities. In paragraph 36 his Honour says:

The case seems to support the appellant's submission that section 76 requires documentary evidence which has specific reference to the very transaction out of which the claim for commission arises.

Would your Honours go to page 65 of the book where the section appears, section 76. The submission we make concerning Justice Chesterman's interpretation of section 76 is this, that section 76 does not require an authority expressly to refer, whether specifically or generally, to any particular sale or transaction at all. What it requires is that there be evidence of a written authority appointing an agent to act.

KIRBY J: You point out that in some cases the authority will be given when there is no purchaser in contemplation. It may be even years off. It may be just a general retainer.

MR SOFRONOFF: Indeed, we would submit that in most cases an agent will be appointed with a transaction hoped for, but with no particular transaction that could conceivably be in mind because the purpose of the agency is to - - -

KIRBY J: To scout around.

MR SOFRONOFF: For the agent to scout around and bring forward a transaction. So it would be surprising if - although not impossible, as Anderson v Densley exhibits for example - if an authority for the purposes of section 76 did expressly refer, even in general terms, to particular transactions.

KIRBY J: Is this a good vehicle, though, because the problem would not have arisen except for the little slip of not mentioning the name in the second contract? That is the fact, is it not? If the name had gone into the second, as in the first contract for sale, then you would not be here. It is just a little slip that has brought you here and it is a question of whether the facts are so peculiar that one would not engage this Court.

MR SOFRONOFF: Your Honour, in our submission, whether that is a slip or whether it was deliberate on the part of a vendor who was reluctant to pay a commission makes no difference here because what we have here is an example of an authority, in clause 30 of the first contract, which is in perfectly general terms and which, in our respectful submission, Justice McPherson was correct in construing as a perfectly general authority which was anticipatory in nature and which was apt to cover the transaction which did eventuate.

HAYNE J: Is there anything in the material which would show what the ordinary course of practice in Queensland about appointment of agents is, in particular whether the ordinary course of practice is to have a separate written appointment, separate that is from clause 30 of the standard form of contract?

MR SOFRONOFF: No, your Honour, there is no evidence of the kind that your Honour describes. However, there is evidence that the contract in question with the clause of the kind in question is widely used in Queensland, such that about half a million of these are circulated every year. How many are actually used nobody can say, but the REIQ circulates about half a million every year. So the point that arises in this - - -

GUMMOW J: Is there a standard form in general use?

MR SOFRONOFF: There is, your Honour. It is called the REIQ form.

GUMMOW J: That is what I would have thought, yes.

KIRBY J: And that is the form that was used here?

MR SOFRONOFF: Yes. Clause 30, your Honours, which your Honours will find set out at page 61, as Justice McPherson put it, that is a clause in which the draftsperson must have had one eye on section 67 and it is a clause which, in our submission, is simply a general appointment of agency, indeed it does not refer to any particular transaction but, as I submitted a couple of minutes ago, nor would one envisage that an appointment in anticipation of contract would do so.

KIRBY J: But we are not going to get it up here and then have the matter go off on the basis that, given the factual situation that you had the first contract with the person named and then the second without, that the first naming was for that particular transaction and then the second one, no one was named, no authority was given, and it is a different transaction.

MR SOFRONOFF: Your Honour, it is not a different transaction. It is a different contract - - -

KIRBY J: It is different. It is a different contract for a different area of land.

MR SOFRONOFF: It depends how your Honour means the word - - -

HAYNE J: At clause 30, if you take clause 30 and the last words "to introduce a buyer", a buyer of what?

MR SOFRONOFF: Of the land of which the vendor is the owner. We submit that the word "vendor" is pregnant with meaning. A vendor is a person who, in this context, is the owner of land.

HAYNE J: And, relevantly then, is clause 30 to be understood as authorising or engaging the agent to introduce a buyer, what, in respect of any land the vendor owns, in respect of some or all of the land which this vendor is selling or attempting to sell by the first contract? How is it to be understood?

MR SOFRONOFF: It is the land which is for sale. The land which is for sale, and all of which was disposed of, is the land of which the vendor was the vendor under the first contract. Now, it is true that under the second contract only part of the land was sold to the original purchaser, the other part was sold to the Council. Nothing turns on that because, as was found by the trial judge, and as was affirmed on appeal, the applicant was the effective cause of the second transaction. There was an actual oral authority, there was only this evidence that we contend is good evidence in clause 30 of the authority itself for the purposes of section 76, and he was, as was found and is not challenged now, the effective cause of the second transaction. So, but for the missing - - -

GUMMOW J: Now, the transaction with the Council, would that have required a subdivision in Queensland?

MR SOFRONOFF: Yes, your Honour. The original - - -

GUMMOW J: The standard form was talking about lot 1, was it not?

MR SOFRONOFF: Yes, and part of lot 1 - sorry, your Honour, I am interrupting.

GUMMOW J: So part of lot 1 was sold - - -

MR SOFRONOFF: To the Council.

GUMMOW J: Yes, and the balance - - -

MR SOFRONOFF: The remaining portion, the balance is sold to the original purchaser.

GUMMOW J: Neither contract has any further land outside lot 1?

MR SOFRONOFF: No. That is not a problem, of course, because as Sir Garfield Barwick said in Anderson v Densley, it is a long-established principle that if an agent appointed to sell Black Acre, sells part of Black Acre, the agent may be entitled to a rateable part of the commission.

KIRBY J: You will have seen in the respondent's submission they annex that schedule which is on 122 of the application book and they suggest that the legislation is significantly different. I have not analysed it, but you tried to make a point that a provisions of this kind exists in many States, all States, I think. Is it your submission that the legislation is sufficiently similar to make this a point of general application? I must admit, I have not analysed the different provisions yet.

MR SOFRONOFF: Excuse me, your Honour. Your Honour, the Tasmanian legislation to which we make reference at page 116, section 24(1), is similar. The others are different. Page 122 sets out the schedule of provisions and Tasmania is on the right-hand side. But, your Honours, what the reasons of Justice Chesterman and the Chief Justice, who agreed with Justice Chesterman and indeed emphasised the point - your Honours will see it at page 40 - what those reasons established for Queensland, at any rate, is that for an authority to be effective there must be some reference within it, either generally or specifically, to the transaction which is ultimately sued upon. In our submission, all that section 76 requires is that there be a specific appointment of a person to act as an agent for the sale of land or other property. The Act deals with agents other - - -

GUMMOW J: We do not have the whole of the standard form, unfortunately.

MR SOFRONOFF: No.

GUMMOW J: Does the standard form operate on the basis that a particular parcel of land will be identified, or parcels of land, or - - -

MR SOFRONOFF: The standard form, your Honour, contains, on its front sheet, blanks to fill in the land the subject of the transaction, the identity of the vendor, the purchaser, the agent, finance clauses, if any, and terms. So the contract will always contain a description of land the subject of the contract. However - - -

KIRBY J: As a matter of principle, is it not desirable that the law should require a reasonably high degree of specificity, otherwise a real estate agent can say, "Well, five years ago in a transaction which went off, you authorised me", and you get disputes about that. The result of the decision of the Court of Appeal is one which, in a sense, protects consumers from claims by agents in respect of spent or ancient transactions? I know that is not your particular case, but that is the force of what their Honours have held in the majority.

MR SOFRONOFF: Your Honour, in order to succeed, an agent has to establish three things. One is an appointment, the second is that pursuant to that appointment the agent was the effective cause of the sale, and only if the agent establishes those two things can the problem of written evidence of the appointment arise. So it can never be the case that an agent can unjustly claim a commission because, in every case, as my client did here, the agent has to successfully show that he was the effective cause of the transaction. That is perhaps why, in cases like Anderson v Densley, this Court said that although the section says you have to show the appointment is in writing, that only means there has to be some evidence of the appointment; all its terms do not have to be in writing, but there has to be some evidence of the appointment being in writing.

If that is the law, as we submit it is, not having been disestablished in any later case, then it would be surprising if in addition to the fact of appointment being evident in writing, one also had to describe, within the document itself, the transaction or some reference to the transaction.

KIRBY J: Yes, but the problem is the one Justice Hayne mentioned: the transaction here was different; it was not exactly the same. True it is - - -

MR SOFRONOFF: Your Honour, it must have been the same.

KIRBY J: True it is it was sort of the same if you split it up, but there was this corridor for the koalas and there were two transactions.

MR SOFRONOFF: Your Honour, it was relevantly a transaction within the scope of the authority. If we are successful on an appeal and persuading the Court, as we persuaded Justice McPherson, that the terms of clause 30 are capable of covering any sale of which my client was the effective cause, pursuant to its terms - and there is no doubt that my client was the effective cause of the later transaction - it follows, in our submission, that the only question is one of construction: whether a clause in general terms, as clause 30, is sufficient for the purposes of section 76. Justice Chesterman found that it was not, and he was moved - - -

HAYNE J: Does any part of your argument turn upon the inclusion of the words "in the absence of any specific appointment" or upon the inclusion of the word "confirms"?

MR SOFRONOFF: Your Honour, we draw some comfort from the word "confirms" in this case, because there was evidence of any earlier oral appointment.

HAYNE J: Why is this a point of current interest if the current form - am I right in thinking the current form in use is at application book 91?

MR SOFRONOFF: Your Honour, the current clause is at page 93.

HAYNE J: Well, I was basing my conclusion about exhibit DM1 at page 91 - - -

MR SOFRONOFF: I see, I am sorry, your Honour, I missed what your Honour put to me.

HAYNE J: The current clause is clause 10.1 at the top of page 91, is that right?

MR SOFRONOFF: Yes, that is correct, your Honour.

HAYNE J: And thus you are asking us to consider a clause no longer in use.

MR SOFRONOFF: No, your Honour. It will be necessary, in order to deal with the appeal, to construe that clause and deal with it. The point that we are troubling the Court about is whether a clause, whether clause 30 or clause 10.1, must make specific or general reference to the transaction in question. Your Honour will see that clause 10.1 is even in more general terms than clause 30, if that were possible.

HAYNE J: Hence my question to you about whether your argument depends in part upon the words omitted from the current form.

MR SOFRONOFF: No, your Honour. As I said, we draw some comfort from the use of the word "confirms" because here there happened to be an earlier oral appointment. But if there had been no earlier oral appointment, in our submission, in every case an agent who is the beneficiary of a clause like 10.1 or clause 30 would have a valid piece of evidence in writing for the purposes of section 76.

The point remains a live one under the new standard form contract because of the effect of Justice Chesterman's and the Chief Justice's reasons, that a clause like clause 10.1 is inadequate in that it fails to refer to a specific transaction. Read within the context of the contract, their Honours would hold, it is sufficient for the purpose of that transaction, but not as a general authority. We would make this point, your Honours, that if one were to imagine an early appointment of an agent before there was any contract, where the words, "The agent is appointed as the Seller's agent to introduce a buyer" appear, then the Court of Appeal would hold that that is insufficient because it makes no reference to a transaction. So the point is one of general application because of the form of the reasoning of the Court of Appeal which required for its conclusion the construction of the section to which I have adverted a number of times - - -

GUMMOW J: What does the vendor have to do, then, to disengage the agent?

MR SOFRONOFF: Revoke it, your Honour. One simply revokes the authority.

GUMMOW J: Orally?

MR SOFRONOFF: Orally.

GUMMOW J: Because there might be many vendors who think that if contract No 1 falls through, that that is it, everything in it goes for all purposes and that they are not left with the appointment of this particular agent hanging around their neck unless they do something. I do not think it just goes with the collapse of the first contract.

KIRBY J: I understand your argument that you answered me earlier was that they still have to prove that they introduced a particular buyer.

MR SOFRONOFF: That is right.

KIRBY J: This is merely step one. They have got to get into step two as well.

MR SOFRONOFF: That is right, your Honour. In our submission, it is highly material in the context of clause 30, as it was for my client, that the only person who has to execute the contract in order to make the authority effective is the vendor. Your Honours will see that clause 30 does not speak of "upon the execution by the vendor and purchaser of the contract" the appointment is effective, but only the "vendor". So one could imagine an agent relying upon this document when it had only been signed by the vendor and, if the authority had not been revoked and a subsequent transaction takes place which the agent can claim responsibility for. Those are our submissions, your Honour.

GUMMOW J: Thank you Mr Sofronoff. Yes, Mr Keane.

MR KEANE: Thank you, your Honours. Your Honours, just dealing with a number of the points your Honours raised with our learned friends: firstly, the Tasmanian legislation excerpted at page 122 plainly does not use the relevant phrase "in respect of the transaction" or "in respect of such transaction". In relation to your Honours' questions about ordinary practice, there is no evidence about ordinary practice, but we do draw your Honours' attention to the observations of Justice Chesterman at page 68, lines 19 to 21, where his Honour makes the point that the provision in clause 30 is in the nature of a fail safe in the absence of more specific appointment.

KIRBY J: There would not be many specific appointments, though, would there? I may be wrong, but my impression - - -

MR KEANE: Your Honour, there is not any evidence about it but can we say, simply, that your Honour should not make that assumption. the point being that this is a document signed - - -

KIRBY J: I hope that did not offend against the Mickelberg principle, Mr Keane.

MR KEANE: I hope not, your Honour.

GUMMOW J: You are only on special leave.

MR KEANE: In relation to the question of whether the contract was drawn in this way, and the agent left off it - that is the contract that is settled - by reason of a slip, your Honours certainly should not proceed on that assumption either, the point being that, just on the face of the documents, the original contract was executed in March 1994 and the one that actually proceeded to a settlement was in June 1995.

KIRBY J: Yes, but really I think you had better get back to the law because on the merits of the matter you, it seems to me, do not have a particularly strong case.

MR KEANE: Your Honour, we were going to come to those in a moment, if we may. There was just one other further point we need to tidy up arising from your Honours' exchange with our learned friends. That is in relation to clause 10.1, to which your Honour Justice Hayne adverted. That provision has not been relied upon before, no doubt for the good reason that the standard form that is exhibited to Mr McKenzie's affidavit is a new form. It is not the form that was in use at the time, which leads us to make the point that to the extent that this case necessarily involves two issues, one of those issues is necessarily the construction of the contract and that contract is a contract produced by the REIQ - the Real Estate Institute of Queensland, the professional trade organisation of the applicant - and to the extent that there is some disadvantage to the applicants by reason of the construction of clause 30, which the Court has adopted, it is open to those having control of the matter to fix it.

KIRBY J: But he says he does not have to because the phrase "in respect of" is wide enough.

MR KEANE: I understand that, your Honour.

KIRBY J: We have got to fix it up, not them.

MR KEANE: Simply addressing the question of whether there is a general issue that does require the Court to fix it, in the event that there is injustice. As to the issue raised in respect of the construction of the contract, the case was resolved on the footing that, so far as the majority were concerned, that clause 30 was not a sufficient engagement in respect of the transaction which gave rise to commission. Your Honours will see that in the judgment of Justice Chesterman at page 68, paragraphs 27 and 28, with whom the Chief Justice agreed.

Your Honours, can we pause a moment to invite your Honours to look again at the terms of clause 30, which your Honours will find relevantly at page 93 of the record:

In the absence of any specific appointment the Vendor by executing this Contract hereby confirms the appointment of the Vendor's Agent.....as the agent of the Vendor to introduce a buyer.

Your Honours, we would submit, with the greatest respect, that it is necessary to read something else there. In our learned friends' written submissions, the original outline at paragraph 30, they said in respect of the land. But, equally, one might read that provision exegetically as to introduce a buyer under this contract. Indeed, your Honours, with respect, we would submit that is the natural reading of it, having regard to the circumstance that the clause proceeds:

In the absence of any specific appointment the Vendor by executing this contract hereby confirms the appointment of the -

agent to introduce a buyer under this contract.

Your Honour, the majority held that this engagement was indeed remote from the transaction which actually gave rise to the claim for commission, that is to say the settlement of the contract in June 1995, that contract being different in terms of price, in terms of the land sold and in terms of the conditions under which it was sold. Those are pointed out by Justice Chesterman at page 61, in paragraphs 4, 7, 10, 12, 13 and 14.

GUMMOW J: What did Justice McPherson say about your point of construction of clause 30?

MR KEANE: His Honour started from the position that section 76(1)(c) - and his Honour says this at page 58 of outline 25:

sanctions as sufficient.....a written authority which conveys some connection or relation between the written engagement or appointment to act as a real estate agent and the "transaction" out of which the claim for commission arises.

His Honour then goes on to say that clause 30 evinces some connection or relation between the written engagement - - -

GUMMOW J: I am sorry, Mr Keane, which page?

MR KEANE: If your Honour starts at page 58, and one needs to be careful because it is a bit hard to tell the pagination at the top, but page 58 commencing at line 15, paragraph 23, and going over the page after his Honour sets out the kind of relation which, in his Honour's view, section 76(1)(c) requires, his Honour says:

Viewed in that context, clause 30 is, in my respectful opinion, not capable of being considered so broad as to be beyond the proper scope or ambit of section 76(1)(c). I am not unmindful of the force of some of the concerns expressed by Justice Chesterman in his reasons on this appeal concerning the consequences of a potentially "open-ended" interpretation of section 76(1)(c). In my opinion, however, the requirement that the authority must operate in respect of a "transaction" and also that the agent must, in the end, establish that it was through his or her agency that the sale was brought about, are adequate to exclude the worst excesses that may be imagined for the future, in the same way as, on my view of the authorities, in particular Caniffe v Howie, they have in relation to section 76(1)(c) successfully done so in the past.

Can we say two things about that, your Honours. The first is that his Honour's reading of section 76(1)(c) and the reference to "transaction" reads it as unqualified by the words "such transaction", an omission which, in our respectful submission, indicates the correctness of the majority on this point. Secondly, that his Honour's open-ended view, which regards as sufficient some connection between the engagement and the sale of the land or, perhaps, some part of the land at some time in the future, is indeed, with respect, open-ended and it is certainly, in our respectful submission - - -

KIRBY J: It is not open-ended really because you have got to find the second ingredient, as Justice McPherson mentions. It is not open-ended.

MR KEANE: That, your Honour - - -

KIRBY J: You could just have a little variation for a right of way. Think of the tiniest variation, and you say, "This is an absolutely new transaction", but you have still got to prove that you introduced the buyer. That is the protection.

MR KEANE: Your Honour, with respect - - -

KIRBY J: Look at the circumstances of this case. A koala corridor was imposed, it was introduced; it is exactly the same land except for the koala corridor. The vendor gets the benefit of the buyer who was introduced. I just feel that Justice McPherson has given a pretty good answer there on the passage you drew our attention to.

MR KEANE: And, your Honour, the vendor did not get to sell his land and turn his land into cash for 15 months during which he was required to negotiate in extenso with the Council in circumstances - - -

KIRBY J: That is not the applicant's fault; that is the koalas' fault.

MR KEANE: Well, your Honour, if the question is whether the vendor - - -

KIRBY J: You are not sounding very friendly to koalas, Mr Keane.

MR KEANE: Your Honour - - -

HAYNE J: Some of your best friends are - - -

MR KEANE: I live with them, your Honour, and the friendship wears thin over time. But if one is concerned with the distinction, or with the question of adequate protection to the vendor, we simply make the point that one can have, as one had here, a serious dispute on the question of effective cause, ultimately determined after a number of hearings in favour of the agent, in circumstances where certainty and the protection of the consumer from the necessity for such litigation does suggest that it is desirable, at the least, that the engagement be clear in respect of the transaction.

The parties should not be sent off, in our respectful submission, to have some no doubt enjoyable litigation, at great expense, through several tiers of appeal, to try to determine the question of effective cause on the footing that that is a sufficient protection for the consumer, on the footing that the protective provisions of the legislation are sufficiently complied with by an engagement which conveys some connection which the parties will then have to litigate about as well to see if it is sufficient whereas, in relation to this particular protective provision, we submit that to give it its proper effect one reads the text and the reference in section 76(1)(c) to "such transaction" as naturally referring to the transaction giving rise to the right to commission. That is the transaction which involves the sale of the property and turning of the property into money which provides the fund from which the commission is to be paid.

KIRBY J: Are we to infer that this was simply a slip in failing to mention the agent in the second contract? If that had happened, we would not be here.

MR KEANE: I was coming to that when your Honour told me to get to the merits of the case - - -

KIRBY J: This is the merits.

MR KEANE: What I was going to say - - -

KIRBY J: It does seem as though your case is dripping with factual merit. You have scored a few points on the law, though.

MR KEANE: Your Honour says that but, of course, your Honour realises that as Justice Chesterman said, at least there was much to be said for the view - the view that ultimately did not prevail - that having regard to the matters that happened between the first contract and the settlement of the second, there was much to be said for the view that perhaps there was not the necessary efficacy in the applicant's agency. But that is a dispute that was litigated and it has been lost. It is part of our case that one would seek to avoid those disputes if one could, rather than say to the parties, "Well, you can have that dispute on the basis that we can basically treat section 76(1)(c) as not a particularly strict provision."

KIRBY J: Yes, but look at this case. It is held that the agent introduced the buyer and then suddenly they have to make this corridor and it is the same land, and you walk away without having to pay the agent fee. The words in the statute are "in respect of the transaction". Justice McPherson's judgment says it all: it is either - there are two points of view here, but - - -

MR KEANE: In respect of "such transaction", your Honour, being the transaction in relation to which the claim for commission is made. In relation to your Honour's query about whether it was a slip, the position is that the second contract was not drawn by the agent, it was not a slip. This contract came into existence 15 or 16 months later after all the other negotiations - - -

KIRBY J: Who drew the second contract? Was that somebody in your camp, was it?

MR KEANE: Our solicitors, your Honour.

KIRBY J: Your solicitors?

MR KEANE: Yes.

KIRBY J: They just happened to omit the name of the agent.

MR KEANE: Your Honour, as we say, there is no question of a slip about that; that was no doubt deliberate.

KIRBY J: Yes.

MR KEANE: So that in summary, your Honours, our submission in relation to the prospects of success on appeal, we have made our submissions to your Honours on the footing that as to the suitability of the case as a vehicle for special leave, it is really a rather narrow case. It does not involve a question of construction of legislation mirrored in any other State. It involves a form of contract which if it is indeed productive of injustice, is capable of remedy by the union who acts for the applicant. It is a fail safe provision in the absence of more specific authority.

In relation to the prospects of success on appeal, our submission is that in terms of the construction of the contract, the natural reading of clause 30 is to regard it as focussed upon "the contract". By executing the contract, they confirm the agency to introduce a buyer under the contract. In relation to section 76(1)(c), it is our submission that, as the Chief Justice said at page 40 - - -

GUMMOW J: When it says "by executing the contract", it may not be a contract at the time of execution and it will not be. What they are really talking about, it means by executing this instrument. That is not against you, it seems to me.

MR KEANE: No, quite, but in any event, your Honour, it is focussing upon - - -

GUMMOW J: This instrument.

MR KEANE: - - - particular charter.

GUMMOW J: Yes.

MR KEANE: Your Honour, as the Chief Justice said at page 40, echoing the views of Justice Chesterman:

There is no doubt that section 76 requires a written appointment in respect of the specific transaction giving rise to the claim for commission.

Your Honours, it may be the case, as Justice Chesterman recognised at page 67, that one could have an engagement cast in general terms, but at least it must contemplate the transaction in relation to which the claim for commission is ultimately made, that being "such transaction". To read the section otherwise is simply to do violence to the language that has been used, and to do violence to the language that has been used, contrary to the interests of consumers, the evident intention of the legislation it was to protect.

Those are our submissions, if it please the Court, unless the Court has something specific for us.

GUMMOW J: Thank you, Mr Keane. Mr Sofronoff?

MR SOFRONOFF: Your Honours, in our submission, the respondent's submissions clearly crystallise the conflict of views between the minority, Justice McPherson and the majority in the Court of Appeal.

GUMMOW J: I should say to you, I am a little worried by the analysis by Justice McPherson, or what Mr Keane says are the defects of the analysis by Justice McPherson, of the effect of the actual clause 30 itself.

MR SOFRONOFF: At which passage, your Honour?

KIRBY J: It is page 59, line 6.

GUMMOW J: Yes, that is it:

Viewed in that context, clause 30.....not capable of being considered so broad -

I am not really sure what that means.

MR SOFRONOFF: What his Honour was dealing with there is the submission - - -

GUMMOW J: I mean, one construes clause 30.

MR SOFRONOFF: Yes. I think what his Honour was addressing there was what we would call the in terrorem argument that appealed to Justice Chesterman.

GUMMOW J: Yes, but where else does his Honour construe clause 30?

MR SOFRONOFF: Well, he begins, your Honour, at page 55, at paragraph 19, and then considers the earlier relevant cases, Bradley v Adams and Caniffe v Howie and Anderson v Densley, and compared the clause in Anderson v Densley earlier in his reasons, concluding at page 53. So, what his Honour was doing was putting to one side those cases and then coming to the question of the requirements of the section, and whether the clause in clause 30 satisfied the section. But what emerges from that, in our submission, is that there is a clear conflict between the two sets of reasons as to the requirement that section 76 imposes. As our learned friend - - -

KIRBY J: But what do you say about Mr Keane's submission that the one big advantage of the majority view is that at least it is very clear, and every real estate agent will know that it is clear and they have just got to get their name on the contract or they have to get a specific authority, and that you do not get litigation about the issue? That is quite an important policy point favouring the view of the majority.

MR SOFRONOFF: But as here, your Honour, the agent may have no power to get their name on to the contract. By that time it is too late, and if a vendor wishes to avoid paying a commission by relying on section 76, then the agent has no power to insert the agent's name into the contract. Your Honour, could I briefly say that with respect to the contention that Justice Chesterman's interpretation would preclude disputes about effective cause, of course it would not do that because even if you had a written authority referring to a set of general transactions or even referring to this transaction, the agent may not have been the effective cause.

GUMMOW J: Mr Sofronoff, am I right in thinking that in so far as Justice McPherson analysed clause 30, he did so at page 54, line 25 - - -

MR SOFRONOFF: Paragraph 18, your Honour.

GUMMOW J: Yes, over to the first line of page 55.

MR SOFRONOFF: No, your Honour, it goes on for the body of paragraph 18, which is just above line 15 on page 55.

GUMMOW J: Yes, thank you.

MR SOFRONOFF: Thank you, your Honour.

GUMMOW J: We will take a short adjournment.

AT 12.01 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.06 PM:

GUMMOW J: Gentlemen, there will be a grant of special leave in this matter. Mr Sofronoff, it would be dealt with in one day or less, would it not?

MR SOFRONOFF: Yes, your Honour, less than one day.

GUMMOW J: Yes, I would think so. You agree with that, Mr Keane?

MR KEANE: Yes, your Honour.

GUMMOW J: Thank you, gentlemen.

AT 12.07 PM THE MATTER WAS CONCLUDED