Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd
[2012] QSC 401
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- Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd[2012] QSC 401
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Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd[2012] QSC 401
Superyacht Technologies Pty Ltd v Mackeddie Marine Pty Ltd[2012] QSC 401
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NOS: | |
Trial Division | |
PROCEEDING: | Claim |
ORIGINATING COURT: | |
DELIVERED ON: | 13 December 2012 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 12, 13 and 14 November 2012 |
JUDGE: | Applegarth J |
ORDER: | In proceeding 4097 of 2010: Judgment for the defendant. In proceeding 11982 of 2010: Judgment for the plaintiff, the third defendant and the fourth defendant against the first defendant and the second defendant in the sum of $1,140,000, together with interest in the sum of $240,805. |
CATCHWORDS: | CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – CONSTRUCTION AND INTERPRETATION OF CONTRACTS – OTHER MATTERS – where the plaintiff and first defendant entered into an agreement for the plaintiff to manage the sale of a yacht “on a Central Agency basis” – whether the plaintiff is entitled to payment of a fee under the agreement if a legal, as distinct from beneficial, interest in the yacht is transferred to a buyer – where the plaintiff and defendants entered into a second agreement for the sale of the yacht “on a Central Agency basis” – whether entry into the second agreement extinguished any entitlement to payment the plaintiff may have had under the first agreement – where clause 9(b) of the second agreement provides for payment of a fee where the yacht is sold within 12 months of termination of the agreement to a seller introduced to the yacht during the term of the agreement – whether the plaintiff is entitled to payment under the second agreement Shipping Registration Act 1982 (Cth), s 47 Uniform Civil Procedure Rules 1999 (Qld), r 63 Berezovsky v Edmiston & Co [2010] EWHC 1883 (Comm), cited Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, cited Doyle v Mount Kidston Mining and Exploration Pty Ltd [1984] 2 Qd R 386, cited Far North Queensland Ports Corporation v Owners of the Ship “Captain Senrab” [2012] QSC 86, cited Foxtons Ltd v Pelkey Bicknell & Anor [2008] EWCA Civ 419, cited LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52, cited Mackenzie v Kentcade Properties Pty Ltd [2012] QSC 299, cited Millar, Son & Co v Radford (1903) 19 TLR 575, cited Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351, cited The Ship Gem of Safaga v Euroceanica (UK) Ltd (2010)182 FCR 27, cited Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604, cited |
COUNSEL: | M D Alexander for the plaintiff in both 4097 of 2010 and 11982 of 2010 J B Sweeney for the defendant in 4097 of 2010 and the first and second defendants in 11982 of 2010 |
SOLICITORS: | Felix Law for the plaintiff in both 4097 of 2010 and 11982 of 2010 Phil Shakespeare for the defendant in 4097 of 2010 and the first and second defendants in 11982 of 2010 The third and fourth defendants in 11982 of 2010 did not appear at the trial |
The first proceeding – 4097 of 2010
[1] The plaintiff (“Superyacht”) is a yacht broker. In the first proceeding it sues for payment of a fee it alleges is due to it from Mackeddie Marine Pty Ltd (“Mackeddie”) under an agreement made between it and Mackeddie dated 19 May 2008 (“the first agreement”). The first agreement, headed “Yacht Sales Central Agency Agreement”, authorised Superyacht on and from 19 May 2008 to manage the sale of Platinum “on a Central Agency basis on behalf of [Mackeddie] representing the selling interests”. The selling interests were defined as “Seller”. Clause 4 of the first agreement relevantly provided:
“Upon completion of the sale of the Yacht, or if it is otherwise transferred or conveyed during the terms of this Agreement, or in the event that a Buyer acquires a beneficial interest in the ownership of the Yacht, the Seller agrees to pay the Central Agents a fee comprising:
- 10% of the gross sale price, whether or not the Buyer has been introduced by the Central Agents or by a Sub-Listed Broker.
- GST thereon, where applicable.”
[2] Superyacht alleges that on 27 June 2008 Mackeddie transferred 24 of 64 shares in the luxury yacht Platinum to Peninsula Searoad Transport Pty Ltd (“Peninsula”), and this entitles it to a fee pursuant to cl 4 of the first agreement.
[3] Mackeddie defends the first proceeding on the grounds that Peninsula became the beneficial owner of the shares in Platinum pursuant to an agreement reached in early May 2007 between Mr Jack Mackeddie on behalf of Mackeddie and Mr John Barnes on behalf of Peninsula. Its case is that the Bill of Sale dated 27 June 2008 was executed merely to effect registration of Peninsula’s interest in the vessel. Mackeddie contends that “the selling interests” described in the first agreement were Mackeddie and Peninsula. It also contends that there was no sale or transfer of the beneficial interest of the Peninsula shares in Platinum on 27 June 2008. Mackeddie’s position is that Peninsula had acquired its beneficial interest in Platinum before the first agreement.
[4] Mackeddie also defends the first proceeding on the ground that Superyacht was not the effective cause of the 24 shares being transferred on 27 June 2008. Finally, it defends on the ground that on 4 August 2008 a second agreement was entered into, and that the second agreement was entered into in consideration of the extinguishment of the parties’ rights and obligations under the first agreement, including any rights to commission which Superyacht had by reason of what occurred on 27 June 2008.
[5] Prior to the trial, the parties agreed that the issues to be determined in the first proceeding were as follows:
1. At May 2008, was Peninsula a 37% beneficial owner of Platinum?
2. Was the May 2008 agreement signed by Jack Mackeddie on behalf of both Peninsula and Mackeddie (as “the selling interests”)?
3. Was the transfer effected by the Bill of Sale of 27 June 2008 the only transfer of any legal or beneficial interest in Platinum from Mackeddie to Peninsula?
4. Can the transfer of an interest in Platinum from Mackeddie to Peninsula effected by the Bill of Sale of 27 June 2008 be a transaction on the happening of which Superyacht acquires a right to commission?
5. Did entry into the second agreement extinguish any obligations or entitlements under the first agreement?
6. What is the amount of commission, if payable?
The second proceeding – 11982 of 2010
[6] Not long after the first agreement was entered into it was decided that overseas brokers should be involved in the sale process. The Burgess Group is based in the United Kingdom. On 4 August 2008 another “Yacht Sales Central Agency Agreement” was entered into (“the second agreement”). It authorised Superyacht “and the Burgess Group (to include Burgess and Oceanstyle Yachting), hereafter called the Joint Central Agents” on and from the commencement date of 4 August 2008 to manage the sale of Platinum on a “Central Agency basis on behalf of [Mackeddie] representing the selling interests”.
[7] The agreement of 4 August 2008 was signed for and on behalf of Superyacht, for and on behalf of Mackeddie and for and on behalf on The Burgess Group. It is accepted in these proceedings that the “Joint Central Agents” referred to in the second agreement are Superyacht, Nigel Burgess Ltd (a company registered in the United Kingdom) and Oceanstyle Yachting Ltd (a company registered in the United Kingdom). Nigel Burgess Ltd and Oceanstyle Yachting Ltd were joined as third and fourth defendants respectively for the purpose of complying with r 63(2) of the Uniform Civil Procedure Rules 1999. If Superyacht establishes an entitlement in the second proceeding to the commission claimed by it against Mackeddie and/or Peninsula, then the parties who appeared at the trial agree that the appropriate course will be for judgment to be entered in favour of Superyacht, Nigel Burgess Ltd and Oceanstyle Yachting Ltd. No issue arises in these proceedings for my determination about the respective interests of Superyacht, Nigel Burgess Ltd and Oceanstyle Yachting Ltd to share in any such judgment.
[8] In the second proceeding Superyacht sues for payment of a fee alleged to be owed to it pursuant to the second agreement. The second agreement was essentially in the same terms as the first agreement. In effect, the second agreement added additional parties. Instead of referring to the “Central Agent” it referred to the “Joint Central Agents”. Clause 9(a) states:
“In (sic) initial period of this Agreement shall be 6 calendar months or the concluded sale of the Yacht, whichever the earlier. Thereafter, this Agreement shall remain in effect until the Yacht is sold unless this Agreement is cancelled by either party giving the other party ninety (90) days’ prior written notice of cancellation.”
Clause 9(b) provides:
“If this Agreement is terminated and the Yacht is transferred, sold or conveyed (or in the event that a Buyer acquires a beneficial interest in the Yacht in accordance with Clause 4) within twelve (12) calendar months thereafter to a Buyer who was introduced to the Yacht during the term of this Agreement, then the full fee as set out in Clause 4 shall be payable to the Joint Central Agents.”
[9] The second agreement commenced on 4 August 2008. On 15 October 2009 notice was given to Superyacht terminating the agreement.
[10] Platinum was sold to AM Bennett Pty Ltd and the sale was completed in or about August 2010. AM Bennett Pty Ltd became the sole registered owner of Platinum on or about 10 September 2010.
[11] Superyacht’s claim in the second proceeding is based on the undisputed fact that AM Bennett Pty Ltd (“the Buyer”) was introduced to Platinum during the term of the second agreement and the Platinum sale occurred within 12 calendar months after termination of the second agreement. On that basis it claims that, upon a proper construction of cl 4 and cl 9 of the second agreement, Superyacht became entitled to payment of a fee.
[12] Mackeddie and Peninsula defend the proceeding on the basis that, on a proper interpretation of the second agreement, and of cl 9(b) in particular, where a sale of Platinum occurred after the second agreement had expired, the Joint Central Agents were only entitled to a fee (by way of commission) if Platinum was sold to a purchaser:
(a)introduced to Platinum by the Joint Central Agents or one of their Sub-Listed Brokers;
(b)so introduced during the term of the agreement; and
(c)where such sale occurred within 12 months of the termination of the agreement.
[13] Mackeddie and Peninsula say that none of the Joint Central Agents and none of their Sub-Listed Brokers introduced the Buyer to Platinum during the term of the agreement or otherwise. Their case is that Mackeddie did that in July 2009. Superyacht does not contend that it or any other of the Joint Central Agents or their Sub-Listed Brokers introduced the Buyer to Platinum during the term of the agreement or otherwise.
[14] The parties agree that the issue for determination in the second proceeding is as follows:
“Given the fact that none of the Joint Central Agents, and none of their Sub-Listed Brokers, introduced AM Bennett Pty Ltd to the ship Platinum (whether during the term of the agreement or otherwise), is the sale of Platinum to AM Bennett Pty Ltd in August 2010 (which occurred within 12 months of the termination of the agreement) an event of the type described in clause 9(b)? In other words, was commission only payable if Platinum was sold to a purchaser introduced to Platinum by the Joint Central Agents or one of their Sub-Listed Brokers during the term of the agreement?”
This issue is one of contractual interpretation.
Factual background
[15] Mr John Barnes is the founding director of Peninsula. Its main business is running the Queenscliff to Sorrento car ferry in Victoria. Mr Barnes’ background is in investment banking. Between 1988 and 1997 he was the chief executive officer of Bain & Co, which later became Deutsche Bank Australia. His main business interest outside of investment banking was Peninsula.
[16] Mr Barnes has known Mr Jack Mackeddie since about 1988, when Mr Mackeddie joined the ferry company as a master. Mr Barnes and Mr Mackeddie became, and remain, close friends.
[17] Mr Barnes’ companies, Negole Pty Ltd (“Negole”) and Jemco Pty Ltd, own 95 per cent of the units in a trust which is the ultimate owner of Peninsula. A company associated with Mr Mackeddie owns the other five per cent of the units.
[18] In 2004 Mr Mackeddie’s company, Mackeddie Marine Pty Ltd, was planning to build a large luxury ship intended to be called “MV Platinum”. Mr Mackeddie intended that Mackeddie would complete the ship and use it for charters. He expected that it would cost in the order of $4.3 million to construct, fit out and commission. He arranged for finance with the National Australia Bank (“NAB”). Construction commenced in 2005. In June 2005 Mr Mackeddie told Mr Barnes that the budget for Platinum had blown out from $4.3 million to $5.3 million. Mr Barnes agreed to increase a loan facility from Negole to Mr Mackeddie’s company, Fortrose Investments Pty Ltd, from $500,000 to $1.5 million in order to provide additional finance.
[19] By 14 November 2006 the hull of the vessel was at the stage where it was capable of registration and on that date the ship was registered by Mackeddie in order to retain the name Platinum. Mackeddie was registered as the owner of 64 shares in the yacht. A mortgage in favour of the National Australia Bank was registered on 30 January 2007.
[20] By about April 2007 there had been further “cost blow-outs” and Mackeddie could not borrow any further money from the NAB, since it could not service any more debt. Mr Mackeddie turned to his long-term friend, Mr Barnes, for help. He initially thought that he would need about $700,000 to finish the ship. Mr Barnes agreed that Negole would lend the money, interest free, on an unsecured, short-term basis until they could put a longer-term solution in place. A loan agreement between Peninsula and Mackeddie dated 1 April 2007 was prepared, but was not signed in April 2007 because of further developments. However, advances totalling $300,000 were made by Peninsula that month.
[21] By 21 April 2007 Mr Barnes had gained a better understanding of Mr Mackeddie’s predicament. On that day he sent an email to Mr Mackeddie, which was copied to their mutual accountant, in which he confirmed that Mackeddie could draw up to $750,000 from Peninsula. The email stated:
“When Platinum is completed either Negole or Jemco Trust will purchase a share in ‘Platinum’ which will enable Mackeddie Marine to repay the short-term loan from [Peninsula]. The share will be calculated as the proportion which the sum paid represents to the total construction cost of Platinum.”
[22] On 24 April 2007 Mr Barnes received advice from his accountant which suggested that the preferable course was for Peninsula, rather than the other entities suggested by Mr Barnes, to be the owner of the share in Platinum. Mr Barnes acted on this advice.
The agreement of 3 May 2007
[23] On 3 May 2007 Mr Mackeddie and Mr Barnes met at Mr Barnes’ home. By this time it had become clear to Mr Mackeddie that the promised $750,000 was not going to be enough to complete the ship. He thought that the amount would be $1,350,000. Mr Barnes and Mr Mackeddie discussed his financial predicament. They reached an oral agreement to vary the existing arrangements. The agreement was that Peninsula would fund the balance of the costs of completion of the ship and take equity in it. Peninsula’s percentage of equity in the ship would be the amount of the construction cost that was to be funded by it as a proportion of the total construction cost. They also agreed about the funding of operating costs. To ensure that there was no misunderstanding about the nature of the arrangement, Mr Barnes gave Mr Mackeddie an example of how the arrangement would work out.
[24] Superyacht submits that up to and including the date of the first agreement Peninsula was nothing more than an unsecured mortgagee. However, I do not accept this submission. It would require me to reject the evidence of Mr Barnes and Mr Mackeddie about the agreement which was struck by them. However, I accept their evidence in that regard. Superyacht’s submissions place reliance upon the fact that the agreement made in early May 2007 was not documented at the time. Instead, the draft loan facility letter dated 1 April 2007 was amended to increase the figure of $750,000 to $1,350,000. The purpose of the $1,350,000 remained that stated in the loan facility letter, namely to complete construction of Platinum. However, the absence of contemporaneous documentation of the agreement that was made at Mr Barnes’ home in early May 2007 is understandable. Mr Barnes and Mr Mackeddie trusted each other. They were good friends. Mr Barnes wanted to assist Mr Mackeddie, who was very important in running the ferry company. His evidence that he said to Mr Mackeddie that day:
“Look, I’ll provide the funds to finish this vessel. We will do it as equity”,
was convincing and probable. The proposal to take equity had developed in late April 2007 and the proposal was the subject of an oral agreement reached between Mackeddie and Peninsula in early May 2007.
[25] Superyacht notes that the agreement was not particularised in Mackeddie’s defence. However, its defence pleaded that Peninsula had beneficial title to a share in the ship prior to 19 May 2008, and the affidavits of Mr Barnes and Mr Mackeddie that were filed in May 2010, shortly after the first proceeding was commenced, each gave sworn evidence about the agreement that was reached in early May 2007 for Peninsula to provide the funds that were required to complete the ship on the basis that it took equity in it.
[26] The agreement provided a mechanism by which Peninsula’s equity would be calculated once the ship’s construction was completed. It might be possible to characterise the agreement made on 3 May 2007 as, in effect, a joint venture to complete the ship, sell it, and split the profits. That was Mr Mackeddie’s understanding of its effect. However, a preferable characterisation of the agreement is one by which Mackeddie agreed to sell an interest in the ship, or to use the language used by the parties, “equity in the ship”. On this characterisation, the agreement to sell an interest in the ship may not have culminated in a sale until the date construction was completed. Alternatively, Peninsula acquired an interest in the ship on 3 May 2007 and that interest grew over time as additional construction costs were incurred, which Peninsula had agreed to fund. On either characterisation, Peninsula acquired the beneficial interest to which it was entitled pursuant to the agreement of 3 May 2007 once the construction of the vessel was completed in early May 2008, by which time all of the construction costs had been incurred.
[27] The vessel was commissioned on 1 May 2008. By early May 2008 Mr Barnes was in a position to calculate Peninsula’s share in the vessel. He explained that he was able to do that because all the expenditure had been incurred at that stage, although some suppliers did not lodge their accounts until the end of the month. Rather than calculate the share in early May 2008, this was done in June 2008. As Mr Barnes explained, it was a matter of convenience to do the calculations in June 2008. He also wanted to complete “the mechanics” involved in the agreement that had been reached about a year earlier. On 22 June 2008 Mr Barnes wrote to his and Mr Mackeddie’s accountant about Platinum. He stated:
“On 1 May 2008 being the date that Platinum was commissioned, Peninsula Searoad Trust bought a share of MV Platinum at cost from Mackeddie Marine Pty Ltd.”
He sought advice about the accounting treatment, namely whether the purchase should be by way of journal entries or through bank accounts. Matters were progressed and, on the basis of worksheets, Peninsula’s share was calculated to be 37.5 per cent. An invoice was generated in respect of Peninsula’s “37.5% share in 38.5m motor yacht ‘Platinum’”. On the same day, 27 June 2008, a Bill of Sale from Mackeddie to Peninsula was executed transferring 24 out of 64 shares in the ship. Monies were transferred by Peninsula to Mackeddie and Mackeddie used that money to repay its debt to Peninsula. These transactions carried into effect the agreement which had been made on 3 May 2007, and were necessary to document the effect of the earlier agreement.
Issue 1: Had Peninsula acquired a beneficial interest in Platinum prior to the first agreement?
[28] By no later than the first week of May 2008, when Platinum was commissioned, all of the expenses which Peninsula had promised to fund had been incurred. Peninsula had an obligation to pay them. Those expenses were far greater than Mr Mackeddie and Mr Barnes had anticipated in May 2007 when their agreement was made. By 4 May 2008 a total of $3,250,000 had been drawn from Peninsula. A further amount of $150,000 was paid on 10 June 2008 bringing the total amount to $3,400,000.
[29] The National Australia Bank “were more than happy” for Mr Barnes to fund the completion of the vessel pursuant to the agreement which he and Mr Mackeddie reached in May 2007.
[30] I conclude that pursuant to the agreement made between Mr Barnes on behalf of Peninsula and Mr Mackeddie on behalf of Mackeddie in early May 2007, Peninsula became beneficial owner of an interest in Platinum. Its share or equity reflected the amount of the construction cost that it agreed to fund as a proportion of the total construction cost. By the time of the first agreement with Superyacht dated 19 May 2008, Peninsula had acquired a beneficial interest of approximately 37.5 per cent based upon its payment or promise to pay the construction costs that had been incurred. Peninsula acquired this interest no later than early May 2008. Its percentage share of 37.5 per cent was calculated in June 2008.
[31] I find that as at May 2008, and prior to the first agreement with Superyacht being made on 19 May 2008, Peninsula had acquired a beneficial interest of approximately 37.5 per cent in Platinum.
Issue 2: Was the first agreement signed by Mr Mackeddie on behalf of both Peninsula and Mackeddie as “the selling interests”?
[32] This issue is relatively inconsequential. As noted, the first agreement was signed by Mr Mackeddie “for and on behalf of Mackeddie Marine Pty Ltd”. The authority given by it to Superyacht was to manage the sale of Platinum on behalf of Mackeddie “representing the selling interests (‘Seller’)”.
[33] Mr Barnes and Mr Mackeddie may have appreciated at the time the agreement was signed that “the selling interests” were Mackeddie and Peninsula. I am not satisfied that Superyacht’s director, Mr Hashfield, had the same understanding. The fact that the agreement was cast in the plural (“the selling interests”) does not prove that
Mr Hashfield understood that Peninsula had an interest in the vessel. The form of words may have been drawn from the precedent upon which Mr Hashfield relied in drafting the agreement.
[34] It is sufficient to conclude the present issue by finding that in signing the agreement Mr Mackeddie intended to appoint Superyacht to sell the combined interests of Mackeddie and Peninsula in the vessel.
[35] Some evidence was given about discussion that occurred on 25 May 2008 at the Sanctuary Cove Boat Show. Little turns on this. This was the first occasion upon which Mr Barnes met Mr Hashfield. Mr Mackeddie introduced Mr Barnes to Mr Hashfield that day as his “business partner” or “business associate”. I am not satisfied that Mr Mackeddie went further that day and told Mr Hashfield that Mr Barnes had a share in the boat. Mr Mackeddie may have said that Mr Barnes had an interest in the boat, and Mr Hashfield may have understood this to mean that Mr Barnes had an interest in it as a potential purchaser. Mr Barnes accepted during his cross-examination that at no point did he tell Mr Hashfield that he was an owner of the vessel.
[36] It is unnecessary to resolve the different recollections of the witnesses about what was said that day. I think it likely that there was some misunderstanding. If Mr Mackeddie said that Mr Barnes had an interest in the vessel, then Mr Hashfield did not understand this to mean that he had an existing beneficial interest. Mr Hashfield treated Mr Barnes as Mr Mackeddie’s business associate, showed him around the vessel and offered him promotional material.
Issue 3: Was the transfer effected by the Bill of Sale of 27 June 2008 the only transfer of any legal or beneficial interest in Platinum from Mackeddie to Peninsula?
[37] This issue has been largely addressed in my findings on Issue 1. As I have found, a beneficial interest was transferred from Mackeddie to Peninsula and this transfer was effected by early May 2008. The transactions that were documented on 27 June 2008 did not have the effect of transferring a beneficial interest in 37.5 per cent of Platinum to Peninsula. Peninsula had acquired that beneficial interest by early May 2008 when all the costs that it had paid or committed to pay had been incurred.
[38] If I am wrong in that conclusion and Peninsula had acquired about 36.9 per cent by the date upon which the vessel was completed, then it acquired an additional one per cent when it paid an additional $150,000 on 10 June 2008. The defendants’ supplementary submissions calculate the percentages as 36.89 per cent based on actual payments of $3,250,000 as at 4 May 2008 and 37.94 per cent as at 10 June 2008 when payments totalling $3,400,000 had been made. However, Superyacht’s claim for commission is not one which alleges that one or two per cent of the vessel was acquired by Peninsula after the first agreement was entered into. Its case is that a transfer of a 37.5 per cent share occurred on 27 June 2008 when a Bill of Sale was executed by Mackeddie which recorded a transfer of 24 of 64 shares to Peninsula. It relies on the Bill of Sale, the tax invoice also dated 27 June 2008 and the payment of the purchase price that day.
[39] Mackeddie and Peninsula explained that the “round robin” of payments occurred. The documents were brought into existence because Mr Barnes had asked his accountant whether the transaction should be handled by journal entries. Instead, payments were made through bank accounts. The effect of these transactions was to put Mackeddie in sufficient funds to enable it to repay its debt to Peninsula. The transactions also permitted Peninsula to properly record its ownership of its 37.5 per cent interest in Platinum in its balance sheet.
[40] The Bill of Sale transferred a legal, as distinct from beneficial, interest in 37.5 per cent of Platinum.
[41] Section 47 of the Shipping Registration Act 1982 (Cth) recognises that beneficial interests may be enforced by or against the owner of a ship or a share of a ship in the same manner as in respect of any other personal property.[1] Under Australian law one party may be the legal owner of a ship and another party may be the beneficial owner.[2]
[42] I conclude that the transfer effected by the Bill of Sale of 27 June 2008 was a transfer of legal ownership. Peninsula’s beneficial interest in that share of the vessel had previously been acquired by it.
Issue 4: Can the transfer of an interest in Platinum from Mackeddie to Pensinsula effected by the Bill of Sale of 27 June 2008 be a transaction on the happening of which Superyacht acquires a right to commission?
[43] The Bill of Sale recorded that 24 shares in Platinum were transferred. The issue, however, is whether this transfer of legal title was one which, upon the proper interpretation of the first agreement, entitled Superyacht to a fee. The threshold question is what, on the proper construction of the agreement, is the event on the happening of which the agent acquires a right to commission. The principles governing the construction of commercial contracts are not in dispute.[3] It is convenient to again set out the relevant part of cl 4 of the first agreement:
“Upon completion of the sale of the Yacht, or if it is otherwise transferred or conveyed during the terms of this Agreement, or in the event that a Buyer acquires a beneficial interest in the ownership of the Yacht, the Seller agrees to pay the Central Agents a fee comprising:
- 10% of the gross sale price, whether or not the Buyer has been introduced by the Central Agents or by a Sub-Listed Broker.
- GST thereon, where applicable.”
Under this clause an entitlement to be paid a fee may arise upon the happening of certain events. One is the sale of the yacht. Another is if the yacht is otherwise transferred or conveyed during the term of the agreement. The third and relevant event for present purposes is that “a Buyer acquires a beneficial interest in the ownership of the Yacht”.
[44] Peninsula acquired a beneficial interest in the ownership of Platinum, being the beneficial interest that was calculated to be 37.5 per cent. However, it acquired this beneficial interest in the yacht prior to the first agreement coming into existence.
[45] Clause 4 relevantly defines the event as the acquisition of a “beneficial interest in the ownership” of Platinum. The transfer of a legal interest in a share of the yacht is not an event which gives rise to an entitlement to the fee. The transfer of 24 of 64 shares on 27 June 2008 pursuant to the Bill of Sale and associated documents are relied upon by Superyacht as entitling it to a fee by way of commission pursuant to cl 4 of the first agreement. However, as a matter of construction, the transfer of only legal ownership of the relevant interest on that day did not give rise to an entitlement to be paid a fee.
[46] The starting point in interpreting cl 4 in its context is the natural and ordinary meaning of the words used by the parties. The Court seeks to ascertain what the parties meant by the words which they have used. In a case such as the present in which the yacht itself was not sold or otherwise transferred or conveyed, and in which a partial interest was acquired, an entitlement to be paid a fee arises in the event that a buyer “acquires a beneficial interest” in the ownership of the yacht. By their words the parties apparently intended that a fee was payable in the event a beneficial interest was acquired. A fee was not payable when a legal interest was acquired or when shares were transferred in order to reflect the acquisition of a beneficial interest in the ownership of the yacht, being an acquisition of a beneficial interest that pre-dated the commencement of the agreement.
[47] As a result, the transfer effected by the Bill of Sale of 27 June 2008 did not entitle Superyacht to a fee.
[48] Superyacht’s claim fails on the threshold issue of contractual interpretation of the event upon which an entitlement to be paid a fee arises. My conclusion that Superyacht is not entitled to the fee claimed by it in the first proceeding makes it unnecessary to address in the present context the issue of whether, upon its proper construction, Superyacht only became entitled to a payment if the relevant transaction was brought about as a result of its efforts. I should add for completeness, however, that if cl 4 was construed as though it contained a requirement that a fee by way of commission was only payable if Superyacht was the “effective cause” of the transaction, then Superyacht does not contend that it was the cause of, or brought about, any acquisition by Peninsula of its interest in Platinum or that it caused the transfer of shares on 27 June 2008.
Issue 5: Did entry into the second agreement extinguish any obligations or entitlements under the first agreement?
[49] In the light of my finding that Superyacht does not have an entitlement to a fee under the first agreement, it is unnecessary to resolve this issue. The issue is not addressed in Superyacht’s written submissions, save perhaps for the contention that by failing to pay commission, Mackeddie breached the agreement and brought that agreement to an end. This, however, does not address Mackeddie’s argument that entry into the second agreement extinguished any entitlement that Superyacht had under the first agreement.
[50] Nothing in the terms of the second agreement addressed the issue of whether rights and obligations under the first agreement subsisted. Mackeddie submits that this is a case in which, in effect, parties were added to a contract which otherwise remained unchanged. It argues that there was a novation, such that the new agreement was substituted for the previous agreement. The result is said to be that no right to commission under the first agreement survived.
[51] I do not accept this submission. The better view, it seems to me, is that the parties did not intend an existing entitlement to be paid a fee under the first agreement to be extinguished. For example, it is possible to imagine a circumstance in which an entitlement to be paid a fee under the first agreement arose in circumstances in which the vessel was introduced to the buyer at a boat show that occurred before the second agreement was made. In such a circumstance it is possible that, unbeknownst to Superyacht, a party acquired a beneficial interest in the ship after the first agreement was entered into but before the second agreement was entered into. Superyacht would have a prima facie entitlement to be paid a fee in respect of such an acquisition. The terms of the second agreement did not suggest that the parties intended that Superyacht should lose its entitlement upon entry into the second agreement.
[52] I conclude that entry into the second agreement did not extinguish any obligations or entitlements that existed under the first agreement. However, for the reasons that I have given, Superyacht did not have the entitlement which it claims under the first agreement.
Issue 6: What is the amount of commission, if payable?
[53] If Superyacht had established an entitlement to be paid a fee, or in the alternative, damages for breach of contract for failure to pay the fee, then judgment would have been in the amount of 10 per cent of the gross sale price. The “gross sale price” as defined in the agreement was $3,360,220 according to the Bill of Sale and the invoice. Ten per cent of this is $336,022.
[54] I would have awarded simple interest on this amount at the rate of 10% per annum from the date of demand, namely 7 December 2009.
Conclusion: The first proceeding
[55] Superyacht has not established its claim. There will be judgment for the defendant in the first proceeding. Subject to any submissions, the appropriate order is that the plaintiff pay the defendant’s costs of and incidental to the proceeding to be assessed on the standard basis.
The second proceeding
[56] Superyacht’s claim to a fee under the second agreement turns on the issue of contractual interpretation of cl 4 and cl 9(b) previewed at [11] – [14]. It is necessary to set out the full text of cl 4 of the second agreement, reproduce for ease of reference cl 9(b) and emphasise some parts of these clauses that feature in the parties’ contentions:
“4.Upon completion of the sale of the Yacht, or if it is otherwise transferred or conveyed during the terms of this Agreement, or in the event that a Buyer acquires a beneficial interest in the ownership of the Yacht, the Seller agrees to pay the Joint Central Agents a fee comprising:
- 10% of the gross sale price, whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker.
- GST thereon, where applicable.
Any Sub-Listed Broker involved in the sale shall receive its fee from the Joint Central Agents and the Joint Central Agents will indemnify the Seller from and against any claim for any fee form any Sub-Listed Broker. The Seller shall not pay more than the above commission regardless of who sells the Yacht, provided that the sale is effected under the terms of this Agreement.
...
9.(b)If this Agreement is terminated and the Yacht is transferred, sold or conveyed (or in the event that a Buyer acquires a beneficial interest in the Yacht in accordance with Clause 4) within twelve (12) calendar months thereafter to a Buyer who was introduced to the Yacht during the term of this Agreement, then the full fee as set out in Clause 4 shall be payable to the Joint Central Agents.” (emphasis added)
[57] Superyacht contends that cl 9(b) means what it plainly says. It is entitled to the full fee if the sale of Platinum occurs within 12 months of the termination of the second agreement, provided the buyer was “introduced to the Yacht during the term of” the second agreement. According to Superyacht, the clause is not ambiguous. Mackeddie and Peninsula (who I will refer to as “the defendants”) seek to read into cl 9(b) words that are not there, as if it read, “introduced to the Yacht by the Joint Central Agents or by a Sub-Listed Broker during the term of this Agreement”.
[58] Superyacht’s claim to the full fee set out in cl 4 is said to be reinforced by cl 4, which specifies, in the case of a sale during the term of the agreement, that the fee is payable to the Joint Central Agents “whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker.”
[59] The defendants respond that:
(a)Clauses 4 and 9(b) have a different field of operation, that cl 9(b) does not include the words “whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker”, and hence the words “introduced to the Yacht” mean “introduced to the Yacht by the Joint Central Agents or by a Sub-Listed Broker”;
(b)The context in which these clauses appear, and certain “admissible background”, indicate that the purpose of the agreement was to have Superyacht “manage the sale” of the yacht, such that cl 4 requires Superyacht to be the “effective cause” of the sale in order to be paid a fee. In that context, the purpose of cl 9(b) is to ensure that Superyacht is “not deprived of a maturing sale, which Superyacht had initiated by an introduction by Superyacht or one of its agents prior to termination”;
(c)Superyacht’s interpretation leads to consequences which appear to be capricious, unreasonable, inconvenient or unjust. In particular, it allows Superyacht to be paid a fee in respect of an introduction that it did not make, and may expose the seller to an obligation to pay a second fee or commission where it has engaged another broker.
The contractual text and its context
[60] The plain and unambiguous words of cl 9(b) support Superyacht’s interpretation. The interpretation urged by the defendants requires words to be read into cl 9(b).
[61] The context in which cl 9(b) falls to be interpreted extends beyond cl 4. It includes the name of the agreement, “Yacht Sales Central Agency Agreement”, and cl 1 which appoints the Joint Central Agents to “manage the sale” of Platinum “on a Central Agency basis”. The selling interests (“the Seller”) agree in cl 1 to sell the yacht “to a proposed purchaser of the Joint Central Agents or to a customer of the Seller or to the client of any permitted Sub-Listed Broker” who is ready, willing and able to purchase it at the nominated price, or at any other price that the Seller may accept. Superyacht, the other Joint Central Agents and their permitted Sub-Listed Brokers are permitted to show the yacht to potential purchasers. Clause 7 provides:
“7.In the event of any direct approach to the Seller by any third party wishing to purchase the Yacht, including such approach from a permitted Sub-Listed Broker who may have a client wishing to purchase the Yacht then the same shall forthwith be notified/copied by the Seller to the Joint Central Agents.”
This provision reinforces the role of the Joint Central Agents in managing the sale process. The Seller may negotiate a sale directly with a third party but the Joint Central Agents must be notified of the third party’s approach. If the Seller prefers to negotiate a sale directly with a third party, cl 7 enables the Joint Central Agents to ascertain the date upon which such a party was introduced to the yacht. This may become important in determining an entitlement pursuant to cl 9(b).
[62] The agreement is not an exclusive agency or a sole agency. Instead, it gives the Joint Central Agents a central role in managing the sale process and, by its provisions relating to the payment of a fee to the Joint Central Agents, might be said to discourage the Seller from appointing additional agents during the term of the agreement and to encourage the Seller to direct other agents to the Joint Central Agents in order to negotiate a share of the fee.
[63] The central, but not exclusive, agency of the Joint Central Agents is manifested by the terms of cl 4 which entitle them to the fee on the happening of certain events “whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker”. The intent of cl 4 is that the Seller shall not pay more than the fee “regardless of who sells the Yacht” where the sale is effected under the terms of the agreement.
[64] The defendants argue that cl 4 should be read so that the words which I have highlighted in the first dot point of cl 4 did not commence “whether or not”, and should be read as if they said, “whether the Buyer has been introduced to the Yacht by the Central Joint Agents or by a Sub-Listed Broker.” I do not accept this submission. Such a reading is not compelled by the later reference to the Seller not paying more than the stated commission “regardless of who sells the Yacht”. Clause 4 means what it says. If one of the events stated in the opening part of the clause occurs then a fee is payable to the Joint Central Agents whether or not the Buyer has been introduced by them or by a Sub-Listed Broker. In other words, the fee is payable if the Buyer has been introduced by an outside agent who was not a Sub-Listed Broker or if the Buyer has been introduced directly by the Seller.
[65] The main issue of interpretation in the second proceeding is not whether cl 4 requires Superyacht to be the “effective cause” in order to be paid a fee. The issue of “effective cause” was raised in the first proceeding and it was unnecessary to decide it. Still, the issue arises for consideration because the second proceeding relates to the proper construction of cl 4 and cl 9(b). The defendants do not submit that to be paid a fee under cl 9(b) Superyacht must prove that either the Joint Central Agents or a Sub-Listed Broker were an effective cause of the sale. However, the defendants submit that cl 4 has such a requirement and cl 9(b) falls to be interpreted in that context.
Clause 4 and “effective cause”
[66] In a case such as this the initial question is what, on the proper construction of the contract, is the event upon the happening of which the agent acquires a right to be paid a fee.[4] In their arguments in relation to cl 4, the defendants submit that no fee is payable unless, among other things, the Joint Central Agents (or perhaps a Sub- Listed Broker) were an effective cause of the sale, transfer or conveyance. The defendants cite authorities in the context of real estate agents in which commission is payable on “introducing” or “finding” a purchaser. Such agreements are often 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.[5] In such cases it is also an implied term of an agreement between a real estate agent and a vendor that, if the agent is the effective cause of the sale, the agent is entitled to commission even if the final contract is significantly different from that originally contemplated.[6] It has been said that the requirement of “effective cause” is one of the various concepts, understood as terms implied by law, which are found in the body of common law learning applicable to real estate agents.[7] Such terms, although treated as implied by law, may be excluded by express provision made by the parties or as a result of inconsistency with express terms of the contract in question.[8]
[67] The defendants acknowledge that the authorities supporting an implied term about the agent being the “effective cause” relate to real estate agents. However, they point to English authorities which support an “effective cause” requirement in other contexts. They cite Berezovsky v Edmiston & Co[9] which was a case about whether the defendant yacht brokers were the “effective cause” in the sale of a superyacht. However, the need for the claimants in that case to establish that they were the effective cause of the sale was conceded.[10] Nevertheless, Field J stated[11] that entitlement to a commission dependent on the eventuation of a transaction has been subject to the “effective cause” test since at least the decision of the Court of Appeal in Millar, Son & Co v Radford.[12]
[68] The defendants also rely upon Foxtons Ltd v Pelkey Bicknell & Anor[13] in which a sole agency agreement imposed a liability to pay remuneration if unconditional contracts were exchanged “where the purchaser introduced buyers during the period of our sole agency ...”. Lord Neuberger of Abbotsbury (with whom the other members of the Court of Appeal agreed) identified the first issue as one of contractual interpretation as to the meaning of the words “a purchaser introduced by us”. His Lordship preferred to approach this issue as one of contractual interpretation rather than decide whether it would be appropriate to imply a provision that Foxtons had to be the effective cause of the purchase. However, cases about the implication of an “effective cause” term were considered. The conclusion was reached that, as a matter of contractual interpretation, “a purchaser introduced by us” means “a person who becomes a purchaser as a result of our introduction”.[14] No question of implying an effective cause requirement arose.
[69] The resolution of this case is not greatly assisted by cases about the interpretation of quite different clauses in the context of real estate sales. Unlike the clause in Foxtons Ltd v Pelky Bicknell & Anor, cl 4 of the present agreement contains no requirement for the Buyer to be introduced by the Joint Central Agents or their Sub-Listed Brokers. On the contrary, the fee under cl 4 is payable whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker. The defendants do not contend or plead that an effective cause requirement is an implied term. Their contentions in relation to the proper interpretation of cl 4 depend upon the meaning of its words. Cases involving the interpretation of different contracts in the context of real estate transactions serve to illustrate that, either by a process of construction or by way of implication, an “effective cause” requirement may exist because the terms of the contract and its context support the conclusion that the parties were unlikely to have intended that the agent would earn a commission simply by finding or locating a person who, independently of any further action by the agent, later agreed to effect the transaction in question with the principal.[15] Such an interpretation, or the implication of a term to like effect, will not be adopted where the express provisions of the contract reveal an intention that the agent be remunerated whether or not he or she is an effective cause of the transaction in question.[16]
[70] The terms of cl 4 do not support an interpretation which requires the Joint Central Agents to be the effective cause of the sale. The express provision that the Buyer need not have been introduced by the Joint Central Agents or by a Sub-Listed Broker does not necessarily exclude the requirement of an effective cause. Such a requirement might exist in a case in which the Buyer was introduced by someone else. However, the absence of a requirement to have introduced the Buyer and the absence of any other words that carry with them a requirement that the agent be the effective cause leaves such a requirement to rest on the clause as a whole, viewed in the context of an agreement about managing a sale.
[71] The concluding sentence of cl 4 tends to suggest that the entitlement to a fee arises regardless of who sells the yacht, provided the sale is completed during the term of the agreement. Such a result might be surprising in the case of an agent which is not a central agent, and one would not readily conclude in that different context that the parties intended that the agent should be entitled to a fee in respect of a sale which it had done little, if anything, to effect.[17] However, such a conclusion is more readily supported in the context of an agreement which appoints a central agent to manage the sale, whether the sale be the result of a direct approach to the Seller or an introduction by an appointed agent or an outside agent, and where the efforts of one or more of the agents in combination with the Seller may effect the sale. Clause 4 provides that if a sale is effected then the fee is to be paid to the Joint Central Agents, and contemplates that the Seller shall pay no more than that fee “regardless of who sells the Yacht”.
[72] The terms of cl 4, and the role of the Joint Central Agents in managing the sale, support the conclusion that the entitlement of the Joint Central Agents to the fee does not depend upon proof that they were the effective cause of the sale. The fee will be payable to the Joint Central Agents, and those Joint Central Agents may have an obligation to share it with others who were instrumental in effecting the sale. If the sale is to be effected through the efforts of an outside agent, then the interpretation favoured by Superyacht will encourage the Seller to direct such an outside agent to the Joint Central Agents in order to work out an appropriate share of the fee that is payable pursuant to cl 4. In such a circumstance, the Seller thereby avoids the risk of being required to pay more than the fee provided for in cl 4. The Seller also avoids being concerned about who was the effective cause of the sale and being vexed by disputes about the effective cause or causes of a sale. The case law and texts about whether one or more agents is an, or the, effective cause of sale illustrate the potential for disputes of that kind. A Seller might not wish to become involved in such disputes and the potential for these disputes provides a reasonable explanation for why the parties did not make payment of the fee under cl 4 dependent upon proof that the Central Agents were the effective cause. Instead, the fee is payable under cl 4 upon proof of facts which are reasonably capable of being ascertained, namely whether there was a completed sale, transfer or conveyance of the yacht, or an acquisition of a beneficial interest in its ownership, during the term of the agreement. In such an event, the fee is payable even when the sale was effected by the Seller directly or by an outside agent. This interpretation is supported by the nature of the agreement, being one to manage the sale of the yacht “on a Central Agency basis”, leaving the negotiation of a share of the fee and disputes over who was the effective cause of the sale to the Joint Central Agents to resolve.
[73] I conclude that cl 4 does not carry with it a requirement that the Joint Central Agents be the effective cause of the sale.
Relationship between cl 4 and cl 9(b)
[74] The meaning of cl 9(b) should be ascertained by considering its text in the context of the document, and so as to harmonise, as far as possible, its operation with the operation of other clauses, particularly cl 4.
[75] Clause 9(b) deals with the circumstance in which the yacht is sold within 12 months of the termination of the agreement and the Buyer was introduced to the yacht during the term of the agreement. Without such a clause the Joint Central Agents would not have an entitlement to be paid a fee pursuant to cl 4 if a sale occurs after termination of the agreement. An obligation to pay the fee could be avoided by the Seller ensuring that the Buyer only acquired a beneficial interest in the ownership of the yacht or completed its purchase after the Central Agency Agreement had been terminated.
[76] The entitlement to be paid pursuant to cl 4 arises whether or not the Buyer has been introduced by the Joint Central Agents. If payment of the fee under cl 4 does not depend upon the Buyer being introduced by the Joint Central Agents or by a Sub-Listed Broker, the question arises as to why such a requirement should be imported into cl 9(b).
[77] Clause 9(b) does not state after the word “Yacht” where it appears the second time in that clause “whether or not the Buyer has been introduced by the Joint Central Agents or by a Sub-Listed Broker”. By the same token, cl 9(b) does not state in the same place “by the Joint Central Agents or by a Sub-Listed Broker”. If the parties wished to confine the entitlement to be paid a fee under cl 9(b) to such an introduction, then the clause might easily have said so. The absence of such words in the context of a clause which, in effect, preserves or extends the entitlement to be paid the fee specified in cl 4 in circumstances where the yacht is sold within 12 months after the agreement’s termination supports the conclusion that the clause means what is says. In other words, an entitlement to be paid the fee is not confined to a case where the Buyer was introduced to the yacht by the Joint Central Agents or by a Sub-Listed Broker.
[78] The defendants submit that cl 9(b) is in a “different realm” to cl 4, with the result that additional words should be read into it. They contend that the words “introduced to the Yacht” mean “introduced to the Yacht by the Joint Central Agents or one of their Sub-Listed Brokers”. Such an interpretation is said to advance the purpose of cl 9(b), which was to not deprive Superyacht “of a maturing sale, which Superyacht had initiated, by an introduction by Superyacht or one of its agents prior to termination”. This resort to the apparent purpose of cl 9(b) is linked to the submission that Superyacht’s interpretation of cl 9(b) leads to consequences which appear to be capricious, unreasonable, inconvenient or unjust.
[79] I am not persuaded that it is necessary to read into cl 9(b) the words for which the defendants contend in order to achieve its apparent purpose, or that the interpretation for which Superyacht contends is capricious, unreasonable, inconvenient or unjust.
[80] The words of cl 9(b) are not ambiguous. I am not persuaded that the language of cl 9(b) is ambiguous or is susceptible of more than one meaning so as to admit evidence of surrounding circumstances that were known to both parties as an aid to construction.[18] However, if I had been persuaded that this is a case which permitted what the defendants describe as “admissible background” as an aid to construction, the “background” pointed to by the defendants does not assist. The communications pointed to by the defendants serve to confirm that the purpose of the proposed agreement was the sale of the vessel. Reference also was made to the prospect of Superyacht having to split the 10% fee 6% to a European broker and 4% to it if the European broker “got a buyer”. These communications do not address, let alone illuminate, what would happen if and when the Central Agency Agreement was terminated and a sale eventuated. The parties addressed that matter in cl 9(b) and the prior communications between them do not suggest that cl 9(b) was intended to operate, contrary to its terms, only where a Buyer was introduced to the yacht by the Joint Central Agents or one of their Sub-Listed Brokers.
[81] The defendants submit that it is uncommercial to suppose that the parties intended that Superyacht should be paid a fee under cl 9(b) in a case in which it had done nothing in the pre-termination period to bring about the sale. This is a good point, and perhaps a better one than the argument that it is also uncommercial to leave a hardworking Central Agent unrewarded for its efforts during the term of the agreement in managing or bringing about a sale which occurs shortly after the agreement is terminated. Such a result would also be regarded as uncommercial in a case in which, although the yacht was not introduced to the Buyer by the Joint Central Agents or their Sub-Listed Brokers, Superyacht’s efforts were instrumental in achieving a sale which occurred shortly after the agreement was terminated.
[82] According to the defendants’ interpretation, in a case in which the Buyer was introduced to the yacht by an outside agent during the term of the second agreement, following upon which the Joint Central Agents did a great deal to effect a sale that occurred after the agreement was terminated, the hardworking Joint Central Agents would have no entitlement to a fee under either cl 4 or cl 9(b).
[83] Either interpretation of cl 9(b) has the potential to produce a seemingly unjust, unreasonable or uncommercial result. On Superyacht’s interpretation, it might be paid in circumstances in which it did little or nothing to achieve a sale. On the defendants’ interpretation, Superyacht might not be paid despite tremendous effort in progressing a sale to a Buyer who was merely introduced to the yacht by an outside buyer or by the owners of the vessel.
[84] An interpretation of cl 9(b) which permits Superyacht to obtain the benefit of a “maturing sale”, when the Buyer was introduced to the yacht by an outside agent, is to be preferred. I do not regard such an interpretation as capricious, unreasonable, inconvenient or unjust. The position is different to one in which an agent claims a commission on a sale which effectively originated after its agency had ended.[19] Clause 9(b) is concerned with a sale to a Buyer who was introduced to the yacht during the term of the Central Agency Agreement. It permits payment of a fee in such a case, including circumstances in which the Central Agent played a role in progressing the sale, but where no entitlement to be paid pursuant to cl 4 exists because the sale was not effected or completed during the term of the agreement.
[85] On the interpretation of cl 9(b) which I prefer, an obligation to pay a fee arises in circumstances where:
(a)the Buyer is introduced to the yacht during the term of the agreement; and
(b)the yacht is sold within 12 months of the agreement being terminated.
The fact of the introduction is capable of being ascertained. If the Seller decides to engage another broker to sell the yacht, then it can negotiate the terms upon which that broker is to be paid. For example, in the present case, agents who were appointed pursuant to a similar Central Agency Agreement dated 9 December 2009 agreed with the defendants that “no commission will be payable where the sale is made in circumstances that would oblige the Seller to remit a commission in accordance with the Yacht Sales Central Agency Agreement entered into between Superyacht Technologies Pty Ltd, Oceanstyle Yachting Ltd and Mackeddie Marine Pty Ltd dated 4 August 2008.” The negotiation of such a clause with a new broker might induce the new broker to negotiate arrangements with the previous Central Agents to share the fee that would be payable pursuant to cl 9(b) in the event of a sale occurring within 12 months of the previous agreement being terminated.
[86] The scope for the defendants to negotiate arrangements whereby they are not exposed to a second claim for commission addresses a “commercial inconvenience” argument raised by the defendants, namely that Superyacht’s interpretation would expose it to a second claim for commission where it has engaged another broker. The defendants will only be exposed to a second claim for commission if they choose not to include a clause of the kind which they did in any new agreement and sell the yacht within the 12 month period. The interpretation of cl 9(b) advanced by Superyacht accords with the nature of the Central Agency Agreement, and the role of Superyacht as a Central Agent in managing a sale, whether or not the Buyer has been introduced by the Joint Central Agents, one of their Sub-Listed Brokers or someone else.
[87] If a sale occurs during the term of the agreement then the fee is payable pursuant to cl 4 regardless of who made the introduction and regardless of who sells the yacht. The Central Agent is left to share the fee with any agent who may have made the introduction or played a part in bringing about the sale. If the sale is not effected within the term of the agreement, but occurs within 12 months of its termination, then an entitlement to be paid the fee also exists, provided the Buyer was introduced to the yacht during the term of the agreement. Claims by others to share in the fee are negotiated and resolved by the Central Agents. The selling interests may protect themselves by requiring outside agents to negotiate with the Central Agents about a share in the fee, including in the event a fee is payable under cl 9(b). The Seller is thereby able to pay one fee in the event of a sale during the period specified in cl 9(b) to a Buyer who was introduced to the yacht during the term of the agreement.
[88] The Central Agents are able to pay their own expenses and pay others who may have a claim upon them for having either introduced the Buyer to the yacht or brought about the sale.
Conclusion – the construction issue
[89] The interpretation of cl 9(b) urged by Superyacht is consistent with an agreement which appoints Central Agents to manage the sale “on a Central Agency basis”. The Seller is exposed to payment of one fee to the Central Agents. The Central Agents address the entitlements of other agents who claim to have introduced the Buyer or played a part in bringing about the sale. The Central Agent negotiates these matters and resolves disputes in relation to them. The Seller is not vexed by such claims. The risk of having to pay more than one commission is thereby reduced.
[90] The construction contended for by Superyacht best accords with the text of cl 9(b) and its context. It means that Superyacht is not deprived of the benefit of a maturing sale which was initiated during the term of the agreement which appointed it as a Central Agent. Such an interpretation is supported by the clear words of
cl 9(b). The competing interpretation requires words to be read into cl 9(b).
[91] Either interpretation has the potential to yield apparently unjust results in different circumstances. The interpretation which I prefer is no more capricious, unreasonable, unjust or uncommercial than the one for which the defendants contend. The interpretation for which the defendants contend has the potential to deprive a hardworking Central Agent of the benefit of a sale which matures shortly after the agreement is terminated, where the agent’s efforts have been instrumental in achieving the sale, but where the introduction was made by an outside agent. Even in different circumstances, in which the Central Agent has done little or nothing to bring about the sale, the interpretation which I prefer leaves open claims by outside agents and Sub-Listed Brokers to share in the fee. Such an outcome is consistent with an agreement which appoints a Central Agent.
Quantum
[92] Superyacht has established its claim. It, and the other Joint Central Agents, the third and fourth defendants, are entitled to payment of a fee in the amount of 10 per cent of the “gross sale price” of $10,400,000 which, for reasons given in the parties’ submissions, is the sale price before the addition of any applicable GST. Accordingly, there will be judgment for the plaintiff, the third defendant and the fourth defendant against the first defendant and second defendant in the sum of $1,140,000.
[93] I will award simple interest pursuant to statute on that sum at the rate of 10 per cent per annum. Interest might be calculated from the date the sale was made (16 August 2010) or was completed (24 August 2010). This was the date the fee became payable, subject to cl 13(b), which does not apply. It seems, however, that no demand for payment by way of invoice or otherwise was made until the second proceeding was started on 3 November 2010. I exercise my discretion by awarding interest for the period from 3 November 2010 to the date of judgment. I calculate this to be $240,805.
[94] I will hear the parties in relation to costs.
Footnotes
[1] Far North Queensland Ports Corporation v Owners of the Ship “Captain Senrab” [2012] QSC 86 at pp 6-9. See also The Ship Gem of Safaga v Euroceanica (UK) Ltd (2010) 182 FCR 27 at 31-33 [13] – [18].
[2] Ibid.
[3] Counsel for Superyacht cited the recent summary contained in Mackenzie v Kentcade Properties Pty Ltd [2012] QSC 299 at [13] – [15].
[4] LJ Hooker Ltd v WJ Adams Estates Pty Ltd (1977) 138 CLR 52 at 66.
[5] Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 at 360 [27].
[6] Ibid at 360 [28].
[7] Ibid at 374-375 [81].
[8] Ibid.
[9] [2010] EWHC 1883 (Comm).
[10] Ibid at [8].
[11] Ibid at [41].
[12] (1903) 19 TLR 575.
[13] [2008] EWCA Civ 419.
[14] Ibid at [22] – [23].
[15] GE Dal Pont, Law of Agency 2nd ed at [16.3].
[16] Ibid at [16.7] citing Your Home Realty (NT) Pty Ltd v Cooke [1997] ANZ Conv R 267; David Leahey (Aust) Pty Ltd v McPherson’s Ltd [1991] 2 VR 367 at 376 .
[17] Doyle v Mount Kidston Mining and Exploration Pty Ltd [1984] 2 Qd R 386 at 392.
[18] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352; Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604.
[19] Foxtons Ltd v Pelky Bicknell & Anor (supra) at [24].