Matthew Robert Hudson v Colliers International (NSW) Pty Ltd

2025/00347991

CONTRACTS – the first respondent, Colliers International (NSW) Pty Ltd (Colliers) is a corporation engaged in the business of commercial real estate, brokerage and agency services – the second respondent, Mr Michael Bate, was a member of the management team of Colliers – Mr Matthew Robert Hudson was an Associate Director in Retail Leasing/Retail – in June 2016 Mr Hudson hosted a 30th birthday party where a video recording was made during the event – the Australian Financial Review published excerpts from the video together with some incisive remarks concerning the culture of Colliers – as a result, Mr Hudson agreed to leave Colliers – the terms of the cessation of Mr Hudson’s employment was recorded in a Deed of Release (the Deed) – it is the interpretation of the Deed that gives rise to the present proceedings – the relief sought by Mr Hudson was primarily for breach of contract by Colliers and, in the alternative, misleading and deceptive conduct by Colliers and Mr Bate – the primary judge dismissed the claims against Colliers and Mr Bates – whether the primary judge erred in the construction and application of the Deed of Release, by failing to give effect to its text, structure, and commercial purpose, and by treating commission entitlements recorded in Schedule 3A as provisional and subject to later adjustment in a manner inconsistent with the negotiated risk allocation and the parties’ bargain – whether the primary judge erred in construing Schedule 3B of the Deed of Release as creating no enforceable entitlement, rather than recognising it as preserving conditional rights subject to the Incentive Policy which would mature upon satisfaction of its requirements – whether the primary judge erred in her Honour’s treatment of Schedule 3B of the Deed of Release by failing to consider or determine the factual question of whether Colliers in fact received commission payments in respect of the matters listed there – whether the primary judge failed to consider Mr Hudson’s pleaded and argued case that damages for the lost Young Street opportunity were recoverable under the first and second limbs of Hadley v Baxendale (1854) 9 Exch 341 – whether the primary judge erred in holding that the alleged representations were not made “in trade or commerce” within the meaning of s 18 of the Australian Consumer Law in sch 2 to the Competition and Consumer Act 2010 (Cth).– – whether the primary judge erred in making collateral adverse credit findings and in allowing those findings to dictate the outcome of the statutory misrepresentation claim – whether the primary judge’s adverse credibility findings are unsafe having regard to the 17-month delay between the conclusion of the hearing and the delivery of reasons, the commercial nature of the dispute, and the absence of documentary support for the findings – whether the primary judge erred in treating cl 23 of the employment contract and s 8(a) of the of Deed of Release as precluding statutory liability under s 18 of the Australian Consumer Law, rather than as a clause capable only of evidentiary effect in assessing causation or reliance, thereby misdirecting herself in law and failing to determine those elements on the evidence – whether the primary judge erred in finding that the cause of action under s 236 of the Australian Consumer Law (ACL) accrued in September 2016 rather than in April 2021 – whether the primary judge failed to determine Mr Hudson’s argument that s 65 of the Civil Procedure Act 2005 (NSW) was applied by s 79 of the Judiciary Act 1903 (Cth) in the exercise of federal jurisdiction, and erred in consequence in holding the claim under s 236 of the Australian Consumer Law was time-barred – whether the primary judge erred in dismissing the accessorial liability claim against Mr Bate.