Yin Bo v Costi Cohen Pty Ltd

2025/00390216

TRADE PRACTICES – on 13 November 2023, the respondent and the appellant executed an exclusive agency agreement (the Agency Agreement) under which the respondent was to act as a commercial buyer’s agent for the appellant – Boying Development Pty Ltd was incorporated in May 2024, with the appellant’s wife becoming sole shareholder shortly thereafter – the respondent sought recovery of commission it claimed was due by the appellant by reason of the purchase on 19 July 2024 by Boying Development Pty Ltd of a commercial property at 66-72 Victoria Road, Drummoyne (the Drummoyne Property) – first, the respondent relied on the Agency Agreement, and secondly and alternatively, it sought an amount on quantum meruit for work it did in sourcing properties for the appellant which it said lead to the purchase of the Drummoyne Property, thirdly, the respondent alleged that if the Agency Agreement is not binding, then the parties acted on a mutual assumption such that, by reason of a conventional estoppel, it is entitled to be paid its commission – the respondent also claimed damages for breach of contract – the appellant relied on several defences and claims brought by way of cross claim including that the Agency Agreement was void for uncertainty, that the respondent did not perform its obligations under the Agency Agreement, that the Agency Agreement contained unfair terms within the meaning of s 24 of the Australian Consumer Law (ACL), that the respondent engaged in misleading and deceptive conduct in contravention of s 18 of the ACL, that the respondent engaged in unconscionable conduct in contravention of s 21 of the ACL, and that pursuant to the Contracts Review Act 1980 (NSW), the Court ought to refuse to enforce the Agency Agreement – the primary judge found in favour of the respondent on the quantum merit claim in the amount of $166,100 plus pre-judgment interest – whether the primary judge erred in finding that the respondent was entitled to restitutionary relief – whether the primary judge erred in finding that the respondent’s quantum meruit claim “fit” with the parties’ contractual arrangements despite the existence of a valid and operative part of the contract – whether the primary judge misconstrued s 23 of the ACL – whether the primary judge erred in finding that the respondent discharged its burden of proving that $166,100 represented fair and reasonable remuneration – whether the primary judge erred in concluding that the appellant should pay the costs of the primary proceedings.

Costi Cohen Pty Ltd v Bo (No.2) [2025] NSWDC 385