Hudson v Colliers International (NSW) Pty Ltd

1. [1]

   BELL CJ: I agree with Kirk JA.

2. [2]

   WARD P: I agree with Kirk JA.

3. [3]

   KIRK JA: The appellant, Matthew Hudson, commenced employment with the first respondent, Colliers International (NSW) Pty Ltd, in October 2013 as a real estate agent. In February 2016 he was promoted to Associate Director, Retail Leasing. He entered a new employment contract for that position. His remuneration comprised both salary and commission components.

4. [4]

   In June 2015 Mr Hudson celebrated his thirtieth birthday with a dress-up party on the theme “Huddo’s Flirty Thirty”. In 2016 Colliers received some media attention involving sexual harassment allegations made against another employee. In that context, in June 2016 media interest was sparked in a video posted to social media about Mr Hudson’s party. Mr Hudson and Colliers agreed to part ways. The second respondent, Michael Bate, was Mr Hudson’s supervisor and he led the negotiations on behalf of Colliers. The agreement was formalised in a “Deed of Release” between Mr Hudson and Colliers dated 22 June 2016 (Deed) which, amongst other things, obliged Colliers to pay Mr Hudson certain amounts including with respect to commission.

5. [5]

   A dispute subsequently arose concerning commission payments relating to the following deals in relation to which Mr Hudson had played a role as agent:

   1. (1)

      a lease for a tenancy at the Overseas Passenger Terminal in Circular Quay where Newcastle Port Corporation Pty Ltd was the landlord (Circular Quay Lease);

   2. (2)

      a lease between Scentre Limited and The Mantle Group in relation to a tenancy at the Westfield Sydney CBD rooftop (Westfield Lease); and

   3. (3)

      a claimed lease to “Sumo Salad” at a shop in St Collins Lane, Melbourne.

6. [6]

   Mr Hudson also brought a claim for misleading and deceptive conduct against Colliers and Mr Bate. His damages claims included consequential loss premised on Mr Hudson’s loss of opportunity to invest the payments he said he was entitled to receive into the purchase of a house in Paddington in Sydney.

7. [7]

   The matter was heard by the primary judge, Olsson DCJ, in the District Court in February 2024. Nearly 18 months later her Honour handed down judgment dismissing all of Mr Hudson’s claims.

8. [8]

   Mr Hudson’s original notice of appeal in this Court raised 11 grounds. However, he ultimately only pressed three of those. He did not pursue a challenge to the primary judge’s rejection of the misleading and deceptive conduct claim. Mr Bate was in the end not a necessary party to the appeal. The grounds were:

9. [9]

   In substance, as the arguments evolved, Ground 1 related to the Circular Quay Lease. Ground 2 related to the Westfield and St Collins Lane deals.

10. [10]

    Grounds 1 and 3 should be rejected. Ground 2 is made out in relation to the Westfield Lease (only). It is appropriate to refer to relevant provisions of three contractual documents, before addressing the grounds in turn.

The contractual documents

1. [11]

   The employment contract Mr Hudson entered in February 2016, when he was promoted, included the following provisions relating to payment of commission:

2. [12]

   The Remuneration Schedule attached to the contract listed two “thresholds”. Where “Revenue Attributed to Operator” was in the range $450,000 to $600,000 then the commission rate payable was 40%, and where above $600,000 it was 50%. By implication, those thresholds reset each year.

3. [13]

   The “Commissions, Bonuses & Profit Share Policy” (the Policy) referred to in the employment contract relevantly provided as follows:

4. [14]

   Recital D to the Deed provided that the parties had agreed that Mr Hudson would cease employment on 21 June 2016. Recital E stated:

5. [15]

   The Deed included an entire agreement provision (cl 9(f)). The key term of the Deed for the purposes of these proceedings is cl 1(a), which obliged Colliers’ to pay Mr Hudson certain amounts. It is set out below (at [30]). The Deed made no provision as to when the various amounts identified in cl 1(a) were to be paid. Consistently with general principles, the amounts identified would be payable within a reasonable time: see eg Reid v Moreland Timber Co Pty Ltd (1946) 73 CLR 1 at 13; [1946] HCA 48.

6. [16]

   Clause 1(a)(iii) referred to Sch 3 of the Deed, which provided as follows:

7. [17]

   The reference to an “attached” document at Sch 3A was to a two-page ledger which set out the leases/invoices relevant to calculation of the revenue allocated to Mr Hudson for commission purposes. It recorded the following (quoting just relevant rows and columns):

8. [18]

   The latter four entries just quoted, being the last entries in the table, were also the four entries in Sch 3B. There was no invoice number entered for those four entries because Sch 3B was addressed to “potential commission entitlement” for invoices not yet issued to the relevant Colliers clients.

9. [19]

   The ledger also specified the “Total Allocated Revenue” as $1,073,296.91, being the sum of all the allocated revenue in the document, including the four entries relating to the potential commission entitlements. It also indicated that applying Mr Hudson’s “Commissions Structure” to that “Total Allocated Revenue” a total of $296,648 was payable as commission.

Ground 1: the Circular Quay deal and construction of the Deed

1. [20]

   As explained below, in the end Ground 1 related only to the commission payable on the Circular Quay deal. On 23 September 2014 Newcastle Port and Colliers agreed an “Exclusive Leasing Agency Agreement” for Colliers to act as leasing agent for a tenancy at the Overseas Passenger Terminal. Mr Hudson was tasked with marketing the tenancy. He introduced a potential tenant to Newcastle Port and a lease ultimately was agreed between those parties.

2. [21]

   On 18 May 2016, while Mr Hudson was still employed by Colliers, an invoice was issued by Colliers to Newcastle Port for $802,999.01 (incl GST). It was payable by 1 June 2016. Mr Hudson was to be allocated $693,499.14 in revenue for his role in the transaction, as was later reflected in the relevant entry in Sch 3A of the Deed. However, the client raised concerns about the amount claimed by Colliers. On 27 May 2016 the Port Authority of NSW – a statutory corporation which seemingly was successor to Newcastle Port – engaged a third party to undertake a fact finding investigation into Colliers’ engagement as leasing agent, including the agreed fee structure.

3. [22]

   By 22 June 2016, when the Deed was made, Colliers’ invoice was outstanding and overdue. Colliers was aware of the investigation. Clause 3(b) required Mr Hudson to provide Colliers with reasonable assistance in relation to it.

4. [23]

   On or around 27 June 2016 the CEO of Colliers met with a representative of the Port Authority to discuss the amount claimed, and it was agreed to reduce the fee to $495,000 (incl GST). The original invoice was then cancelled by Colliers and a new invoice for the agreed amount was issued, pursuant to which $450,000 was to go towards Mr Hudson’s allocated revenue. In July 2016 the invoice for $495,000 was paid in full by the Port Authority.

5. [24]

   A dispute then arose as to whether Colliers was required to calculate the commission payable to Mr Hudson on the basis of the original amount invoiced as referred to in Sch 3A (as Mr Hudson asserted) or on the lower amount subsequently invoiced and actually paid (as Colliers claimed).

6. [25]

   There was no disagreement as to the legal principles relevant to the construction of the Deed as a contractual commercial agreement. Key principles were summarised in, for example, The J & P Marlow (No 2) Pty Ltd v Hayes (2023) 112 NSWLR 29; [2023] NSWCA 117 at [89]-[90]. The relevant provisions must be construed as a matter of text, context and purpose.

7. [26]

   The dispute hinges on whether the Deed conclusively determined the amount payable to Mr Hudson with respect to the Circular Quay invoice, or whether instead aspects of the Policy – especially cl 2.1 – continued to apply. Clause 2.1 provided that commission “becomes payable when: … The invoices have been paid in full by the client”. The primary judge adopted the latter view (see at [73]).

8. [27]

   The initial thrust of Mr Hudson’s submissions on Ground 1 had been that cl 1(a)(iii) of the Deed constituted an agreement for Colliers to pay Mr Hudson an amount of commission consistently with the sum of the allocated revenue that was recorded in Sch 3A, including the four future invoices also listed in Sch 3B. Put simply, it was an agreement to pay a $296,648 commission calculated on $1,073,296.91 in total allocated revenue, and the quantum of that commission was fixed by the Deed and not subject to change.

9. [28]

   If that had been the intention, an obvious question is why it was not said in terms that Colliers agreed to pay Mr Hudson $296,648, encompassing all of his commission entitlements. Doing so would have required a handful of words, as opposed to the three sentences employed in the clause.

10. [29]

    In any event, in the course of questioning that argument was narrowed. Counsel for Mr Hudson no longer pressed an argument that the four items identified in Sch 3B, also listed as the last four entries in Sch 3A, were excluded from the operation of the Policy. That concession was unsurprising, and correct, in light of the last sentence of cl 1(a)(iii). He thus accepted that payment of commission on the four items was subject to cl 2.1.2 of the Policy. Those invoices had not been paid when the Deed was entered; indeed, the invoices had not yet issued. Ground 1 was therefore only determinative in relation to the dispute as to commission payable on the Circular Quay deal (the other two disputed deals being listed in Sch 3B). The argument pressed was that as to the other amounts listed as invoiced in Sch 3A, including the Circular Quay deal, Colliers’ liability was imposed directly by cl 1(a)(iii); that liability was not affected by the terms of the Policy; and, in particular, cl 2.1.2 of the Policy did not apply.

11. [30]

    Clause 1(a) of the Deed, along with related cl 3(b), provided as follows:

12. [31]

    Mr Hudson argued that construction of cl 1(a)(iii) must commence by breaking the clause into its three sentences. Mr Hudson submitted that the first sentence was a promise by Colliers to pay him amounts that he would have been entitled to under the Policy. It was submitted that because the clause used the conditional “would” in connection with the Policy it suggested that the intention of the clause was to refer to a hypothetical – that is, the purpose of the clause was to make a current promise to pay amounts that hypothetically would have been owing under the Policy.

13. [32]

    Mr Hudson argued that the significance of the second sentence was to evince an agreement that all of the commissions in Sch 3A were commissions that “the Employee would be entitled to receive pursuant to the Policy”. It was in substance a deeming clause, the effect of which was to confirm that all of the commissions in Sch 3A were to be treated by Colliers as applying towards the calculation of Mr Hudson’s bonus entitlement. Mr Hudson said that the effect of the promise of “no Late Payment Reduction …” was to confirm that notwithstanding any terms of the Policy, the two identified invoices could not be reduced on account of any late payment.

14. [33]

    He also argued that the Policy had numerous preconditions which would have been inapposite to his position as a resigning employee. For example, cl 1.4 Policy at provided that “Commission entitlements are calculated based on the Invoice amount credited to the Employee as recorded on the Deal Tracking Form less ...”. The Deed, however, contained no provision for “Deal Tracking Forms” or “invoice amount[s] credited”.

15. [34]

    As regards the third sentence, as noted Mr Hudson accepted that the Policy would apply to the four deals referred to in Sch 3B. Mr Hudson also relied on the fact that in Sch 3B itself there is a sentence under the table stating: “The terms of the [Policy] will apply to these potential commission entitlement as set out in this Schedule 3 B”. He also noted that the relevant heading in the table in Sch 3B referred to “Allocated Revenue (approximate)” (emphasis added). In contrast, the equivalent heading in Sch 3A was simply “Allocated Revenue”. The force of that point is diminished by the fact that the amounts in Sch 3B are also listed in Sch 3A.

16. [35]

    I am not persuaded of the construction propounded by Mr Hudson. In my view the effect of cl 1(a)(iii) relevantly is that the terms of the Policy apply to the commissions listed in the whole of Sch 3, and not just those in Sch 3B, subject to the two express variations expressed in the second sentence. That is so in light of the following factors, taken together.

17. [36]

    Clause 1(a)(iii), read with the chapeau, provides in the first sentence that “the Employer will pay the Employee: … [a]ny commissions that the Employee would be entitled to receive pursuant to the [Policy], following the Termination Date”. The starting point of the clause is the entitlements to which Mr Hudson would be entitled under the Policy, where those entitlements would be contingent relevantly upon payment having been received (per cl 2.1.2 of the Policy). As counsel for Mr Hudson put it, the words “would be entitled” effectively meant “I will pay you what you would have been entitled to”.

18. [37]

    Strictly it was not necessary to reaffirm the application of the Policy, given that Mr Hudson already had contractual rights under the Policy as read with his employment contract. However, it is unsurprising that the parties would seek to express in encompassing terms what payments Colliers was liable to make in connection with the termination of his employment. Moreover, that affirmation of the Policy set the context for the variations identified in the second sentence of the clause. While the clause did not state that the commissions were payable immediately (or within a reasonable time), the first sentence could be read in that way. However, it must be construed holistically with the subsequent two sentences in the clause.

19. [38]

    The second sentence records agreement that “In this respect, notwithstanding clause 1.7.2 of the Policy, the Parties agree that these commissions are set out in Schedule 3 …” (emphasis added). The commissions being referred to are the commissions identified in the first sentence, being the commissions to which Mr Hudson would be entitled under the Policy.

20. [39]

    The second sentence varies the operation of the Policy in two respects. First, pursuant to the words “notwithstanding clause 1.7.2 of the Policy”, Mr Hudson was to be entitled to receive commission on the four deals identified in Sch 3B, which had not yet been invoiced. Otherwise, pursuant to cl 1.7.2, he would not have been entitled to receive commissions for transactions that had not been invoiced and approved by his manager on or before his last day of employment. The second variation was that as regards the Circular Quay invoice, and another identified invoice (20405), the provision in the Policy allowing reduction of the commission by the “Late Payment Reduction” was disapplied.

21. [40]

    The express exclusion of Late Payment Reductions only for the two identified arrangements indicates an understanding that Late Payment Reductions would otherwise apply in relation to all other arrangements. And that could only be so if Mr Hudson’s entitlement was contingent on Colliers being paid, such that the timing of payment was relevant. That understanding is reinforced by the fact that the overriding of the Late Payment Reduction for the two identified arrangements was itself expressed to be in relation to “any invoice ultimately paid under either” arrangement (emphasis added). Those words indicate that the issue of any such reduction would only have arisen if and when payment was received, which presupposes that Mr Hudson’s entitlement to payment of the commission was subject to Colliers actually receiving payment from the client, consistently with cl 2.1.2 of the Policy.

22. [41]

    The express exclusion of the Late Payment Reduction for the two deals also suggests that the parties considered that the other permitted reduction mechanisms set out in cl 1.4 of the Policy would apply, those types of reduction not having been expressly excluded in the same way. That understanding presupposes application of the Policy to all of the applicant’s commissions, except as expressly excluded. Conversely, on Mr Hudson’s construction the words which excluded the Late Payment Reduction for the two identified invoices would be superfluous because that effect would be achieved by the clause simply deeming that commission had to be paid on the identified sums.

23. [42]

    It is understandable, incidentally, that the parties would agree to exclude any deduction for late payment with respect to the Circular Quay invoice. A dispute with the client had already arisen by the time of the Deed, payment was already overdue, and the client was having the matter investigated. Colliers foresaw that it might need Mr Hudson’s assistance with the investigation and he agreed to provide it. The exclusion of a Late Payment Reduction can readily be seen as a quid pro quo for that assistance. Presumably some particular issue had also arisen in relation to the other identified invoice, but the nature of that issue was not explained.

24. [43]

    Each side sought to call in aid the third sentence and, in particular, its reference to “For the avoidance of doubt”. Mr Hudson sought to give those words an expressio unius spin, arguing that the express statement that the Policy applied to the potential commissions identified in Sch 3B implied that otherwise the Policy did not apply. Colliers put the counter-spin that the words simply sought to dispel any doubt that the Policy applied in full to the potential commissions. As those arguments illustrate, the phrase “for the avoidance of doubt” can be employed on the basis that the point being addressed was obviously intended to be covered by what had gone before, or was obviously not intended to be covered by what had gone before, and was being addressed just to dispel any conceivable doubt. In my view both types of understanding are open here. Counsel for Colliers agreed, saying “[w]e are blessed to have your Honours making the choice rather than us, because we certainly would accept that both of those constructions are in fact open in the circumstances”. In this regard the third sentence does little to advance the analysis either way, beyond making clear that the Policy did apply to the deals in Sch 3B.

25. [44]

    That being said, it is not apparent why the parties would agree that the conditions in the Policy should apply to the potential commissions but not apply with respect to the deals already invoiced. And if they had intended that the potential commission amounts identified in Sch 3A (other than for the four last deals) were to be payable immediately despite the terms of the Policy, then it would have been much simpler to identify the numeric amount.

26. [45]

    The construction I have identified gives clause 1(a)(iii), along with Sch 3, real work to do. The entitlement to commissions pursuant to the Policy was affirmed subject to two variations, and the clause and Sch 3 record definitively that the parties agree on identification of all the deals and revenue to be attributed to Mr Hudson, so as to avoid any future dispute about that issue. As counsel for Mr Hudson correctly put it, “the calculation is performed on the basis of the commissions that we have agreed in this schedule”. Thus, as Mr Hudson argued (see above at [33]), the status of “deal tracking forms” and so forth was rendered irrelevant.

27. [46]

    However, agreement on the deals and revenue to be attributed is a distinct issue from whether or not Mr Hudson’s entitlement to be paid those commissions remained contingent on Colliers having received payment. The Policy provided for means of identification of the “commission” payable, then imposed a requirement that the invoices had been paid in full by the client as a condition precedent to actual payment of that “commission”. That there was a difference between identification of the commission and its payment is illustrated by the fact that the heading of cl 1 in the Policy was “Calculation of Commission” and the heading of cl 2 was “Payment & Administration of Commission Entitlements”. These provisions in the Policy form part of the context in which the Deed falls to be construed. It will be recalled that cl 1(a)(iii) refers to “[a]ny commissions that the Employee would be entitled to receive” (emphasis added), that is, would be entitled to be paid.

28. [47]

    Mr Hudson referred to cll 2.2 and 2.3 of the Policy which provided that Colliers may agree to pay commission payments in advance. He asserted that that is what had been agreed in the Deed. However, those provisions do not advance matters, as they simply illustrate that Colliers might have agreed to pay in advance. The issue in dispute is whether or not Colliers had done so.

29. [48]

    Colliers argued that the Policy gave it “a broad and unconstrained discretion” to reduce the amount of commission payable to employees. That argument rested on the unpromising foundation of a definition in the Policy of the term “Invoice Amount” to mean “the total amount of each Invoice treated as Revenue by the Company”. It is not necessary to address this argument. The dispute about the amount payable to Mr Hudson with respect to the Circular Quay invoice related to the fact that the client and Colliers ended up agreeing that the client would pay a lesser amount than what originally had been invoiced. No complaint was made by Mr Hudson about how Colliers then attributed to him a proportion of the revenue actually paid. Thus he was not complaining about some exercise of discretion by Colliers vis-à-vis him. His complaint was that he was entitled to be paid as though the original invoice had been paid in full even though it had not been. Yet that simply reflected the operation of cl 2.1.2. No suggestion was made that Colliers reached an agreement with the client about reducing its bill in bad faith, as part of some attempt to reduce the commission payable to Mr Hudson.

30. [49]

    It will be recalled that cl 2.1.2 provides that “Commission becomes payable when: … The invoices have been paid in full by the client”. Other considerations would have arisen if Colliers had refused to pay Mr Hudson any commission in relation to the Circular Quay deal on the basis that the particular invoice originally issued to the client, as identified in Sch 3A, was cancelled and another one issued in its place. Any such dispute would have required considering how to construe the words in these provisions, and may have taken account of implied requirements of good faith. Such points do not arise on the facts here.

31. [50]

    Counsel for Mr Hudson raised a related concern about Colliers being able to avoid payment of commission, based on cl 2.1.2, because a client paid say $1 less than the full amount in the invoice. Again that is not this case, and it is not necessary to decide whether such a literalistic construction should be adopted.

32. [51]

    In the result, cl 1(a)(iii) of the Deed does not have the effect of disapplying cl 2.1.2 of the Policy in relation to the amounts identified in Sch 3A, including the Circular Quay invoice. The primary judge was correct to hold that Mr Hudson’s entitlement to receive payment of commission for those invoices was dependent on Colliers being paid on those invoices. Colliers was not paid the full amount claimed on the original invoice issued with respect to Circular Quay. In that context it was entitled to reduce the commission allocated to Mr Hudson in relation to that lease. Ground 1 of the appeal should be rejected.

Ground 2: entitlement to commission

1. [52]

   Ground 2 was said to relate to disputes about the commission payable on three deals: the Circular Quay Lease, the Westfield Lease, and the putative St Collins Lane deal. As regards the first, Mr Hudson had complained, with good reason, that the primary judge had relied on portions of the evidence of Mr Bates which had been rejected or not read when considering his claim. Clearly, the judge erred in so doing: note Orleans Investments Pty Ltd v MindShare Communications Ltd [2009] NSWCA 40; (2009) 254 ALR 81 at [23]-[24] and [35]. The error may have occurred in part because her Honour handed down her judgment nearly 18 months after the hearing, when memory of what occurred at trial would have faded. Fault can also be attributed to Colliers. It provided closing written submissions relevantly referring back to its opening submissions, which referred to that evidence. In any event, the error is not material given the construction of cl 1(a)(iii) adopted above.

2. [53]

   The other two deals were included in the four potential commission entitlements listed in Sch 3B. There was thus no dispute that the terms of the Policy applied to those claims. Distinct issues arise in relation to each of them.

3. [54]

   In September 2015 Colliers entered into an agency agreement with Scentre Shopping Centre Management Pty Ltd (Scentre), which had requested Colliers’ assistance in identifying a suitable candidate for a tenancy on the rooftop of Westfield Sydney in Pitt St. The agreement provided that Colliers was not authorised itself to enter a lease as agent for Scentre. Its role was simply to find and introduce potential tenants. Colliers was entitled to commission if Scentre and the introduced person then entered a lease. Correspondence between Colliers and Scentre indicated a mutual understanding that Colliers’ fees would be capped at $200,000.

4. [55]

   Pursuant to that agreement, Mr Hudson introduced Scentre to the Mantle Group as a potential tenant, doing so shortly before he left the employment of Colliers. It seems another Colliers employee assumed responsibility for the deal after Mr Hudson left. Scentre and Mantle engaged in negotiations for a time, which eventually broke down. Some 18 months later Scentre reopened negotiations with Mantle and the Westfield Lease was executed.

5. [56]

   As a result, in late 2017 Mr Bate contacted Scentre seeking payment of commission under the agreement. Scentre agreed to pay an amount of $200,000. Two invoices were subsequently issued by Colliers for $100,000 (plus GST) each. One of those invoices was paid in 2018 and the other in 2019.

6. [57]

   The primary judge held that no commission was payable. Her Honour found that “the first negotiations failed”, and the agreement ultimately reached between Scentre and Mantle “was a different transaction to that involving Mr Hudson” (at [82]).

7. [58]

   That conclusion was wrong. The negotiations between Scentre and Mantle may have broken down before being reactivated after a lengthy delay. Yet it was the same two parties who were negotiating. It was not Colliers’ role to undertake those negotiations. Indeed, Colliers acknowledged that the re-opened negotiations between Scentre and Mantle “did not involve the Appellant or the Respondent in any way”. The negotiating parties had been introduced to each other by Mr Hudson on behalf of Colliers. It was not suggested that Colliers had any basis to claim commission other than because of the introduction effected by Mr Hudson. As regards Colliers, it was in no sense “a different transaction”.

8. [59]

   Moreover, the $200,000 listed against the Westfield invoice in Sch 3B (and Sch 3A) of the Deed aligns with the agreed cap on Colliers’ fees and the amount ultimately invoiced and paid. Colliers and Mr Hudson had thus definitively agreed that revenue of that amount was to be attributed to Mr Hudson (see [45] above). Because of cl 2.1.2 of the Policy, commission was not payable on that amount until the identified revenue was paid by the client. But that amount was paid by Scentre, albeit after an extended delay. No arguments have been made about Mr Hudson’s commission being reduced because of late payment.

9. [60]

   Mr Hudson was entitled to commission payable on the $200,000 revenue attributable to the Westfield Lease. Ground 2 should be upheld to that extent.

10. [61]

    On 16 September 2014 Colliers and The Trust Company (Australia) Limited entered into an “Exclusive Commercial Leasing Authority” in relation to “260 Collins St, Melbourne (St Collins Lane)”. A lease was subsequently arranged by Colliers. On 29 April 2016 Colliers issued invoice CIVIC19360 to the Trust Company. The invoiced amount was $34,891.05 (incl GST). Mr Hudson was listed as one of three “operators” on the invoice. The tenant identified on the invoice was “Los Vida” and the property identified was “St Collins Lane, 260 Collins St” in Melbourne. A draft invoice dated 21 December 2015 more specifically identified the Los Vida tenancy as “FL 2.01, Level 2, St Collins Lane”.

11. [62]

    The invoice number for this invoice aligns with an entry in Sch 3A to the Deed for “260 Collins St”. The invoice amount is greater than the $15,859.57 recorded as allocated revenue for Mr Hudson in Sch 3A in relation to that transaction, presumably because the revenue was divided between the various Colliers “operators” on the invoice. Mr Hudson was paid commission for this lease.

12. [63]

    In Sch 3A there is a separate entry, echoed in Sch 3B, for “St Collins Lane”, where the debtor is listed as “Sumo Salad”. Presumptively, from the two listings in the schedule, this related to a different tenancy. There was some evidence apparently relating to that putative lease. On 10 November 2016 ENA Food Group Pty Ltd signed a counterpart of a heads of agreement with the Trust Company in relation to the lease of “Shop FL2.02 Level 2 St. Collins Lane”. No counterpart executed by the Trust Company was in evidence and it is not clear if the deal was agreed. Colliers has not paid Mr Hudson any commission with respect to this putative deal.

13. [64]

    The primary judge found that the disputed deal relating to St Collins Lane was duplicative of the CIVIC19360 invoice to the Trust Company (at [83]-[86]). Critical to this finding was her Honour’s reliance on evidence of Mr Bate that had not been read. Her Honour’s reasoning was thus erroneous. Moreover, there is good reason to conclude that this putative deal was distinct from the earlier one. It seemingly related to a different shop (FL2.02 as opposed to FL2.01). It involved a different trader (“Los Vida” versus ENA or “Sumo Salad”). It related to a different time. And the fact that there are different entries in Sch 3A itself resolves the issue where, as explained, the point of that schedule was definitively to identify the revenue allocated to Mr Hudson. These facts are consistent with Mr Hudson's own evidence that there “were two different deals at two different premises”.

14. [65]

    However, these facts do not suffice to establish Mr Hudson’s entitlement to payment of commission. There is no evidence that any invoice was issued by Colliers with respect to this putative lease. And, if such an invoice had been issued, there was no evidence it had been paid to Colliers. Mr Hudson’s entitlement to payment was contingent on Colliers having been paid. The onus of proof was on Mr Hudson to prove the facts on which his claim rested.

15. [66]

    Mr Hudson did not dispute his onus but relied on the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 that evidence should be weighed according to the capacity of a party to produce it. He argued it was within the capacity of Colliers to adduce evidence as to whether the putative deal had led to an invoice and payment.

16. [67]

    In Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17 the following was said (citations omitted):

17. [68]

    As that passage indicates, the principle in Blatch v Archer and connected principles do not alter the burden of proof. The civil onus of balance of probabilities requires that the fact-finder have “an actual persuasion”, a “reasonable satisfaction”, as to the claimed facts: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362; [1938] HCA 34. Whether or not the onus is discharged is to be assessed by the fact-finder at the end of the case when all the evidence is in. For these reasons, to speak of a shifting “tactical” burden or onus can be liable to cause confusion: Ceerose Pty Ltd v The Owners – Strata Plan No 89074 [2025] NSWCA 235 at [35]-[36]. However, the process of reaching such an actual persuasion or reasonable satisfaction may be affected by established principles and juridical guidelines.

18. [69]

    For example, the rule in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 is that an unexplained failure by a party to call a witness may in appropriate circumstances, first, support an inference that the uncalled evidence would not have assisted the party’s case, and, second, may permit the fact-finder to draw with greater confidence any inference unfavourable to the party that failed to call the witness: note Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63]. The principle is not about the admissibility of evidence or the burden of proof. Rather, it is “a principle of judicial reasoning which addresses the drawing of inferences of fact”: Ling v Pang [2023] NSWCA 112 at [24].

19. [70]

    There are other such principles. One applies with respect to disentangling causal contributors to established incapacity or harm: see Watts v Rake (1960) 108 CLR 158 at 159-160; [1960] HCA 58; Purkess v Crittenden (1965) 114 CLR 164 at 167-168 and 170-171; [1965] HCA 34. Dixon J explained the approach articulated there as reflecting a “presumptio hominis” (Watts at 160), that is, a human presumption which is applied in the reasoning involved in fact finding. As Windeyer J put it in Purkess, “[t]he ordinary conclusion when a man suffers a hurt is that all the consequences that follow it are attributable to the events that immediately caused it” (at 171), and “[i]t is not incumbent on the plaintiff to lead evidence to displace or discount the inference to which the facts would otherwise give rise” (at 170).

20. [71]

    Another example is that in contract claims the “legal onus to prove loss arising from a breach of contract falls upon the plaintiff”, but in “some circumstances the common law facilitates its discharge”: Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39; [2024] HCA 17 at [127]. In particular, a “facilitation principle” will apply such that “a plaintiff is assisted in proof by reasonable inferences where a defendant’s breach has resulted in difficulties or impossibilities of proof of loss or damage” (ibid). This principle “is concerned with how the claiming party may discharge that onus” of proof which it bears: Financialstrategy.com.au Pty Ltd (in liq) v Bailey Roberts Group Pty Limited (in liq) [2026] NSWCA 74 at [115].

21. [72]

    Lord Mansfield’s statement in Blatch v Archer overtly was directed to the weighing of evidence, that is, to the assessment of what is established on the evidence before the court. His reference to what “was in the power of one side to have produced” indicates that account can be taken in the factual reasoning process of the means of investigation and production available to a party. Indeed, the relevant issue in that case related to whether a particular person should have been subpoenaed to give evidence.

22. [73]

    Here, no doubt it was Colliers and not Mr Hudson that held the evidence as to whether or not an invoice had been issued and had been paid in relation to the second St Collins Lane property. However, such evidence could readily have been sought by Mr Hudson by way of discovery, a notice to produce, or a subpoena to the relevant client or tenant. Taking such steps would have not involved great difficulty or cost. And it appears that a notice to produce encompassing this point was issued and some documents were produced. Colliers made an uncontradicted submission that “no issue was taken with respect to the adequacy of that particular production, [and] there were no documents in that bundle of material that dealt with or identified a Sumo Salad transaction”. Where production of evidence held by one party has been sought by compulsive process, and the adequacy of production not challenged, the absence of evidence is evidence of absence.

23. [74]

    In this context the principle in Blatch v Archer has no role to play. The Court has no evidence that any invoice was issued let alone paid with respect to this putative lease. There is no basis to infer that payment was made. Mr Hudson has failed to discharge his onus of proof with respect to his claim in relation to the St Collins Lane property. This aspect of Ground 2 must be rejected.

Ground 3: consequential loss

1. [75]

   In his further amended statement of claim Mr Hudson claimed the sum of $296,648 in commission on the three disputed deals, and then a further amount to cover his consequential loss for the loss of the opportunity to use that sum “towards the purchase of a residential property in Paddington and realise and apply that capital gain to the Plaintiff’s current residential property”. Mr Hudson did purchase a Paddington residence in November 2016. He claimed he would have bought a more expensive residence if the disputed commission had been paid. There was some argument as to whether Mr Hudson’s claim was premised on the purchase of a particular identified house in Paddington or whether the claim was put more broadly as a house of that kind. It is not necessary to resolve that dispute. Importantly, Mr Hudson’s evidence was predicated on him being paid all of the disputed commission, with that commission being paid to him within some two months of signing the Deed.

2. [76]

   The primary judge appropriately considered this issue, lest her findings on liability be in error. Her Honour rejected the claim for reasons which included that the claimed loss of opportunity could not be said to have been in the contemplation of the parties, such that the claim was too remote.

3. [77]

   The identified amount of $296,648 was the commission that would have been payable on the attributed revenue of $693,499.14 on the Circular Quay Lease, $200,000.00 for the Westfield Lease, and $15,000.00 for the putative Sumo Salad lease. In light of the above analysis, the revenue attributable to Circular Quay was reduced to $450,000 and no amount was payable for Sumo Salad. As for the Westfield Lease, for which the commission would have been in the order of $100,000, that amount is not relevant to the claimed loss of opportunity, as counsel for Mr Hudson accepted in this appeal. That was so because the revenue and commission were only payable after the Westfield deal was concluded. The invoices were paid in 2018 and 2019. Thus the amount payable by Colliers in 2016 was substantially less than the amount upon which Mr Hudson’s claim was predicated, fatally undermining that claim.

4. [78]

   Even if I had reached a different conclusion on Grounds 1 and 2, Mr Hudson would still not have made out his claim. Mr Hudson’s evidence was that if he had received the claimed commission of $296,648 this would have given him an additional amount of some $148,000 after tax to spend in 2016 on buying a Paddington home. This evidence proceeded on the erroneous assumption that he would at that time have received in the order of $50,000 after tax with respect to the Westfield Lease. The maximum amount that on Mr Hudson’s case he should have received from Colliers (excluding Westfield) was in the order of $100,000. His evidence did not address what he would have done in that circumstance, which was materially different to the situation which he did address. This is not a case where the Court can infer some middle position. To do so would be an exercise in speculation which the Court should not attempt, especially when Mr Hudson has claimed prejudgment interest to compensate him for the loss of the use of the money due. Ground 3 is not made out on the facts. It is unnecessary to address remoteness.

Conclusion and orders

1. [79]

   The notice of appeal was filed two days late. The respondents did not oppose an extension of time being granted. Mr Hudson has succeeded only in relation to his claim for commission with respect to the Westfield Lease. The appeal must be upheld to that extent. Order 1 made by the primary judge on 8 August 2025, dismissing Mr Hudson’s claim, should be set aside. What orders should be made in its place involves consideration of Mr Hudson’s claim for interest. The primary judge also gave a separate judgment on 5 December 2025 addressing costs. Whether those costs orders should be set aside and replaced by alternative orders remains to be determined. The respondents sought to be heard separately on costs.

2. [80]

   The parties should seek to reach agreement on these and any other remaining matters. The orders will provide for exchange of materials to the extent agreement is not reached. Any remaining disputes will be determined on the papers, unless some good reason to the contrary is provided by either side.

3. [81]

   The orders should be as follows:

   1. (1)

      Extend time for the filing of the notice of appeal to 10 September 2025.

   2. (2)

      Appeal allowed in part.

   3. (3)

      Set aside order 1 made in the District Court on 8 August 2025.

   4. (4)

      The parties are to notify the Court of any agreement reached with respect to final orders by 27 May 2026.

   5. (5)

      To the extent that agreement is not reached on final orders: