Paul Folino-Gallo appeared for the successful respondent, Costi Cohen Pty Ltd, in Bo v Costi Cohen Pty Ltd [2026] NSWCA 173.
The proceeding was an appeal concerning a commercial buyer’s agent’s claim to recover commission following the purchase of a property at Drummoyne for $7.55 million by a company associated with the appellant.
The case concerned the interaction between the unfair contract terms regime in ss 23 and 24 of the Australian Consumer Law and the law of restitution. The primary judge found the commission clause in the agency agreement to be an unfair term, and therefore void, but nonetheless allowed the agent to recover the amount claimed on a quantum meruit.
On appeal it was contended that permitting that recovery stultified the legislative policy of the unfair contract terms regime, that the restitutionary claim did not “fit” with the balance of the agency agreement, and that the agent had failed to discharge its onus as to quantum in the absence of evidence of an external or industry standard for the work performed.
The Court of Appeal (Mitchelmore JA, Ward P and Stern JA agreeing) dismissed the appeal. The legislative policy was not stultified by permitting a claim in restitution where the services themselves were not prohibited and only the term pursuant to which they were provided was void, the civil penalty regime continuing to supply the financial disincentive to including unfair terms. The claim “fit” with the agreement because the avoidance of the clause left the agent with no accrued contractual right to payment and the agreement otherwise silent as to the fair and reasonable value of the services.
As to quantum, what is required to discharge the onus is fact-specific, and no external standard was a precondition to recovery: the agreed percentage was some evidence of reasonableness, which, taken with the director’s evidence of his standard fee range and the absence of any competing evidence or challenge to the fee, was sufficient.
