kea95024.J

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA

Nos.29 and 30 of 1995

						BETWEEN:

						CATHY YUK CHU LIN
							Plaintiff

						AND:

						KATAMON PTY LTD
							First Defendant

						AND:

						FRANK HUNG CHI LAM
							Second Defendant

CORAM:   KEARNEY J

	REASONS FOR DECISION

	(Delivered 11 April 1995)

		The interlocutory relief sought
		On 28 February 1995 the plaintiff instituted Writ proceedings no.29 of 1995 against the defendants.  Pars1-7 of the Statement of Claim endorsed on the Writ, particularly par4, are relevant for present purposes; they state:-
		"1.	The First Defendant is a company duly incorporated in the Northern Territory.

		 2.	At all material times the First Defendant was the registered proprietor of:-

			(a)	Lot 2666 Town of Darwin ("Lot 2666");

			(b)	Four other properties near Lot 2666, namely those where is situated the Capricornia Motel, Genghis Khan Restaurant, an adjacent carparking area, and a property to the rear of the Capricornia Motel ("the certain properties").

		 3.	At all material times the Second Defendant:

			(a)	was principal executive officer of the First Defendant;
		
			(b)	was one of the two directors of and shareholders in the First Defendant;

			(c)	was authorised to act on behalf of the First Defendant;

			(d)	held himself out as having full authority to deal with property owned by the First Defendant including Lot 2666 and the certain properties.

		 4.	On or about 29 November 1993 the First Defendant agreed to sell Lot 2666 to the Plaintiff for $20,000.00

				Particulars of the agreement 
		
			The agreement was made in Hong Kong between the Plaintiff and the Second Defendant on behalf of the First Defendant.  It was wholly, alternatively partly, in writing signed on 29 November 1993 by the Plaintiff and by the Second Defendant in the presence of Mr Ho Hon Chung.

		 5.	The Plaintiff has tendered to the First Defendant or to its solicitor for execution the appropriate transfer of Lot 2666.

		 6.	All conditions have been fulfilled and all things have happened, rendering it proper for the Defendants to carry the said agreement into execution, but although requested to do so the Defendants have neglected and refused and still neglect and refuse to carry the said agreement into execution on their part.

		 7.	The Plaintiff is and always has been ready and willing and hereby offers to carry out the said agreement so far as the same remains to be performed on her part".

		Pars14 and 15 state:-
		"14.	On or about 4 July 1994 the Plaintiff caused to be lodged with the Registrar General a caveat over Lot 2666.

		 15.	On or about 17 February 1995 the Registrar General gave notice in writing to the Plaintiff requiring that the Caveat be withdrawn."
The notice referred to in par15 is the 21-days statutory notice in s191(V) of the Real Property Act.  Section 191(VI) provides that after the lapse of the 21 days "or of such extended time as may be ordered by the Court" the Registrar General "shall - - - remove the caveat from the Register."  Section 191(VII) enables a caveator to apply to the Court "for an order to extend the time beyond the 21 days"; on such an application the Court "may - - - make such order - - - as shall seem just."  The caveat in question was no.312079 and the grounds of claim therein set out were -
		"Interest in property [Lot 2666] under agreement of sale executed in Hong Kong dated 29/11/93";
see annexure "A" to Mr Moore's affidavit of 1 March 1995.
		In par16 of the Statement of Claim the plaintiff seeks, inter alia, the following relief:-
		"(a)	A declaration that there is a binding and enforceable agreement between the Plaintiff as purchaser and the First Defendant as vendor for the purchase and sale of Lot 2666 for the sum of $20,000.00;

		 (b)	An order that the said agreement be specifically performed;

		 - - - 

		 (g)	An order under Section 191(VII) of the Real Property Act extending the time before the Registrar General may remove the caveat to such time as completion occurs."

		In par8 of the Statement of Claim the plaintiff put her claim against the defendants on an alternative basis to that set out in pars1-7, viz:-
		"8.	Further and alternatively, in or about September 1993 the Second Defendant represented to and agreed with the Plaintiff that in return for her procuring one or more persons to contribute at least $1.8 million to be used by the First and Second Defendants for the benefit of the certain properties, the Second Defendant would cause Lot 2666 to be transferred to her."
		On 1 March 1995 the plaintiff filed a Summons in proceedings no.29 of 1995 seeking the following interlocutory relief:-
		"(1)	An order under section 191(VII) Real Property Act extending the time before the Registrar General may remove the caveat to such time as completion occurs;

		 (2)	An order that pending completion of the said agreement the Defendants be restrained from selling, mortgaging, alienating or otherwise dealing with the said property except under direction of the Plaintiff;

		 (3)	An order that pending completion of the said agreement the Defendants, their servants and agents, be restrained from carrying out or causing or permitting to be carried out any works, other than those necessary to maintain the said property in the condition in which it was in as at 29 November 1993 of whatsoever nature, whether structural or otherwise to the said property or to any of the improvements erected thereon except those to which the Plaintiff has consented in writing."
It will be noted that item (1) above is identical with the relief sought in par16(g) of the Statement of Claim (p3).
		By Originating Motion of 1 March 1995 the plaintiff instituted proceedings no.30 of 1995 against the defendants, seeking the following interlocutory relief, very similar to that in (1), (2) and (3) on p4, viz:-
		"1.	An order under Section 191(VII) of the Real Property Act extending the time before the Registrar General may remove caveat No. 312079 until further order;

		 2.	An order that the Defendants be restrained from selling, mortgaging, alienating or otherwise dealing with Lot 2666 Town of Darwin except under direction of the Plaintiff, until further order;

		 3.	An order that pending completion of the transfer of Lot 2666 to the Plaintiff the Defendants, their servants and agents, be restrained from carrying out or causing or permitting to be carried out any works, other than those necessary to maintain the said property in the condition in which it was in as at 29 November 1993 of whatsoever nature, whether structural or otherwise to the said property or to any of the improvements erected thereon except those to which the Plaintiff has consented in writing."
On the same day, 1 March 1995, the plaintiff filed a Summons in proceedings no.30 of 1995 seeking as interlocutory relief the relief sought in the Originating Motion.
		By consent the applications for interlocutory relief in these two proceedings Nos.29 and 30 of 1995 have since been heard together.  The argument before me was directed to the relief sought in par1 of the respective Summonses - the extension beyond the statutory 21 days, under s191(VII) of the Act, of the time after which the Registrar General is required by s191(VI) to remove the caveat.
		The Summonses first came on for hearing before me on 2 March.  Mr Alderman of counsel for the plaintiff usefully referred me to Whallin v Bailbart Investments Pty Ltd (1987) 47 SASR 198, on the principles applicable on such an application.  In that case Cox J reviewed the authorities and expressed his views as follows, at pp203-4:-
		"A caveator litigant who wishes to have the caveat maintained until judgment may, when the caveat is warned [in terms of s191(V)], apply for the usual limited extension of time under par VII of s191.  For this he will probably only need to show that he was justified in lodging the caveat.  Before that extended time expires, he may seek a further extension, this time until further order.  For this he will need to offer the usual undertakings as to damages and to satisfy the test appropriate to the grant of an interlocutory injunction.  If he succeeds in this application, he will not ordinarily need to obtain the actual injunction as well.  If he fails, that will probably be the end of the matter - - - There may be cases in which the caveator is ready, at the first par VII hearing, with his undertaking and evidence to support an extension of time until further order.  In that event, and subject to the proper interests of the caveatee, it may be possible to eliminate the usual intermediate step of a limited extension as well." (emphasis mine)
I respectfully adopt this approach.  It was common ground that the test to determine whether time should be extended, was that "appropriate to the grant of an interlocutory injunction".  An undertaking as to damages was given by the plaintiff.  The applications were argued on the basis set out in the passage emphasized above.
		The hearing on 2 March 1995 did not proceed very far.  Mr Alderman of counsel for the plaintiff ultimately sought and secured an adjournment, in order that he could obtain the evidence of the plaintiff.  The applications were fully argued on 27 and 28 March.  I reserved judgment until 4 April and meanwhile extended the caveat until 9 am on 5 April.  On 4 April I refused the applications to extend time, on the basis that the plaintiff had "failed to show that there is a serious question to be tried as regards the sole question ultimately argued - - 'the question of illegality'". I expressed some conclusions briefly and said I would publish reasons for decision on 10 April; I now do so, a day late.
		The sole issue on the applications: 'the question of illegality'
		Although initially an issue was raised as to the admissibility in evidence of the agreement of 24 November 1993 under s.121 of the Taxation (Administration) Act, arising from the fact that that document, on which the plaintiff founded, had not been stamped, that issue was ultimately resolved by the plaintiff's solicitor's undertaking to have it stamped; see Dimmock v. Whymark (1965) 65SR(NSW) 194.  In the result, the sole question argued was the effect on the applications of s.121 of the Agents Licensing Act (herein "the Act"), which provides, as far as material:-
	121.	"A person is not entitled to bring an action to recover a fee, commission or other gain or reward for acting as an agent for a principal in relation to a matter referred to in section 5(2) or to work which, under this Act, a conveyancing agent may perform unless -

		(a)	at the time the person was engaged to act as an agent, the person was a licensed agent and was such an agent at the time of acting as agent; 

			- - -."

It was conceded for the purpose of the applications that the plaintiff was not a "licensed agent" in terms of s.121(a).
		Section 5(2) of the Act is a definition section; it provides as follows:-
		"(2)  For the purposes of this Act, but subject to section 4 -

		(a)	"real estate agent" means a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or money's worth as commission, reward or remuneration, in respect of -

			(i)	the sale, purchase, exchange, leasing, letting or other dealings with, or the disposition of; or

			(ii)	negotiations for the sale, purchase, exchange, leasing, letting or other dealings with, or the disposition of,

			land, whether within or outside the Territory, and includes a corporation manager under the Unit Titles Act; and

		(b)	"business agent" means a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or money's worth as commission, reward or remuneration, in respect of -

			(i)	the sale, purchase, exchange, leasing or letting or other dealings with, or the disposition of; or

			(ii)	negotiations for the sale, purchase, exchange, leasing, letting or other dealings with, or the disposition of,
			a business or any share or interest in a business, or the goodwill in, or stock-in-trade of, a business, but does not include the sale, purchase, exchange or other dealings with, or the disposition of a share in the capital of a body corporate carrying on a business; and

		(c)	"conveyancing agent" means a person whose business either alone or as part of or in connection with any other business, is to act as agent for consideration in money or money's worth as commission, reward or remuneration (whether or not paid directly or indirectly for the service provided), in respect of a matter set out in Part 1 of the Schedule in accordance with the requirements specified in Part 2 of the Schedule." (emphasis mine)

		I consider that for the purposes of s.121 "a matter referred to in section 5(2)" is any of the matters emphasized above.
		The defendants' case was that the plaintiff's caveatable interest, formally based (p3) on the written agreement in Hong Kong of 29 November 1993, was in reality derived from an agreement she had made with the second defendant, by which she was to receive from him Lot 2666 as a commission for successfully introducing a purchaser for other allotments, a transaction which was caught by s.121 of the Act and hence unenforceable since she was not a 'licensed agent'; accordingly, time should not be extended, and the caveat should be removed.  The plaintiff's case was that her action No.29 of 1995 was not "an action to recover a fee, commission or other gain or reward for acting as an agent", in terms of s.121 of the Act, but an action to enforce the simple Hong Kong agreement of 29 November 1993.  At this stage the Court was concerned only with whether there was a serious question to be tried, on this issue.		
		Both counsel referred to the effect of s.121 in terms of 'the question of illegality'.  That is somewhat misleading.  It will be noted that s.121 of the Act does not make it illegal for an unlicensed person to act as an agent in relation to a specified matter; it merely prevents such a person from suing to recover a fee etc for that work.  It is akin to the type of provision dealt with for example, in Tea Tree Gully Builders Co. Pty. Ltd. v Martin (1992) 59 SASR 344; cf. Steelhomes (1985) Pty. Ltd. v. Hutts (1993) 9SR(WA) 143 and J.C. Scott Constructions v Mermaid Waters Tavern Pty. Ltd. [1984] 2 Qd.R.413, where the provisions in question also carried a statutory penalty.  Section 17(1) penalizes unlicensed persons who "carry on business" as agents, which points to a continuity factor not required in s.121.
		The affidavit materials relied on by the parties
		Mr Holmes QC of senior counsel for the plaintiff observed that there would be a dispute as to whether the plaintiff was "carrying on business" in Darwin at relevant times.  The plaintiff moved on the affidavit evidence of Mr Moore of 1 March 1995, Mr Quaife of 2 March (other than par 10), and her own affidavits of 21 and 27 March.  Mr Abbott QC of senior counsel for the defendants read the affidavit of Mr Power of 17 March, and also relied on evidence elicited from the plaintiff in cross-examination. I turn to this material. 
		(a)	The affidavit material relied on by the plaintiff
		The plaintiff in her affidavit of 21 March 1995 affirmed as follows, as far as material:-
		"1.	I first met the second defendant Frank Lam at his office at the Capricornia Motel on East Point Road, Darwin on a day between 5 June 1993 and 21 June 1993.

		 2.	My native language is the Cantonese dialect of the Chinese language.  The second defendant also speaks Cantonese and to my direct knowledge reads and writes Chinese.  Conversations between us were usually carried on in the Cantonese dialect.

		 3.	At our first meeting the second defendant told me that he owned the property on which was situated the Capricornia Motel and the Ghengis Khan restaurant.  He also told me about the plans he had for the redevelopment of the property.  He said that the existing building was old and needed to be rebuilt but that he did not have the money to carry out the project.  He showed me a prospectus that he had prepared.  He said that he needed to find someone who was prepared either to invest in the redevelopment or buy the whole property from him.

		 4.	Exhibited hereto and marked "EX1" is the prospectus document handed to me by the second defendant.  At that time I spoke very  limited English and could not read it at all.  In particular, I did not understand the title details appearing therein.  I did not know until much later that the land involved was in the name of a company, the first defendant.  The second defendant did not tell me that the land was registered in the name of a company.  I found out when I had the caveats [sic] lodged on the title to the property.

		 - - - 

		 8.	[After 15 August 1993] During these telephone calls and lunches the second defendant often asked me if I was interested in the motel project.  However I had decided that I would not become involved myself."
Mr Holmes stressed that par8 showed that the second defendant's initial approach to the plaintiff was on the basis that she become an investor in the redevelopment project, and not that she act as an agent.  Her affidavit continued:-
		 "9.	I told him it was too big for me but that maybe I could introduce some people to him who may be interested.  He seemed happy about this.

		 - - -

		 11.	I was aware that around this time there was a group of people from China who were associates of mine coming to visit Darwin to look at business opportunities particularly the importation of construction materials into Darwin."
When reading par11 Mr Holmes observed that the plaintiff understood that a defence of illegality arising from s121 of the Agents Licensing Act would be raised; see pp7-10.  Mr Abbott QC confirmed that the s121 point would be part of the Defence.  The plaintiff's affidavit continued:-
		"12.	A few days after their arrival I took the group to the second defendant's Tai Hung Tol restaurant for dinner where I introduced them to him.  He told them about his contacts and his importance in Darwin.  He also told them about his Motel project as well as his other business ideas.

		 13.	A day or so after this meeting the second defendant asked me what the group thought about the project and when I told him they were not interested he was very disappointed.

		 14.	A week or two later the second defendant rang me again and asked me to come and see him at  his office.  I went to his office where he told me he had to sell the motel property.  He said words to the effect that "The bank is putting pressure on me and I need the money".  He tried to get me interested again.  I refused and he asked me to help him find someone.

		 15.	At the time my husband and I were looking for a house.  During our discussion the second defendant suggested we could live in the house on Lot 2666 until it was sold.  He then took me to have a look at the house but after I had inspected it I told him I did not want to live there as it needed renovations done to it and that the cost would not be warranted for the short time we could live there.

		 16.	The second defendant then said to me words to the effect that "Maybe what I can do is that if you can get $1.8 million for me for the other three blocks, I will give you Lot 2666 and you can build a new home on it".  He showed me plans for renovations to the house which he already had prepared.  I said "I don't like the design" and he said words to the effect that "OK, I will knock down the old house for you."

		 17.	The second defendant always represented to me that the land was his to sell.

		 18.	I repeat my assertion that I did not know at that time that the land was in the name of a company.  I only discovered this some time later.  The second defendant never mentioned that a company was involved nor did he ever tell me that the land was tied up in a trust.  I always assumed that he had the right to do as he wished with it.

		 - - - 

		 20.	The second defendant's offer of the land as consideration for finding a investor was very attractive to me and I accepted it.

		 21.	I told the second defendant I would speak to my partner in Bangkok, Mr Zhou, about investing in the project.

		 22.	I then amended a copy of the second defendant's prospectus to delete reference to Lot 2666.

		 23.	I left Darwin on 12 September 1993 for Malaysia.  I took the altered prospectus with me.  I went from Malaysia to Bangkok arriving there on 17 September 1993.  I gave the document to Mr Zhou.
		 24.	I remained in Bangkok for three days during which I discussed the project with Zhou.  He agreed to come to Darwin with some other business associates to inspect the property.

		 - - - 

		 26.	On 14 October 1993, I returned to Darwin.  The next day Mr Zhou and a Mr Cheng arrived from Bangkok.  A couple of days later a Mr Lee, a Mr Sun and a Miss Lan arrived from China via Adelaide.

		 27.	I arranged with the second defendant to have a dinner at the Ghengis Khan where I introduced the group to him.  He told them about his plans for the motel.

		 28.	About a week later, Zhou, Cheng and I went to talk to the second defendant at his office.

		 29.	Mr Zhou told the second defendant he wanted to see all the financial information about the motel and the restaurant and an inventory of all the furniture and equipment in them.

		 30.	Two or three days later the second defendant rang and said the information was available so we went to his office again.  Mr Zhou said he would take the information away with him and study it and give the second defendant an answer.

		 31.	Mr Zhou left to return to Bangkok on 2 November 1993 without giving an answer.

		 - - - 

		 37.	Zhou then told me he was prepared to proceed.

		 - - -

		 39.	I told the second defendant that Zhou had agreed to proceed and that he would need to go to Thailand to finalise the deal as Zhou couldn't come to Darwin.  I said before he went he would need to prepare a document.  He asked me what he should put in it.  I said he would have to put in the price of $1.8 million.

		 40.	He then said words to the effect that "I can no longer do it for $1.8 million.  I need $2 million".  I said "I do not know about that.  You can try.  You will have to talk about it in Thailand".

		 41.	The second defendant then told me he would like to go on to Hong Kong.  The second defendant also asked me to arrange his hotel booking in Hong Kong for 4 days and for $50,000.00 in Hong Kong currency [said to be Aust $7000-$8000] to be ready for him when he arrived there.

		 - - -

		 44.	The next day [in Bangkok], 26 November 1993, the second defendant and I went to Zhou's office at 10am.  Discussions took place.

		 45.	The second defendant said to Zhou words to the effect that "I now need $2 million instead of $1.8 million".  I recall that Zhou was not very happy about that. 

		 46.	However, eventually Zhou agreed that he would acquire 70% of the project which was valued at $2 million.  That is, Zhou would contribute $1.4 million. I recall discussions then took place about when payments would be made.

		 47.	As part of my business, I often act as an intermediary between parties who wish to buy and sell commodities, land or businesses.  It is usual in transactions of this nature that the intermediary receives commission from both the seller, in this case the second defendant, and the buyer, in this case Zhou and the Second Defendant.  A typical rate of commission is 3%"

Mr Holmes observed that par.47 was relevant to a defence of illegality under s.121 of the Act; there would be a dispute as to whether the plaintiff was "carrying on business" in Darwin at relevant times.  The affidavit continued:-

		 48.	"During the discussion between the second defendant and Zhou, Zhou said words to the effect that "The commission should come to Cathy personally".  Zhou agreed that I should received 3% of the $2 million project value.  He agreed to pay me his share [of that commission], that is $42000.00.

		 49.	Zhou then said to the second defendant words to the effect that "You have to pay her your share" [of the commission on the $2 million project].  That share was $18000.00.  This sum represented commission on the second defendant's purchase of his then 30% share in the land and business."
As to the figures in pars46-49 Mr Holmes noted that 3% of $2 million is $60,000; 3% of $1.4 million is $42,000; and 3% of the difference between $2 million and $1.4 million (that is, $600,000) is $18,000.  He submitted that the project was valued at $2 million; Mr Zhou took 70% of it, paying $1.4 million, and paid the plaintiff a commission of 3% on that amount ($42,000).  The second defendant notionally invested $600,000 as his 30% share of the project; Mr Zhou was saying in par.49 that the second defendant was to pay a commission to the plaintiff of 3% (that is, $18,000) on that 30% share. Mr Holmes submitted that at this stage the necessary condition subsequent to the Darwin agreement between the second defendant and the plaintiff for the transfer of Lot 2666 - the obtaining of an investor as per pars16 and 20 on pp12-13 had been met.  The plaintiff's affidavit continued:-
		"50.	I did not intend to ask the second defendant to pay this sum [$18,000] as I was already getting Lot 2666 [from him] as consideration for finding an investor for him.

		 51.	After the meeting the second defendant rang someone in Darwin and said words to the effect, "Please prepare a new document".

		 52.	The document arrived by fax that same day.  Both Zhou and the second defendant signed it and I witnessed their signatures."
Mr Holmes said that the affidavit now moved to the matter critical for present purposes, the making of the agreement between the second defendant and the plaintiff of 29 November 1993 in Hong Kong, on which the plaintiff primarily relied.  The affidavit continued:-
		"53.	On 28 November 1993 the second defendant and I left Bangkok for Hong Kong on different airlines.

		 54.	At approximately 10 am on 29 November 1993, I picked the second defendant up from his hotel as I had previously arranged with him.  We went to my office at Room 101, 438 Shanghai Street, Kowloon and I introduced him to my partner Mr Ho.

		 55.	At that point Mr Ho handed to me in cash the sum of HK$50,000.00 which was the amount I had arranged at the second defendant's request [see par41] to be made available to him.  

		 56.	The second defendant said to Ho words to the effect that "I am very happy about the finance deal with Zhou for my motel.  It is all due to Cathy [the plaintiff].  She has been very helpful.  Today I have to carry out my promise to Cathy and because she is not going back to Darwin immediately, I would like to make an agreement here in Hong Kong.  When she comes back to Darwin I will transfer the land to her".

		 57.	The second defendant and I then discussed what should go in the agreement.  He said it needed to be a simple document.

		 58.	The second defendant said to me words to the effect that "Can we make the $HK50,000.00 a deposit on the land but I don't want it put in the agreement."

		 59.	Up to that point, I had assumed that the $50,000.00 was to be a loan by me to the second defendant but it was now clear that the second defendant did not wish it to be regarded as such, I reluctantly agreed to the second defendant's request, subject to his hotel account being deducted first.
		 60.	Mr Ho said words to the effect that "You must put some money in the agreement to make it proper".

		 61.	I said to the second defendant words to the effect that "Make it A$20000.00.  With the A$18000.00 Mr Zhou said you have to pay me for commission, I have to give it back to you and this evens things out".

		 62.	The second defendant accepted this arrangement.

		 63.	The second defendant then commenced writing out the details about himself for the agreement.  I wrote in the $20000.00 figure and my address. 

		 64.	We then gave the written draft to a member of my staff to type on a computer which has both English and Chinese characters and the second defendant and I went to lunch at about 1pm.

		 65.	After lunch, at about 2.30pm we returned to find that the document hadn't been completed.  While it was being finished Ho and the second defendant talked about their business.  I signed it and the Second Defendant signed it in my presence and then Mr Ho signed the document as witness to our signatures.  Annexed hereto and marked with the letter "A" is a true copy of the said agreement.  The original has been lodged with the Northern Territory Commissioner for Taxes for assessment of stamp duty."
Mr Holmes noted that various differing English-language interpretations of parts of the Chinese-language segments of this agreement of 29 November 1993 had been advanced, but submitted that this did not matter for present purposes.  The plaintiff's affidavit continued:- 
		"66.	I then handed to the second defendant the amount of HK$46,200.00 being the balance of the HK$50,000.00 less his hotel account of HK$3,800.00.[see pars 55 and 59].

		 - - -

		 69.	I do a lot of business introducing people to investors and arranging finance for commission.

		 - - -

		 77.	I again left Darwin on 25 April 1994 and went to Hong Kong.  While there I was told that the second payment from China had been made to the second defendant.  I was told this by Zhou.

		 78.	I now became very concerned for that reason and because the second defendant was always putting me off that the second defendant did not intend to honour our agreement to transfer Lot 2666 to me.

		 - - -

		 81.	 As a result of this I sought legal advice and on 6 July 1994 I caused a caveat to be registered on the title to Lot 2666."
Mr Holmes noted that although the caveat had been lodged on 6 July 1994 the defendants took no steps to remove it for several months; the Registrar General's notice under s191(V) was dated 16 February 1995.  The plaintiff's affidavit continued, as far as material:-
		"91.	On 19 January 1995 I went to Bangkok.  While there I was informed by Mr Zhou that the dispute between the Chinese interests and the second defendant in relation to his motel project had been settled and that a total of $1.88 million had been paid by them for a 90% share of the project.

		 92.	I was informed by Zhou and verily believe that originally they were to contribute $1.4 million for a 70% share [see par46].  Zhou also said to me that the second defendant was now left with only a 10% share.  I was further informed by Zhou that the extra money had been necessary to satisfy the debt owed by the second defendant to his bank."

		 - - -"
I note that I allowed pars 91 and 92 to be read, over Mr Abbott's objection.
		In her affidavit of 27 March 1995 the plaintiff dealt with the contents of Mr Power's affidavit of 24 March (see pp20-21), and elaborated on her affidavit of 21 March.  As far as material, she affirmed:-
	2.	"I refer to paragraphs 4 to 12 [of Mr Power's affidavit].  I was not aware of the document marked DNP "1" in 1993.  I did not say that I wanted an extra percentage of any commission to be passed to me.  I did not have any discussions with Mr. Power concerning commission or acting as agent for the sale of the units at Duke Street Stuart Park.  I met him when I arrived in Darwin in 1993.  In July 1993 I did not discuss the issue of marketing and the commission to be paid with Mr Power.

	5.	I then terminated the agency relationship between Your Home Realty (NT) Pty Limited and Golden Score (Australia) Pty Ltd.  Annexed hereto and marked "C" is a copy of this notice of termination.

		- - -

	7.	Prior to 1993 I lived and worked in Hong Kong.  I owned and worked for a number of companies including Golden Score Co Ltd.  Annexed hereto and marked "D" is a copy of my business card I used in 1992.  I worked in real estate sales and developments and as an intermediary between parties who wished to buy and sell land or commodities or businesses.  I have continued to work since that time in Malaysia Hong Kong and China.  After I arrived in Darwin late in 1992 I caused a Company called Golden Score (Australia) Pty Ltd to be incorporated on 8 January 1993.  Its principal business is the development of a residential unit property at Duke Street Stuart Park known as Yu Lin Gardens.

	8.	I have not worked on my own account as an agent in Darwin although I have worked for Golden Score (Australia) Pty Ltd.
	9.	In Darwin apart from the Duke Street property and Lot 2666 I have purchased with my husband our home at Charles Street and have been involved in a purchase of a house at 3 Georges Crescent Fannie Bay.  The circumstances of this purchase are set out in a Statutory Declaration I made on 16 August 1994.  Annexed hereto and marked "E" is a copy of the said Statutory Declaration." 

		(b)	The material relied on by the defendants
			(i)  The affidavit of Mr. Power at 24 March 1995
		Mr Power deposed in his affidavit of 24 March 1995 as follows, as far as material:-
		"1.	I have been with this company  [Your Home Realty (NT) Pty Ltd] since November 1992.  I have been involved as a Realtor since 1986.  I am qualified as a fully licensed Real Estate Agent.

		 2.	In early 1993, I first met Cathy Lin through an introduction made by Marlene Meier who was looking for an appropriate site for a building project.  

		 3.	We sold the 3 blocks of land [in Stuart Park] to Golden Score.  There was delayed settlement as the vendor needed time to vacate.  Settlement was therefore in around June 1993.

		 4.	In July 1993 the issue of marketing was discussed of the proposed properties.  Our company was nominated to handle future sales.  An Agency Agreement [Annexure "DNP1"] was also drawn up which subsisted until the Units were sold.

		 5.	Accordingly we were appointed by Golden Score on 10/1/95 [sic.  It is clear this date is incorrect].  Our standard Agency fee is 4% of the gross purchase price on developments.

		 - - -

		 8.	Prior to the preparation of this document, Cathy Lin stated she wanted the Agreement to reflect a 5% Agency fee.  Cathy Lin said she wanted this extra percentage to be paid to her.  
		 9.	I did not question this, but insisted on reflecting this extra percentage as a "Consultancy fee".  It was to be reflected in our books as such.

		 - - -

		 12.	Cathy Lin declined to sign this Agreement.  We had to fax a copy to Ms Meier's brother (nominated Australian Director) in West Australia who signed as a Director [of Golden Score].

		 - - -

		 14. On 3 March 1995 our services were terminated by letter, which I annex hereto marked DNP "3"."
		
	(ii)	The evidence from the Plaintiff in cross-examination
	The plaintiff was extensively cross-examined on 27 and 28 March.  Although she testified through a Cantonese/English language interpreter, I consider that in fact she understood English quite well, and could speak it to some degree; she said that she understood about 90% of it, but her English in 1992 was a "bit poor".  Sometimes she corrected the interpreter's translation; on other occasions she answered Mr Abbott directly in English.  I would have expected some competence in the English language from someone who had been involved in the real estate business in Hong Kong for about ten years, who had set up a company there in 1986, and other companies; and who had business interests in Malaysia said to be worth $1/2 million, a country in which she had formed a company with Mr Zhou.  I consider that the plaintiff has a particularly acute mind, and is clearly very experienced in real estate negotiations.  Occasionally, she displayed some heat in the witness box, but was usually cool, calm and collected.  I consider that where she could, she tailored her evidence to suit what she perceived to be her advantage.  Occasionally she became evasive - "I forget" - when pressed.  Overall, I do not consider her to be a trustworthy and reliable witness.
		Now aged 39, she had arrived in Australia in 1992.  She came for business purposes, the buying and selling of real estate for herself and her "partner" Mr Zhou Yu Lin.  In Darwin she formed a company, Golden Score (Aust) Pty. Ltd. in January 1993, in which she had a 25% shareholding.  This company bought three blocks of land at Stuart Park, for a unit development, early in 1993, for $800,000.
		As to pars 22 and 23 of her affidavit of 21 March (p.13) she explained how she had altered the prospectus so as to exclude any reference to Lot 2666, before taking it to Mr Zhou in Bangkok.  She did not tell Mr Zhou, her "partner", that she was to receive Lot 2666; she agreed that she tried to ensure that the Chinese interests knew nothing about it.  She later said that if Mr Zhou knew about it, she might not receive her commission from him.  She said at one point that obtaining Lot 2666 was not a commission for selling the other 3 blocks (see par 16,p.12), but a "fee".  I do not hold this terminology against her, as she also later said that Lot 2666 was to be given to her by the second defendant as a "gift" if she could sell the other three blocks. 
		She was cross-examined about the financial details of the investment by the overseas Chinese interests, and adhered to the account in her affidavit (see pars39-46 on p.14) that talk of $2 million only came "later", after Mr Zhou left Australia in November 1993; the initial price, as discussed in Darwin, was $1.8 million.
		She appeared to state that she was not representing either the second defendant or Mr Zhou in the East Point Road transaction, though earlier she had said that she tried to "fight" for Mr Zhou so as to hold the transaction to the initial price of $1.8 million.
		She agreed that she received a 3% commission from the overseas Chinese interests for their 70% share in the $2 million redevelopment project; she said later that she had returned this commission when she became aware that it was illegal.  She said that she had not asked the second defendant for a commission (3% of his 30% share in the $2 million project), although he had agreed in Bangkok to pay it, because of his earlier promise to give her Lot 2666.  However, she introduced a new matter which did not appear in her affidavits:  that she had not asked the second defendant for commission because she had requested that Golden Score (Aust) Pty. Ltd. be given a 10% share in the joint venture project.  Later, she said that she had discussed this 10% share with the second defendant, when discussing with him the draft agreement he was to take to Bangkok.  The 10% share, she said, was in consideration of expenses which Golden Score (Aust) Pty. Ltd. had incurred in the visit by the overseas Chinese interests in October 1993, and was to be a "bonus share".  She said that in Bangkok Mr Zhou refused this request and instead had offered her a 3% commission.  
		She was pressed repeatedly by Mr Abbott on whether she was to get Lot 2666 as a "commission", but denied it.  She did not regard herself as having "brokered" a financial package for the second defendant.
		She said that the second defendant wanted her to help him, claiming that he had no money; and that she had helped him, as a friend.  He had said that he would treat her a sister, and would give her Lot 2666 as a gift if she would help him solve his financial problems.  I should say that it is obvious that this was a commercial transaction and, as she said, she was to get Lot 2666 "if the deal is successful".
		She was taken at one point in her evidence to another company she had set up, "Golden Darwin", this related to an unrelated real estate transaction in Stuart Park, apparently in 1994, and involving other overseas Chinese interests.
		She adhered to the account she had given in par.61 of her affidavit (p.17).  She said that the figure of $20,000 in the agreement of 29 November 1993 was a "round figure", and was to offset commission owing to her by the second defendant.

Counsels' submissions
		Mr Holmes observed that the effect of a breach of a provision such as s.121 of the Act on the rights of the parties inter se, involved a difficult area of law.
		He referred to Farrow Mortgage Services Pty. Ltd. v Edgar (1993) 114 ALR 1 at pp.9-13 and 17-18, where the Federal Court discussed the question of illegality and its applicability to the issues in that appeal.  That was a very different case to the present case; it involved illegality and the application of public policy.  In this case, if the agreement of 29 November 1993 is unenforceable, it is because it falls within the words of s.121 of the Act; no question of illegality arises. 
		Mr Holmes stressed that the plaintiff's answers in cross-examination showed the looseness of the use of nomenclature by the parties, who sometimes identified themselves with their companies.  This type of evidence gave rise to questions of who was contracting on behalf of which company; this could be determined only following trial of the action.
		I accept that the question of "illegality" (as counsel put it) in terms of s.121 of the Act involves the proper construction of that provision and of the agreement of 29 November 1993.  Mr Holmes also submitted that the evidence showed that consideration had to be given to the limited territorial nature of the Act, and to the extra-territorial activities and agreements between the parties.
		On the view which I take of s.121, no question of its territorial application arises.
		Mr Holmes stressed that one matter presently in issue was whether the plaintiff was "carrying on business" as an agent at the relevant time.  To "carry on business" whilst unlicensed attracts a penalty under s.17(1) of the Act, but is not in my opinion an element in an issue under s.121; that provision would prevent an action being brought to recover a fee etc for acting as an agent in a single matter.  
		I note that for her caveatable interest the plaintiff relies (p.3) on the Hong Kong agreement of 29 November 1993, a contract in simple terms to sell Lot 2666 for $20,000.  Both Counsel discussed this agreement in terms of whether it was a "stand alone" agreement.  Mr Holmes submitted that - 
	"This is an action, on the primary case of the plaintiff, on that agreement made on that day in those terms."

Conclusions

		I do not consider, in the light of the evidence set out, that the agreement of 29 November 1993 is properly characterized as a "stand alone" agreement.  It is obvious, to my mind, on the evidence, that it represents in written form the oral agreement made in Darwin and referred to in pars 16 and 220 (p.12 and 13), and that the expressed consideration of $20,000 was not the real consideration.  It was part of the larger transaction between the plaintiff and the second defendant, and in its nature was clearly the implementation of a commission or fee for the work done by the plaintiff in arranging the sale.  I accept Mr Abbott's submission that it is clear beyond doubt on the whole of the evidence that to enforce the Hong Kong agreement of 29 November 1993 by specific performance would be to enforce an agreement for a commission, sought by s.121 of the Act.   To my mind the plaintiff's action seeking specific performance of the agreement of 29 November 1993 is properly characterized as an action to recover a fee or commission for acting as an agent for the defendants "in relation to a matter referred to in s.5(2)"  of the Act.  In short, it is an action which s.121 of the Act prevents the plaintiff from bringing, in so far as she seeks that relief.  It follows that the unenforceable agreement of 29 November 1993 cannot found a caveatable interest.
		These are the reasons for the decision of 4 April that the plaintiff has failed to show that there is a serious question to be tried on the question whether the agreement of 29 November 1993 falls with s.121 of the Act, and for the refusal of the relief sought in par1 of the respective summonses.

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