The High Court has this month confirmed the long standing principle of Real Estate Agents entitlement to commissions on the sale of property when a Contract becomes unconditional.
In CBRE (Agency) Limited v Martelli McKadam Solicitors Nominee Company Limited [2014] NZHC 805 (16 April 2014) the solicitors for the Vendor were also acting for the Mortgagees and required that the deposit be paid directly into their trust account. When the sale was settled they refused to pay the commission due to the Agent on the basis that there was no completed Contract with the solicitors of the Mortgagees entitling the Agent to be paid. The Court disagreed finding that the Contract was with the Vendor directly and part performed by the solicitors and the Agent and therefore the Agent was entitled to judgment. The Court found that the agreement to have the deposit paid to the solicitors represented a “substantial watering down of the Agent’s position,” with no ability to deduct the commission from the deposit and no replacement advantages. The Court went on to find that there was no reason why the Agent would be expected to put the deposit beyond its reach without legal redress.
This case shows the importance of clearly drawn Agreements with arrangements for deposits and commissions to be carefully considered.
All parties including Real Estate Agents are advised to make detailed enquiries and obtain legal advice prior to entering into any such arrangements. Farry and Co. are experts in this area and can advise you in all aspects in relation to conveyancing and commercial transactions.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:
Michael Nidd
03 477 8870 or 09 379 0055
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.