Chana Scotcher Realty Pty Ltd v Fawkes & Duivenvoorde [2003] NSWLC 5

Chana Scotcher Realty Pty Ltd v Fawkes & Duivenvoorde [2003] NSWLC 5

The plaintiff was not entitled to commission under clause 8 because its actions on 21 August 1999 and 21 October 2000 were not the effective cause of the sale; the purchasers showed no interest after those inspections and the effective cause was the marketing and work of Burns & Burns. Although clause 14, read literally, appeared to support the plaintiff, such a reading would produce absurd results, so a term was implied that the introduction must be causative of the subsequent purchase. The plaintiff could not satisfy that implied term. The defendants therefore succeeded against the plaintiff, the third parties succeeded on the Third Party Notice, and the plaintiff was ordered to bear...

Jurisdiction
Australia
Judgment Date
06 March 2002
Procedural Posture
Civil Claim for Real Estate Agent Commission With Third Party Claim for Contribution or Indemnity / Reasons for Decision After Hearing
Outcome
Verdict for the defendants on the plaintiff's claim; verdict for the third parties on the defendants' third party claim; plaintiff ordered to pay the defendants' costs including the third party costs payable by the defendants.
Legal Topics
['estate Agent Commission' 'effective Cause of Sale' 'exclusive Agency Agreement' 'implied Terms' 'third Party Proceedings' 'bullock Order']
['contract' 'agency' 'real Property' 'civil Procedure' 'costs'] ['estate Agent Commission' 'effective Cause of Sale' 'exclusive Agency Agreement' 'implied Terms' 'third Party Proceedings' 'bullock Order']

Case Brief

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Procedural Posture

Civil Claim for Real Estate Agent Commission With Third Party Claim for Contribution or Indemnity / Reasons for Decision After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff estate agent was entitled to commission under clause 8 of the agency agreement on the basis that it effectively introduced the purchasers to the defendants or the property.' 'Whether the plaintiff was entitled to commission under clause 14 of the exclusive agency agreement because the purchasers were introduced to the property during the exclusive agency period and subsequently purchased it.' 'Whether a term should be implied into clause 14 requiring the introduction to be causative of the subsequent purchase.' "What costs orders should be made in the plaintiff's claim and the defendants' third party proceedings."]

Ratio Decidendi

The plaintiff was not entitled to commission under clause 8 because its actions on 21 August 1999 and 21 October 2000 were not the effective cause of the sale; the purchasers showed no interest after those inspections and the effective cause was the marketing and work of Burns & Burns. Although clause 14, read literally, appeared to support the plaintiff, such a reading would produce absurd results, so a term was implied that the introduction must be causative of the subsequent purchase. The plaintiff could not satisfy that implied term. The defendants therefore succeeded against the plaintiff, the third parties succeeded on the Third Party Notice, and the plaintiff was ordered to bear...

Court Disposition

Verdict for the defendants on the plaintiff's claim; verdict for the third parties on the defendants' third party claim; plaintiff ordered to pay the defendants' costs including the third party costs payable by the defendants.

Orders

  • ['In the claim by the plaintiff against the defendant there will be a verdict for the defendant.' "The plaintiff will be ordered to pay the defendant's costs and disbursements of that action." 'In the claim by the defendant against the third party there will be a verdict for the third party.' 'In relation to the...