Markson v Cutler & anor [2007] NSWSC 1515

Markson v Cutler & anor [2007] NSWSC 1515

The purported acceptance of a 5% deposit by the agent was without authority and contrary to instructions; real estate agents have neither express nor ostensible authority to bind vendors to such terms. Promissory estoppel does not apply as the Cutlers did not induce the plaintiff's assumption. The deposit is to be returned under Conveyancing Act s 55(2A), and the agent breached duties by failing to elicit best offers and to obey instructions, resulting only in nominal damages. Vameba is ordered to indemnify the purchaser in respect of costs due to its conduct being the cause of litigation.

Jurisdiction
Australia
Judgment Date
21 December 2007
Procedural Posture
Civil / Judgment
Outcome
Plaintiff succeeds in part on return of deposit; specific performance denied; cross-claim against Vameba upheld in nominal damages; costs orders as indicated.
Legal Topics
['deposit Less Than 10%' 'real Estate Agent Authority' 'duties to Principal' 'promissory Estoppel' 'relief Against Forfeiture' 'costs' 'cross Claim']
['conveyancing' 'agency' 'equity'] ['deposit Less Than 10%' 'real Estate Agent Authority' 'duties to Principal' 'promissory Estoppel' 'relief Against Forfeiture' 'costs' 'cross Claim']

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Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 ['Whether deposit less than 10% was accepted' 'Whether the agent was authorised to accept less than 10% deposit' 'Whether agent fulfilled duties to communicate relevant information and to obey instructions' 'Application of promissory estoppel' 'Relief against forfeiture under Conveyancing Act s 55(2A)' "Assessment of agent's breach and damages" 'Responsibility for litigation and indemnity for costs']

Ratio Decidendi

The purported acceptance of a 5% deposit by the agent was without authority and contrary to instructions; real estate agents have neither express nor ostensible authority to bind vendors to such terms. Promissory estoppel does not apply as the Cutlers did not induce the plaintiff's assumption. The deposit is to be returned under Conveyancing Act s 55(2A), and the agent breached duties by failing to elicit best offers and to obey instructions, resulting only in nominal damages. Vameba is ordered to indemnify the purchaser in respect of costs due to its conduct being the cause of litigation.

Court Disposition

Plaintiff succeeds in part on return of deposit; specific performance denied; cross-claim against Vameba upheld in nominal damages; costs orders as indicated.

Orders

  • ['Deposit of $255,000 and all interest accrued thereon to be repaid by defendants to plaintiff' 'Amended Statement of Claim otherwise dismissed' 'Cutlers validly terminated contract' 'Plaintiff to withdraw caveat AD078920 by 21 January 2008' 'Liberty to apply for any further order regarding caveat AD078920'...