144 TRUSTEES LIMITED v MIKE PERO REAL ESTATE LIMITED [2018] NZHC 3197

144 TRUSTEES LIMITED v MIKE PERO REAL ESTATE LIMITED [2018] NZHC 3197

Applicant established a genuine and substantial dispute under s 290(4)(a): contemporaneous communications support an arguable renunciation by the agent effective midday 17 April 2018 and arguable acceptance by the vendor, and it is at least arguable that a repudiating agent cannot enforce commission rights thereafter; accordingly the statutory demand must be set aside.

Citation
[2018] NZHC 3197
Parties
Applicant (vendor): 144 Trustees Limited; Respondent (real Estate Agent): Mike Pero Real Estate Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 December 2018
Procedural Posture
Statutory Demand Setting‑aside (s 290 Companies Act 1993) / Hearing and Judgment on Application to Set Aside Statutory Demand
Outcome
Statutory demand set aside on grounds of genuine and substantial dispute as to debt and entitlement to commission.
Legal Topics
Statutory Demand, Set Aside, Agency Renunciation, Commission Entitlement, Repudiation Vs Cancellation, Set‑off
Company Law Contract Law Real Estate Law Civil Procedure Statutory Demand Set Aside Agency Renunciation Commission Entitlement +2 more

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Parties

144 Trustees Limited

Applicant (vendor)

Mike Pero Real Estate Limited

Respondent (real Estate Agent)

Procedural Posture

Statutory Demand Setting‑aside (s 290 Companies Act 1993) / Hearing and Judgment on Application to Set Aside Statutory Demand

Legal Issues

  1. 1 Whether there is a genuine and substantial dispute under s 290(4)(a) as to the debt claimed by the agent
  2. 2 Whether the agency agreement was renounced/terminated by the agent prior to the sale
  3. 3 Whether the agent retained an entitlement to commission after renunciation or termination pursuant to the agency terms (cl 5.1.3)

Ratio Decidendi

Applicant established a genuine and substantial dispute under s 290(4)(a): contemporaneous communications support an arguable renunciation by the agent effective midday 17 April 2018 and arguable acceptance by the vendor, and it is at least arguable that a repudiating agent cannot enforce commission rights thereafter; accordingly the statutory demand must be set aside.

Court Disposition

Statutory demand set aside on grounds of genuine and substantial dispute as to debt and entitlement to commission.

Orders

  • The statutory demand issued by the respondent to the applicant on 22 May 2018 is set aside.
  • The respondent is to pay the costs of and incidental to this application on a 2B basis together with disbursements to be fixed by the Registrar.