Evans v Tony de Jong Properties (7937/09) [2012] ZAKZPHC 25 (24 April 2012)

Evans v Tony de Jong Properties (7937/09) [2012] ZAKZPHC 25 (24 April 2012)

The court found that the plaintiff did not have a sole mandate in respect of any of the trust's properties and that any misrepresentation, if made, could only have related to one property (Sugar Haven) and was not operative at the time of the commission-sharing agreement. By November 2008, the defendant could not have reasonably believed the plaintiff held a sole mandate, given subsequent mandates and direct negotiations with the trust. The defendant failed to discharge the onus of proving that any misrepresentation induced the agreement or that the plaintiff repudiated the contract. The commission split was explained by referral and industry practice, not by reliance on a sole mandate....

Citation
[2012] ZAKZPHC 25
Parties
Plaintiff: Glyn Evans; Defendant: Tony de Jong Properties
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
24 April 2012
Case Number
7937/09
Procedural Posture
Civil Trial / Final Judgment
Outcome
Judgment for the plaintiff.
Judges
Koen
Legal Topics
Estate Agents Commission, Contractual Misrepresentation, Repudiation, Oral and Written Agreements
Commercial and Corporate Estate Agents Commission Contractual Misrepresentation Repudiation Oral and Written Agreements

Case Brief

Summary, issues, holding and outcome

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Parties

Glyn Evans

Plaintiff

Tony de Jong Properties

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff is entitled to payment of half the estate agent's commission from the sale of the trust's properties to the Department of Land Affairs.
  2. 2 Whether the defendant was induced to enter the commission-sharing agreement by a misrepresentation regarding a sole mandate.
  3. 3 Whether the defendant was entitled to cancel the agreement based on alleged misrepresentation or repudiation by the plaintiff.

Ratio Decidendi

The court found that the plaintiff did not have a sole mandate in respect of any of the trust's properties and that any misrepresentation, if made, could only have related to one property (Sugar Haven) and was not operative at the time of the commission-sharing agreement. By November 2008, the defendant could not have reasonably believed the plaintiff held a sole mandate, given subsequent mandates and direct negotiations with the trust. The defendant failed to discharge the onus of proving that any misrepresentation induced the agreement or that the plaintiff repudiated the contract. The commission split was explained by referral and industry practice, not by reliance on a sole mandate....

Court Disposition

Judgment for the plaintiff.

Orders

  • The defendant is ordered to pay the plaintiff the sum of R690,700.90.
  • Interest at the rate of 15.5% per annum a tempora morae from date of demand to date of payment.