Self-represented sellers who were ordered to pay Ray White Surfers Paradise a second commission on the sale of their home under an “unfairly drafted” exclusive agency agreement, may take their dispute to the Supreme Court.

The agent had shown groups of potential buyers through – including someone with the same surname as the ultimate buyer – and conducted an auction. The home was then sold by another agency during the exclusivity period.

Mr & Mrs Abdul’s understanding of the agreement was that they would only have to pay Ray White for the marketing expenses of $14,000. Moreover, they were disappointed with Ray White’s efforts, accusing them of having “subverted” the sale by suggesting buyers could pick the home up for “the low two millions” when they had a valuation at least one million higher.

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The Southport District Court – on a summary judgment application to which the Abduls had come unprepared, unrepresented and requesting an adjournment – ruled they had no reasonable defence and ordered they pay $52,000 (commission less marketing expenses that Ray White agreed to refund) plus interest and costs.

However delivering somewhat of a sting from the tail end of its judgment, the court “stayed” the payment order to allow Mr & Mrs Abdul to issue separate proceedings to air their grievances against the agency.

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Referring to clause 2.1 of the form 22a REIQ terms for an exclusive agency, his honour said: “the condition is not fairly drafted from the point of view of alerting someone who does not read it carefully to the extent of his or her liability to pay commission.”

“Only by recourse to 2.2 does one appreciate that ‘Relevant Person’ means anyone in the world and that the agent gets commission …even if the agent has done nothing to bring about a sale”.

Orchid Avenue Realty t/as Ray White Real Estate v Abdul [2011] QDC 47, published 19 April 2011


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