Century 21 West at Warner conducted Peter and Julie Bartlett through the Cashmere home in February 2014. On 12 February, it presented a signed offer to owners Jason Lewis and Silvana Piccirillo which was subject to the buyers conducting satisfactory electrical, air-conditioning and gas inspections within 14 days.

Sellers must pay commissionThe sellers’ solicitors suggested a variation to the special condition which was agreed by the buyers on 14 February.

Just after midnight that Friday – moments after the expiration of the agent’s written appointment – the sellers notified Century it was terminating its engagement.

Nine days on, the sellers signed a new contract to sell to the same buyers on the same terms through a different agent, but only after Century had warned them of double commission becoming payable in such circumstances.

When that sale settled at the end of March, Century naturally enough claimed it had “introduced” the Bartletts and were entitled to the agreed $20.5k comm on the house sale regardless of when the contract was entered into.

The sellers contested that assertion, arguing there was “insufficient correlation” between the contract Century presented and the one eventually settled, even though the buyers were the same.

But senior member Jane Stilgoe in the Queensland Civil and Administrative Tribunal noted that Australia’s High Court decided as long ago as 1977 that the proper test for measuring commission entitlement is whether Century was “the effective cause of the introduction of the purchaser which resulted in a sale” and not the nexus between the agent and the buyers signing on the dotted line.

“I am satisfied that Century did introduce the buyers and therefore, it is entitled to its commission.” It was irrelevant, she wrote, that the sellers had incurred the “expense and trouble of engaging another agent”.

Lewis and Piccirillo further contended Century hadn’t made any “introduction” because it came through an advertising campaign that was paid for by them.

Not so, ruled judge Stilgoe. “The agent had found the buyers through its own efforts – by advertising and holding open houses”.

Lewis and Piccirillo were ordered to pay the commission in accordance with Century’s appointment.

West Property Solutions t/as Century 21 West Property Group v Lewis & Anor (No 2) [2015] QCATA 066 Senior Member Stilgoe OAM 18/05/2015

 


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