The claimant estate agents sought payment of its commission. The defendant appealed refusal of his request for the claim to be struck out. The agency said that the agency’s standard terms applied under which commission was payable on exchange. The defendant said this had been varied so that commission was payable on completion. Contracts had been exchanged but the purchaser had rescinded the contract for misrepresentation.
Held: The judge should have decided the issues of law and construction that were canvassed before him in relation to all the grounds of claim. He had the material on which to decide those issues and he had heard argument on them from Counsel lasting half a day. The court would therefore decide the issue itself.
The contract was voidable, and once avoided was void ab initio, and therefore on the basis the commission was not payable.
However the court could imply into the contract a requirement that the vendor should not make a faudulent misrepresentation which might lead to such a conclusion. The case should go forward to see whether any damages might flow from a breach if proved of that clause.
Swift J
[2007] EWHC 2658 (QB)
Bailii
England and Wales
Citing:
Cited – ICI Chemicals and Polymers Ltd v TTE Training Ltd CA 13-Jun-2007
The Defendant had applied for summary judgment under CPR Part 24. One argument was a short point of construction. The Judge suggested the parties agree that he should decide the point as a preliminary issue. They were unwilling so he proceeded on . .
Cited – Fowler v Bratt CA 1950
the plaintiff, a house agent, was instructed by the defendant to find a purchaser of his house and agreed to pay a commission on the price. Subsequently the defendant decided not to go through with the sale and the plaintiff brought proceedings for . .
Cited – Peter Long and Partners v Burns CA 1956
The estate agency agreement at issue said that commission was payable on the agents ‘introducing a person ready, willing and able to enter into a binding contract to purchase’. The purchaser entered into the contract, but then resiled after . .
Cited – Midgeley Estates Ltd v Hands 1952
In the absence of some other clear expression of intent, the intention of the estate agent and vendor when entering into an agreement concerning the sale of a property is likely to be that the commission stipulated for should be payable only in the . .
Cited – Luxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
Cited – Blake and Co. v Sohn 1969
The defendant had falsely represented to their estate agents that they had been in undisputed exclusive possession of part of the land to be sold for 20 years and were able to prove title for the land. In fact, there was a long running dispute about . .
Lists of cited by and citing cases may be incomplete.
Contract
Updated: 10 January 2022; Ref: scu.261919
