Claim for commission — Counterclaim for breach of duty — Alleged failure to inform vendor of potential purchaser — Belief that higher price could have been obtained — Claim allowed and counterclaim dismissed
In 1988 the defendant put his property, Rush Manor, Wallingford, Oxon, on the market. By an agreement with the plaintiff estate agents the defendant agreed to pay a 3% commission (shared between joint agents), plus expenses, on the price paid by any person introduced to the defendant by the plaintiffs who should purchase the property. In March 1989 a Mr Potter was introduced who later that year purchased the property for £925,000. The defendant admitted that Mr Potter was introduced by the plaintiffs but declined to pay the plaintiffs their share of the commission of £18,615.63 and expenses of £10,908.85. The defendant counterclaimed, contending that the plaintiffs failed to advertise the property in Country Life on a specified date as instructed and failed to inform the defendant in July 1989 that Mr Potter was interested in the property. As a consequence the plaintiffs first negotiated a sale for £900,000 with a Mr Pither before negotiating with Mr Potter; had the plaintiffs realised their mistake earlier, a sale to Mr Potter at £950,000 could have been achieved.
Held The plaintiffs’ claim was allowed and the defendant’s counterclaim dismissed.
The defendant’s assertion that a higher figure could have been obtained was fanciful. The plaintiffs owed a duty to act with reasonable care and skill. They had not made any culpable mistakes and the evidence showed that they had informed the defendant of Mr Potter’s interest on a number of occasions. Mr Potter had first offered £805,000 and by July 10 1989, when Mr Pither was well and truly on the scene, would not increase his bid and merely wanted to be kept informed. There were few bidders for the property and it was doubtful if a higher price could have been obtained. The plaintiffs had discharged their duty of care and skill.
Dunton Properties Ltd v Coles, Knapp & Kennedy Ltd (1959) 174 EG 723 applied.
David Jeremy (instructed by Corbould Rigby & Co) appeared for the plaintiffs; and Alan Steynor (instructed by Lewis Silkin) appeared for the defendant.
