Estate agents’ claim for commission, or damages for breach of contract to appoint them as selling agents, in respect of a whole estate — Lack of precision in arrangements between parties — ‘Not really a sufficient meeting of minds between plaintiffs and defendants’ — Claim for commission admitted in relation to three blocks of vacant flats forming part of the estate, for which there was sufficient evidence establishing the agents’ entitlement — Claim for commission or damages in respect of the sale of remainder of estate failed in the absence of evidence establishing to the court’s satisfaction the existence of an overall contract
This was a
claim by Dixon Hind & Co, estate agents, of Sutton, Surrey, for commission,
or alternatively damages for breach of contract, on the resale of the Bromells
Estate, at Clapham, by the defendants, Sunley Holdings Ltd.
Paul
Batterbury (instructed by Ouvry Goodman & Co, of Sutton, Surrey) appeared
on behalf of the plaintiffs; William Poulton (instructed by Lee &
Pembertons) represented the defendants.
Giving
judgment, CROOM-JOHNSON J said: In 1980 the plaintiffs, who are a firm of
estate agents, were engaged in selling the Bromells Estate at Clapham on behalf
of the owners, City Lands Investment Corporation. They did so to the
defendants, Sunley Holdings Ltd, for what was eventually the sum of £1,207,000.
One of the unsuccessful bidders was called Metropolitan Housing Trust Ltd, whom
I shall call for shortness ‘the trust’.
The completion
of the sale to Sunleys took place on June 30 and until then the plaintiffs
were, strictly speaking, the vendors’ agents, that is to say for City Lands. At
that time the policy of Sunley Holdings was to buy the whole estate, which
consisted partly of untenanted blocks of flats and partly of tenanted blocks, the
tenants being in all probability protected under the Rent Acts from eviction.
The defendants then wanted to sell off what was vacant in order to realise a
capital sum on those particular flats, but the tenanted flats had to be kept
and managed. I have little doubt that what they wanted eventually was to get
rid of the tenanted flats one by one, either by buying the tenants out or by
waiting until they fell vacant.
This is a
claim by the plaintiffs for commission, or alternatively damages for breach of
contract on the resale of the whole or parts of the estate.
Very soon
after the defendants’ offer had been accepted by the vendors, which seems to
have been on April 30, the trust was writing to the plaintiffs (the vendors’
estate agents) saying that they were sorry that they were unsuccessful and they
were writing to inquire whether the new purchasers might be interested in
disposing of any part of the estate. That letter was dated May 2. The result of
that was a telephone conversation between Mr Anderson, a partner in the
plaintiff firm, and Mr Ray of the trust. It is right to say that at this time
there were obviously some telephone conversations between Mr Anderson and Mr
Sims, who was the agent acting for the defendants, as well as conversations
with the trust. The dates are not at all clear, but at any rate what happened
was that on May 9 Mr Ray of the trust telephoned to Mr Anderson, there having
obviously been some mention somehow that three of the blocks which were vacant
in the estate, called the Oxford and Cambridge Mansions and Kent House, might
be available for sale. Mr Anderson told Mr Ray that since the matter had only
just been raised, the proposed purchasers, that is the defendants, had given no
detailed thought to the question of the value of those three blocks. Mr Ray
said the trust was prepared to offer £260,000 for the freehold interest in
Oxford, Cambridge and Kent.
This telephone
conversation was confirmed by Mr Ray in a letter of the same date to Mr
Anderson, and saying that the trust were offering that sum for the three
blocks, subject to contract. That letter crossed with another one going from Mr
Anderson to Mr Ray, in which he sets out the effect of the position at that
time. It said:
The proposed
purchasers intend to retain ownership of the estate after its acquisition
although they will be disposing of a number of vacant units when works of
refurbishment have been carried out. In this respect, their plans are to
modernise and improve Oxford and Cambridge Mansions and Kent House as quickly
as possible after completion of the purchase and offer the vacant units for
sale on the open market.
Then comes a
sentence which is of some importance in another context:
It is likely
that my firm will be retained to deal with the continued management of the
estate and the sale of the vacant units. I have, however, spoken to the
purchasers and, although matters are in early stages, they would be prepared to
contemplate a sale of Oxford and Cambridge Mansions and Kent House in their
existing conditions, subject of course to the agreement of terms. They may also
be prepared to consider disposing of the other vacant units on the estate.
He then goes on
to say that since the sale has not been completed, discussions will have to be
postponed to some extent.
The next
letter is on May 13, which is by the plaintiffs, again Mr Anderson, to Mr Ray,
acknowledging the letter of May 9 from the trust and saying:
You will
appreciate that my firm is in a somewhat difficult position as contracts
that is to say
between City Lands and Sunleys
have not yet
been exchanged and we can, therefore, act only for the City Lands Investment
Corporation Ltd. However, we have advised our clients of your interest in
purchasing the above properties and they have no objection to us passing on
your interest to the prospective purchaser which we have done.
Then there is a
little more of that letter dealing with the possible sale of the other vacant
units of the estate.
On the same
day Mr Anderson wrote a letter to Mr Sims. The letter reads as follows, under
the heading ‘Oxford and Cambridge Mansions and Kent House’:
Following our
telephone conversation today I confirm that an offer has been received from a
housing association to purchase the above freehold properties comprising 14
flats with vacant possession and 1 tenanted in the sum of £260,000 subject to
contract. I have advised the housing association that . . . detailed
discussions can be pursued after contracts have been exchanged. I have also
mentioned to the housing association the possible sale of the other flats on
the estate with vacant possession and, although they have expressed a general
interest, no firm offers have been made.
The reason why
Mr Anderson was writing to Mr Sims and calling the trust a housing association
and not giving away its name was because if he was ever to be entitled to
obtain commission from the defendants for introducing a prospective purchaser
to them, it would be necessary to conceal the name of the would-be purchasers
so that
purchasers unless and until commission arrangements between the defendants and
the plaintiffs had been fixed.
Some time at
the very beginning of June, I think it was, the contracts were exchanged
between City Lands and the defendants. The next event which happened was that
on June 3 there was a meeting which was attended at Mr Sims’ office by Mr
Anderson and Mr David Brendon George, a partner of his. They attended at that
office because Mr Sims wished to familiarise himself in the shortest possible
time with all matters concerning the management of the estate, particularly
with a view to establishing those tenants who could be tempted out with a cash inducement.
The note which was made by Mr Anderson of this meeting continues:
He
that is Mr
Sims
confirmed
that he would reinstruct the firm
that is to say
the plaintiffs
on the basis
of 10% of the rents collected plus additional fees for Court attendances and
Rent Officer work.
The plaintiffs
had been managing the estate on behalf of City Lands for some years, and
obviously it was sensible from everybody’s point of view that they should
continue to do it for Sunleys. The note goes on:
However, he
is not prepared to commit himself about resales although, after some
discussion, his agreement was obtained to instructing us for a period of 4
weeks on a sole agency at 2% assuming he was happy with the proposals which
should be submitted to him on our sales policy.
It went on to
say that Mr Sims was keen to pursue the interest of the housing association to
buy those three vacant blocks.
On June 18
there was a letter written by the plaintiffs to Mr Sims, the author being Mr
George, to deal with the terms upon which the plaintiffs were to continue with
the management. It began:
As arranged
at our recent meeting I write to confirm the terms upon which my firm will be
pleased to continue to act as managing agents upon completion of your purchase.
Commission will be based upon 10% of gross rents collected. In addition we
shall look to you for payment of fees based upon the appropriate RICS scales
for additional professional work such as rent officer applications, court
attendances, etc.
It went on to
say that another partner, Mr Pittaway, who was responsible for the residential
sales side of the firm, would be getting in touch shortly with the plaintiffs’
proposals for the marketing and sale of the vacant flats.
On June 23 the
trust wrote to Mr Anderson setting out a firm offer, which is confirmed, to buy
Oxford, Cambridge and Kent for a total, now revised, price of £245,000. On June
26 Mr Anderson wrote, handing that on to Mr Sims. By now the name of the
so-called housing association, which was really the Metropolitan Housing Trust,
was out in the open, and it was referred to openly in this letter. Contracts
having been exchanged, it was presumably considered perfectly safe to let the
plaintiffs be acting avowedly for the resale by the defendants of some of the
property which had been transferred. On June 30 completion took place between
the original vendors and the defendants (the purchasers).
The next event
which has to be considered is a meeting which took place on July 7 between Mr
George and Mr Sims. There was a discussion, largely about management and
insurance and things of that kind. Mr George’s note contains this paragraph:
Subsales
Etc. Negotiations are in hand through us for the
subsale of Oxford and Cambridge Mansions and Kent House to the Metropolitan
Housing Trust. Sims advises that they are also having discussions with the
Metropolitan for the purchase of one or two tenanted blocks (undisclosed at
present) and if this proceeds he will of course recognise our agency.
This is the
first reference in the document to any sale of the tenanted blocks which
Sunleys had bought.
That was
followed up on July 9 by a letter from Mr George to Mr Sims, which was
initially about the management and the rents and finished up with a final
paragraph dealing with ‘Sitting Tenant Sales Etc’ and indicating that the
plaintiffs would begin discussions with a Mr Annett about sale of those flats
where there were sitting tenants.
On July 10
there was a letter from Mr Anderson to Mr Sims, again about Oxford and
Cambridge and Kent, which set out the question of commission to be paid by the
defendants to the plaintiffs for the sale of those blocks to the trust. What it
says at the beginning is:
Following our
telephone conversation yesterday
that is July 9
I am pleased
to note that negotiations are progressing satisfactorily with the Metropolitan
Housing Trust Ltd in respect of the above properties. I will be very happy to
accept the commission arrangements discussed which will total £4,237.50 plus
VAT of £635.62 resulting in a grand total of £4,873.12.
This had been
the subject, as we can see from a file note of Mr Anderson, of discussion with
Mr Sims on July 9, as is confirmed in that letter.
The story
continues. On July 12 Mr Pittaway wrote to Mr Sims. This was in relation to a
number of things, but principally to the question of the plaintiffs acting as
the defendants’ agents on the disposal of the vacant flats. It confirmed that
now that completion had taken place the plaintiffs would be acting as the
defendants’ agents in the disposal of the vacant flats as soon as certain
improvements and redecoration had been carried out. It set out suggested terms
of commission which would be payable depending on whether the plaintiffs were
the sole agents or not the sole agents. It is enough to say that from that
letter it appears that there had been nothing firm yet agreed so far as the
plaintiffs acting as agents in that connection was concerned.
The next thing
that happened was that it came about that the plaintiffs got to hear that the
trust were now negotiating to buy the entire estate from the defendants. What
had happened was this. Originally it had been, as I said, the defendants’
intention to keep the tenanted parts and manage them for the time being. But
the trust were able to get some more money, so that they were now in a position
to make a bid for the entire estate rather than simply for Oxford, Cambridge
and Kent. The result was that the defendants did sell to the trust. They sold
it at a modest loss on the sum that they had just paid for the estate
themselves, but the object of this was that if they sold to the trust, the
trust would need to incur a good deal of building work in order to refurbish
the flats, whether tenanted or untenanted, and the defendants’ holding company,
Bernard Sunley Ltd, were likely to, if not going to, get the building work from
the trust. In order to do that, and with the prospect of profits accruing to
the holding company from that work, it paid the defendants to sell at a modest
loss.
At all events,
on August 15 Mr Anderson wrote to Mr Sims noting in another context that he had
understood ‘that terms have now been agreed for the sale of the entire estate
to the Metropolitan Housing Trust Ltd’ by the defendants. Mr Sims replied on
August 20 confirming that negotiations for that were going on.
On September
11 the contract of sale of the entire estate from Sunleys to the trust for
£1,170,000 was exchanged. On September 26 the plaintiffs wrote to Mr Sims
raising the question of their commission on the sales which had taken place
since the purchase by Sunleys from City Lands. It is of course right to say
that the plaintiffs had already received their sale commission from City Lands
and Sunleys and that this now concerned the selling on. What Mr Anderson said
was:
I have looked
carefully at the circumstances surrounding the sale
that is to say
to the trust
and am
satisfied that my firm is completely justified in looking to you for payment of
a full RICS scale fee based upon the price agreed with Metropolitan Housing
Trust Ltd. My company was the effective cause of the introduction and the scale
fees provide for the payment of a full fee simply for the introduction of a
purchaser.
He then goes on
to point out that as the plaintiffs were not fully involved with all the
negotiations, he was prepared to consider a reduction in the full scale fee and
that the plaintiffs would be perfectly willing to take 1%.
The reply to
that on November 19 from Mr Sims was that the defendants did not consider that
they were under any obligation to pay a commission on the full sale price to
the trust. They thought the plaintiffs were entitled to commission on the
negotiated sale of Oxford, Cambridge and Kent, but no more. The sale of Oxford,
Cambridge and Kent, of course, was overtaken by the sale of the whole of the
estate to the trust.
Accordingly,
this claim now comes before the court, because the plaintiffs say that they are
entitled to commission on the sale of the whole estate for the £1,170,000. They
say that they are entitled as part of that to commission on the sale of Oxford,
Cambridge and Kent, which was negotiated, though it ceased to be a separate
item. They also claim that they are entitled to commission on the sale of such
other flats as were vacant when the whole estate was sold,
sales of such flats as were vacant. The defendants admit the claim for
commission on the negotiated sale of Oxford, Cambridge and Kent. On the other
hand — and there is no dispute about this — after the plaintiffs began to
manage the estate for Sunleys for a short time, they collected certain rents
which they had retained for the time being and those rents should be set off
against the commission on the Oxford, Cambridge and Kent sales. There is no
dispute about that, and the figure is an agreed figure.
The
plaintiffs’ claim for commission on the whole estate is based not on any
document, but on a telephone conversation between Mr Anderson and Mr Sims. The
date of that telephone conversation is indeterminate. It could be any date
between May 6 and 9, but for the purposes of simplicity I shall refer to it as
the telephone conversation of May 6. There is not a contemporaneous note
anywhere of the date of any such conversation. At May 6 the plaintiffs, as I
said, were acting for City Lands. They could only act as agents for the
defendants after either the exchange of contracts between the defendants and
City Lands or after completion of that sale. The plaintiffs scrupulously kept
City Lands informed that they were passing on the inquiries made by the trust
to Sunleys, so that there should be no question that they were in any way
acting contrary to the interests of their principals, City Lands. They could
not therefore at this time act as agents of the defendants. But if they were
not their agents, they could validly make a contract that they would be
appointed as agents after the exchange of contracts or completion, and if that
contract were subsequently broken, they could claim in damages from the
defendants an amount equal to what their commission would have been if they had
been appointed as estate agents to handle and negotiate the sale. The
plaintiffs say that such a contract was made in the course of this telephone
conversation on May 6, a telephone conversation which entitles them to
commission or damages for breach of contract at commission rates on the sale of
Oxford, Cambridge and Kent, on the vacant flats which were included in the
transfer of the whole estate and, by necessary implication, on the sale of the
tenanted flats which were transferred when the whole estate was sold.
Mr Anderson’s
account of the telephone conversation was this. He said:
I spoke to Mr
Sims on the telephone, and I passed to him the information that we had had an
expression of interest from the trust to buy any part of the estate which was
available. I did not of course divulge the identity of the trust. Mr Sims said
that he would retain my firm for any sales which resulted from the introduction
of the trust. Mr Sims mentioned particularly that it was the intention of the
defendants to retain the tenanted parts of the estate, but the defendant
company may well be interested in selling Oxford, Cambridge and Kent, all of
the flats in which were vacant save one, and that they may well be interested
in having a discussion to sell other vacant parts of the estate.
Mr Sims’
version of what happened was different. He cannot remember particularly the
date, but he said:
The first
time I spoke to Mr Anderson he told me that there had been an approach from a
disappointed bidder for the entire portfolio, as he described it, and he wanted
to know if we would sell Oxford, Cambridge and Kent. He asked, would we
consider a sale of those three properties?
I said that we would possibly do so, dependent, first of all, on the
price; and, secondly, on board approval from Sunley Holdings. There was no
discussion then of anything else but Oxford, Cambridge and Kent and there was
no mention at that time of any payment of commission to the plaintiffs.
It is common
ground now as a result of the evidence that the plaintiffs were never actually
retained by the defendants to offer the whole property for sale, and therefore
they would not be entitled to commission as such. Mr Anderson agreed in
cross-examination that the test of whether you are entitled to commission was
whether the agent has received instructions from that vendor to offer that
particular property for sale and that the plaintiffs never received instructions
from Sunleys to offer the whole estate for sale. What he said also was this
(and I think this has become common ground and is supported by the
correspondence), that at the time of this telephone conversation on May 6 it
was not contemplated by either the plaintiffs or by the defendants that the
estate would be offered for sale as a whole. If the plaintiffs were not
entitled to commission, because they never received instructions upon that
basis, are they entitled to damages for breach of a contract that they would be
retained and would get commission from the defendants for the sale by the
defendants to anybody introduced to them by the plaintiffs?
It seems a
difficulty in the plaintiffs’ way here that the sale of the whole property was
not in the contemplation of either party to this conversation, and in the
circumstances it is stretching contractual intent too far to say that they were
arranging to be entitled in effect to commission in the future in circumstances
which neither the plaintiffs nor the defendants were contemplating at the time.
I find that that is an insuperable obstacle in the plaintiffs’ way of setting
up the contract of May 6 as pleaded, and therefore there was no such contract
in the terms in which Mr Anderson has asked the court to find.
The plaintiffs
say that their admitted entitlement to commission for Oxford, Cambridge and
Kent arose at the same time. There is a dispute here which goes to the general
issue. The defendants say that because there was no such contract the
entitlement to Oxford, Cambridge and Kent did not arise in May, but arose on
July 9 and not before. To repeat what happened on July 9, there was the meeting
between Mr Anderson and Mr Sims at which the actual figure of £4,873.12 was
agreed between them as being the commission on those sales.
It has to be
remembered, going back to the plaintiffs’ contention regarding May 6, that when
Mr Anderson was talking to Mr Ray of the trust on the telephone on May 9 and
was dealing with the possibility of the trust’s buying Oxford, Cambridge and
Kent from the prospective purchasers of the estate, Mr Anderson had said to Mr
Ray that since the matter had only just been raised the proposed purchasers,
Sunleys, had given no detailed thought to the question of value. That is
another reason for saying that there could not have been any firm commitment by
the defendants to the plaintiffs for commission on Oxford, Cambridge and Kent
as early as May. There was, as has been pointed out in evidence, some doubt as
to who in the circumstances would be paying the commission on the figure which
was being offered for those three blocks, and that would have to be sorted out
in order to see how much money the defendants were going to get in the end from
the people offering the money.
I do not think
that there was a discussion of commission as such on May 6. I am quite
satisfied that there must have been some discussion about Oxford, Cambridge and
Kent. When the plaintiffs were subsequently concealing from the defendants
(quite properly) the identity of the trust as the people who were interested in
the purchase of these buildings, they were doing it with a view to making sure
that they would be entitled to commission for introducing that purchaser, but I
think the introduction at that stage was all in the context of a purchase of
Oxford, Cambridge and Kent and not in the context of a purchase of the whole
estate. As I pointed out, after the contracts were exchanged when the Oxford,
Cambridge and Kent purchase was given the go-ahead, the identity of the trust
was revealed to the defendants. On the other hand, I do not think that Mr Sims
is right either in saying July 9 was the first occasion upon which the
plaintiffs became entitled to any commission for Oxford, Cambridge and Kent. I
think that after the exchange of contracts the behaviour of both the plaintiffs
and the defendants justifies the inference that the plaintiffs were now
retained as the defendants’ agents for the purpose, and this purpose only, of
the sale of Oxford, Cambridge and Kent to the trust and that therefore they
were entitled before July 9 to some commission, either on terms to be agreed,
as they subsequently were on July 9, or to a reasonable sum.
The next
question which arises is: what was the entitlement of the plaintiffs to commission
on the sale of vacant flats in the estate?
Since the vacant flats were not sold piecemeal or individually at all,
but were swallowed up in the sale of the entire estate, the plaintiffs
originally say — this is one limb of their argument — that this was covered by
the agreement on May 6 on the telephone. I have already referred to the
expression in the letter of May 9 from Mr Anderson to Mr Ray, in which he is
saying: ‘It is likely that my firm will be retained to deal with the continued
management of the estate and the sale of the vacant units.’ That is wholly inconsistent with the
plaintiffs already being entitled to be retained by the defendants for the sale
of the vacant units. It clearly also shows that it contemplated piecemeal
sales.
The alternative
to the entitlement alleged to arise on May 6 is put forward by the plaintiffs
in their statement of claim as having arisen on June 3. Mr Anderson says that
entitlement was then agreed. He said: ‘For the sale of the vacant flats it was
agreed on June 3 that we would be the sole agents.’ The note of the interview on June 3 which was
made by Mr Anderson does not, I think, support this. After dealing with the
management matters, the note, which I read before, indicated that Mr Sims was
not prepared to commit himself about
considered were of vacant premises. It says: ‘. . . after some discussion, his
agreement was obtained to instructing us for a period of 4 weeks on a sole agency
at 2% assuming he was happy with the proposals which should be submitted to him
on our sales policy.’ What that meant
was this: the plaintiffs were going to put forward to the defendants the way in
which they would go about selling the vacant premises and if the defendants
were happy with those proposals, they were then prepared to instruct the
plaintiffs for an initial period of four weeks on a sole agency basis to carry
that out. That was Mr Sims’ description of the way in which the matter was on
June 3, and I think that Mr Anderson’s own note supports Mr Sims’ version.
Mr George, the
partner of Mr Anderson, was also present on this occasion. His letter of June
18 to Mr Sims, referring back to the meeting on the 3rd and from which I have
quoted a part only, ends in this way:
Mr Anderson
has spoken to Mr Geoffrey Pittaway, the partner responsible for the residential
sales side of the firm, and you will be hearing from him shortly with our
proposals for the marketing and sale of the vacant flats.
So far as what
was said on June 3 is concerned, his evidence to me was that it was the first
occasion they had met Mr Sims.
Mr Sims
wanted working knowledge of the estate as soon as possible, and I knew the
estate intimately. Mr Sims was keen that we knew that he would take advantage
of my knowledge by instructing us to manage when he had completed the purchase.
The intention was that the vacant properties should be sold when refurbishment
was done. The plaintiffs were to be the selling agents and were to begin with
those which were actually vacant. The question of the sale of the entire estate
did not arise at that time.
My reading of
the evidence and my consideration of witnesses indicates that on June 3 there
was not a firm agreement in relation to the vacant premises. It may be that
when the proposals for the marketing and sale of the vacant flats had been
accepted by Mr Sims, then there would have been a retainer by the defendants of
the plaintiffs for that purpose, which would have entitled them to commission in
the strict sense. But I do not find that that ever happened, and I do not find
that there was either a contract binding and made on June 3 between the
plaintiffs and the defendants that the plaintiffs would be appointed in certain
circumstances to the position of agents. I think the defendants always had the
opportunity, if they wished to take it, of not doing so, depending upon what
they thought of the plaintiffs’ proposal.
There remains
the last matter, which is what is the position of the properties where there
were sitting tenants? For this the
plaintiffs must say that they were entitled to rely on a contract made on May 6
or thereabouts for commission or an entitlement to commission in the future
because they had introduced the trust to the defendants. The sitting tenants
were first mentioned, I think, on July 7 in the note which I have read of Mr
George’s interview with Mr Sims. The plaintiffs rely upon this as indicating
that there had been an agreement, as they say, on May 6, that Mr Sims was saying
if the trust purchase one or two tenanted blocks he (Mr Sims) ‘will of course
recognise our agency’. Mr George said in his evidence that those were the words
he dictated when he got back from the interview with Mr Sims and that he took
it to mean: ‘If it resulted from our introduction he would recognise us in
financial terms.’ He said that it was a
remark made in passing, because the meeting had primarily been called for
management purposes. He understood it to mean that the plaintiffs would get
commission in a generally accepted way, but it was not spelled out in detail at
that meeting.
Mr Sims, on
the contrary, says he never mentioned it. His evidence was that it was a purely
management meeting. There was no reference at all to subsales, and if he had used
the words which Mr George says he used, they did not bear the meaning which Mr
George put upon them. He said: ‘They could mean that we would pay some
commission to the plaintiffs, but they could mean also that the defendants had
recognised that the plaintiffs should do the management for the new purchasers
or act for the trust on any sales.’
I accept Mr
George’s evidence that this matter got mentioned. I also think that the natural
meaning of the words which he remembered and noted when he got back to the
office, ‘recognise our agency’, is recognition in a financial sense. The
trouble is of course that this can only be an indication, as the plaintiffs
ask, that there had already been an entitlement in these circumstances which
had been agreed upon as long ago as May, which was a time when selling off the
tenanted parts of the property was never in anybody’s contemplation. My view
about this is that the reference on July 7, which did happen, was too vague a
reference to carry the inference which the plaintiffs seek to draw from it.
I think a lot
of the trouble here has been this. The relationship between the plaintiffs and
the defendants was far too imprecise. Mr Sims when he gave his evidence struck
me as a classic example of somebody who uses words — not intentionally — to
disguise his thoughts. I had the greatest difficulty throughout his evidence in
understanding what it was he was trying to say, because he goes in for using
what I can only describe unkindly as estate agents’ jargon instead of thinking
clearly what it is that he wants to say and expressing himself appropriately.
He is not somebody who apparently is good at or gives himself to writing
letters. When he does, as one can see from the correspondence, he can express
himself perfectly well and quite clearly, but when he is doing it by word of
mouth I think that the imprecision is really quite extraordinary. If anybody
wanted to get a clear picture of what his obligations were going to be from him
in the course of these negotiations it should have been as a result of a direct
question: ‘Are we going to get commission, and, if so, when and why?’ But that does not seem to have been done, and
the result is that there has not really been a sufficient meeting of minds
between the plaintiffs and the defendants on these things. Even in the case of
Oxford, Cambridge and Kent one can only say that the appointment of the
plaintiffs to act as the defendants’ agents arose by conduct rather than by
word of mouth once the contracts had been exchanged for the sale of the
property to the defendants. I think there has been a fruitful source of muddle
and misunderstanding here, and the result of it, I am afraid, is that the
plaintiffs have not satisfied me that there was an overall contract entitling
them to commission arising out of their introduction of the trust in May. There
is no entitlement to them for commission for anything except the admitted
entitlement in respect of Oxford, Cambridge and Kent.
In those
circumstances the action fails.
