Estate agents — Claim by agents for purchaser to commission on purchase of house in Hampstead — Claim disputed by purchaser who alleged breach of duty by agents disentitling them to commission — Conflict of evidence — Basic issue for judge was whom to believe — Plaintiff agents claimed commission at 2 1/2 % on purchase price of £576,500 — Purchaser alleged that he was incorrectly informed by the agents of a competing offer for the house of £550,000; that this offer was said to have been made by a person who was a respected property dealer in the Hampstead area; that the agents had told him that the house could be resold for a substantial profit; and that the agents had given him no advice as to the value of the house — After reviewing the evidence in detail the judge preferred the evidence of the plaintiffs to that of the defendant, ‘a businessman of limited scruples’ with a ‘somewhat devious approach to his business affairs’ — In particular, the judge accepted the evidence of the plaintiffs that the final negotiations leading to the purchase price were conducted face to face between the defendant and the vendor in person, although in the presence of the agents on both sides — As to the defendant’s complaints against the plaintiffs, the judge rejected them all — The plaintiffs had genuinely believed that there was a competing offer of £550,000 — The alleged mention of a ‘respected property dealer’ was not accepted nor was the allegation that the defendant had been assured of a resale at a substantial profit — As to advice on value, the defendant had not asked for it and had formed his own view of the price at which he could purchase with advantage — Judgment for plaintiffs for commission of £16,574.37 — Observations by judge on an arrangement between plaintiffs and vendor’s agents in regard to commission
No cases are
referred to in this report.
In this action
the plaintiffs, Druce Investments Ltd, claimed commission of £16,574.37, in
respect of the purchase of 5 Whitelodge Close, London N2, for the defendant, Mr
J L Thaker. The defendant counterclaimed in respect of alleged breach of duty
by the plaintiffs.
P J Martin
(instructed by Beller Needleman) appeared on behalf of the plaintiffs; M R
Dencer (instructed by Hughes Watton & Co) represented the defendant.
Giving
judgment, KENNETH JONES J said: This case centres on a dwelling-house, 5
Whitelodge Close, London N2, which in fact is just off The Bishop’s Avenue. It
is a house which today can fairly be described as falling within the £1m
bracket. It is, therefore, a large and luxurious house. The plaintiffs’ claim
is brought as estate agents, and they allege that at the time of the purchase
of this house by the defendant they acted as his agent and in so doing earned
an agreed commission which works out at £16,574.37. By his defence and
counterclaim, Mr Thaker, to put it quite shortly, alleges that the plaintiffs
were in breach of their contractual duty to exercise professional skill and
care in acting for him and for that reason are not entitled to recover their
commission. Indeed, he goes on to allege that, as a result of that breach, he
has suffered damage and is entitled to be compensated for such damage by the
plaintiffs.
The undisputed
facts are as follows. As to the persons involved, first of all Mr Thaker. He,
as I understand it, came to this country from India, certainly he is Indian in
origin, and told me that he had carried on business in this country for the
last 12-15 years. He told me that in 1984 — and, for all I know, today — he was
a wealthy man, able to call upon sums of money of the order of £1m. He is a
businessman dealing, I believe, in commodities and certainly gives all the
appearances of success. He drives two Rolls-Royces and a Porsche motor car. He
is now married. His wife was called as a witness, although at the time with
which I am concerned she was not his wife; she was — I do not know whether it
is the appropriate expression — his fiancee. In other words, the relationship
was such that they were to be married as soon as she was free to do so. So much
for Mr Thaker, the defendant.
The plaintiffs
are a firm of estate agents in Hampstead, a firm of high standing and good
repute. The particular employee of theirs involved in these matters was a Mr
Paul Schneiderman, whose job was that of a negotiator. The owner of this large
house (and the vendor) was a Mr Taire, a Nigerian, who was about to return to
Nigeria. His agents were Garrard Smith & Partners, and the particular
employee of theirs concerned in these matters was a Mr Adrian Levy.
What happened
in outline was that on May 22 1984 Mr Schneiderman spoke to Mr Thaker on the
phone and told him that this property had come on to the market. As a result of
that telephone call, later in the day a meeting took place at the house itself.
There were present in the house Mr Thaker and his ‘wife’, if I may so refer to
her, Mr Schneiderman, Mr Taire and Mr Levy. At that meeting, Mr Thaker agreed
to purchase the house for £576,500. Contracts had to be exchanged quickly. They
were exchanged on the following day, May 23, Mr Thaker appearing as the
purchaser. The property was ultimately conveyed not to Mr Thaker but to one of
his companies, a company which was wholly owned, he told me, by him. Completion
took place — I believe the date was June 28, at all events about a month after
the contract had been entered into.
The complaints
made by Mr Thaker against the plaintiffs arise from some four allegations.
First, he alleges that he was told that there was a competing offer for this
house of £550,000. He was told that by Mr Schneiderman. Second, he alleges that
he was told by Mr Schneiderman that that offer had been made by a man, Ash
Tanden. He is, as I understand it, also Indian in origin and was described by
Mr Thaker as being a ‘respected property dealer in the Hampstead area’. Mr
Schneiderman, I think, was reluctant to accept unreservedly the word
‘respected’. The third allegation founding complaints by Mr Thaker was that he
had been told by Mr Schneiderman that the property could be resold for a
substantial profit. Indeed, in his evidence he went so far as to suggest that
Mr Schneiderman had told him that he (Mr Schneiderman) had a customer who was
prepared to buy the property at a substantial profit. Fourth, he alleges, again
as a matter of complaint, that Mr Schneiderman gave him no advice as to the
value of this house.
Going back to
the first two allegations, I should explain that they become matters of
complaint, at least in the defendant’s mind, because he believes that although
an offer had been made by this man Tanden it was not of the order of £550,000
but of the order of
whether this competing offer had come from this man Tanden, nor is there any
evidence that the competing offer from whoever it came was an offer of only
£500,000. Unless the plaintiff can satisfy me of those four allegations of
fact, then Mr Dencer concedes that his claim must fail.
There has been
on the evidence considerable dispute as to the details of what has happened.
The basic issue in the case can be reduced to this: whom do I believe — Mr
Thaker or Mr Schneiderman? Their
versions are irreconcilable. Mr Dencer, with complete frankness, has conceded
that his case must depend upon the resolution of that basic conflict in favour of
his client. Perhaps I should say this: that because the issue is so short and
so stark it is not necessary for me to give a long and detailed judgment in
this case, although I have been hearing evidence for some two or three days.
Nevertheless, I must go into some matters of detail.
As to the
telephone call which started matters off, Mr Thaker told me that on May 22 1984
Mr Schneiderman telephoned him in the early afternoon, said this property was
for sale and that he should move very quickly to buy it. He gave the address of
the property. He said there was a competing offer and he told him that in his
(Mr Schneiderman’s) view he could turn it — that is, resell it — for a lot of
profit. In answer to that, Mr Thaker says that he told Schneiderman to make an
appointment for him to see it. It was not until cross-examination that Mr
Thaker embellished that version in this material respect by saying that
Schneiderman told him that he actually had someone who would take it off his
hands.
Mr
Schneiderman’s version of that conversation is quite different. He said that he
heard from, I think, his immediate superior in the office, a Mr Day, that a
call had come from Mr Levy offering this property to them, suggesting they had
to find a purchaser quickly. He said he telephoned Mr Thaker immediately.
Thaker indicated that he was in a position to move quickly. He had given that
indication to Mr Schneiderman earlier in connection with other attempts that Mr
Schneiderman had been making on his behalf to obtain a property. At all events,
Schneiderman said that he rang Thaker and said that he had the property, or a
property, but he did not say where it was because he wanted to confirm the
commission arrangements first. He said he arranged with Mr Thaker for a
commission of 2 1/2% on the purchase price and that he insisted on 2 1/2%
commission on a sole agency for the resale; that is, if he decided to resell it
at any time.
It was not
discussed that the property was going to be resold. He took it that Mr Thaker
wanted this property as a house to live in, and it is right that at the time Mr
Thaker was looking for a house to live in. In any event, he says that Mr Thaker
agreed to those commissions and that then he told him where the property was.
He said he wanted to see the property immediately. Mr Schneiderman told him
that contracts would have to be exchanged the next day and that there was
another offer from another agent.
Mr
Schneiderman denies that he told Mr Thaker at that stage or at any stage that
he (Mr Thaker) could resell this house at a profit, and far less does Mr
Schneiderman agree that he ever said that he had a customer or anybody else
available to whom Mr Thaker could resell it at a profit.
Mr
Schneiderman says that they in fact went to the property fairly quickly, not by
arrangement with the other side but of their own initiative and there they
found someone who appeared to be looking at the property on behalf of some
other potential purchaser. Be that as it may, in the late afternoon Mr
Schneiderman and Mr Thaker went to the house. Mrs Thaker was there. Mr Levy
arrived in due course with Mr Taire.
There is no
dispute but that they all walked around the house and had a look at it. It was
virtually unfurnished. Mr Taire showed them plans which he had for extensions;
I think even for the installation of an underground swimming pool. They then
all went back to the lounge, and Mr Thaker said he tried to discuss the price
with Taire. Taire said: ‘Discuss prices with my agent’. Thaker spoke to
Schneiderman, and he says that it was then he was told that there was an offer
of £550,000 which had been made by Tanden. Again, he says he was assured by Mr
Schneiderman that he had to move very quickly but the property could be resold
for a considerable profit and a figure of about £200,000 was mentioned.
Then he said
Schneiderman and Levy were talking together; that he (Thaker) took no part
whatsoever in the discussion; that Schneiderman came back and gave him a figure
of £576,500, and he (Thaker) said: ‘If that’s the price which will buy the
house, fine’. And so matters were left.
Mr
Schneiderman’s version is different, and different in one very important
respect. He said that he had expected only Mr Levy to arrive at the premises
and he was surprised when the owner came. But he understood that the owner, Mr
Taire, wanted to sell immediately and wanted to see who the purchaser was. He
agreed that he may have said to Mr Thaker that the other offer which had been
made was for £550,000. He agreed that they walked round the house and that they
then all went back into the lounge. He said they stood around all together, and
he thought it was better to allow Mr Thaker to talk directly to the owner. They
did that. Apparently Thaker had some connection with Nigeria, and after some
general conversation in which presumably good relations were established,
Thaker said to Taire, ‘Well, what’s the situation? What’s the price?’ Taire said that he had another purchaser and the
price he wanted was £565,000 plus his estate agent’s fees. He said the situation
was one of ‘take it or leave it’. There was no question of negotiation of any
kind. Mr Levy apparently agreed with Mr Taire that his commission should be
£11,500, so that is how the ultimate figure of £576,500 was arrived at.
The vital
difference in this matter between Mr Schneiderman and Mr Thaker here is that Mr
Schneiderman said that he did no negotiating or arriving at any price but that
that was done directly, face to face between Mr Thaker and Mr Taire. He and Mr
Levy were really standing there listening to what was going on.
Mrs Thaker was
called in support of Mr Thaker. She gave broadly the same version as her
husband: that the agents and Taire talked among themselves. It was not a matter
of her husband talking with Mr Taire. But there was called, on behalf of the
defendant, Mr Levy himself. And in this vital respect he agreed with Mr Schneiderman
that the negotiations had taken place not between the agents but between the
principals. He told me that the affidavit which he swore in connection with the
014 proceedings on November 28 1984 represented the truth, and I see that in
para 3 of that affidavit he said:
After the
defendant had been shown round the property the negotiations for the sale price
took place directly between Mr Taire and the defendant, although Mr
Schneiderman and myself were listening to the conversation. Mr Taire told the
defendant that he would not deal with a new purchaser at that stage unless it
meant that he received £565,000 net of commission. This the defendant agreed to
and after negotiations with me, Messrs Garrard Smith & Partners agreed to
take a commission of £11,500 inclusive of VAT, and the defendant agreed to
purchase the property for £576,500.
So it can be
seen that his version in that vital matter is the same as Mr Schneiderman’s and
markedly different from Mr and Mrs Thaker’s.
So it comes
about that I have to decide where, in my judgment, the truth lies basically
between Mr Thaker, on the one hand, and Mr Schneiderman, on the other. First,
of course, I have had the opportunity to listen to both Mr Thaker and Mr
Schneiderman give evidence. In each case they have been cross-examined most
properly and most thoroughly and I have been able to judge of their demeanour.
I should say that I have come to the conclusion on that basis that I cannot
accept the evidence of Mr Thaker; that I prefer the evidence of Mr Schneiderman.
I found Mr Thaker to be, as a result of cross-examination — certainly he gave
me the strong impression — a businessman of limited scruples and, more than
that, quite incapable of understanding why anybody should find anything wrong
about his somewhat devious approach to his business affairs.
I observed
that, having entered into the agreement (that is what it was) at the house, to
buy the house for £576,500, in an affidavit which he swore, again in connection
with the O14 proceedings, at p4(b) he said on oath, referring to that meeting:
I did not
consider that I had made any offer the previous day, although it transpired
that so far as the agents were concerned I had done so; namely, the exhibited
sales information sheet dated May 22 1984.
In so far as
that referred to the agreement to purchase, of course, it was different from
what he told me in the witness box. It may be that he was dealing there with a
telex which he sent and which appears at p B2G. The reply to this telex, again,
took the form of a telex from the plaintiffs, which appears at the following
page, and has upon it the time it was sent; namely, 11. 14. Though it would
appear that this telex at p B2G would have been sent at somewhere round about
11 o’clock on the morning of May 23.
In that telex,
Mr Thaker says:
I have
improved on the offer you have of £550,000 by offering £575,000. Kindly note
that the agreed purchase price is £575,000 and not the subsequent figure of
£576,500.
That paragraph
is almost incomprehensible. Let me go on — the telex continues:
I am
agreeable to paying 1 1/2 per cent commission with a clause stating that no
commission should be payable to your company if I sell the property privately.
In turn your company shall be retained as sole agents to sell the property at 1
1/2 per cent commission. The contract is due to be exchanged by noon today,
hence it is important I receive your acceptance to the same conditions by
return telex.
The reference
to ‘commission’ was referring back to a letter which he had received and which
appears at p C1 in which Mr Schneiderman is setting out the agreement for 2
1/2% commission.
Mr Thaker
agreed with me that this telex sent an hour before contracts were due to be
exchanged and after manifestly an agreement had been made with the vendor was
simply an attempt by him to chip off £1,500 from this price of something in
excess of half-a-million pounds and also to try to squeeze down the estate
agent’s commission from 2 1/2% to 1 1/2%. It did not work, but it throws a
light upon the way in which Mr Thaker is prepared to conduct himself. Mr
Schneiderman says that he certainly did not communicate this talk about
£575,000 to the other side; he did not consider it to be in the best interests
of his client to do so. It manifestly was not. If that was his true light and
his true colours and he was seen in them, the whole deal might have been
imperilled. It would have been most unwise for an agent to disclose that to the
other side. So much for the demeanour of Mr Thaker.
I look at the
probabilities. This was unquestionably a deal involving a sum of money in
excess of half-a-million pounds. What Mr Thaker asks me to believe is that he
left the matter in its entirety to Mr Schneiderman. He left Mr Schneiderman to,
as it were, do the talking; but, not only that, he seems to have relied, or
would have me believe that he relied, wholly upon Mr Schneiderman and Mr
Schneiderman’s view of the value of this property; that he, although in the
same room, stood by and really asked not a question and took no part in the
dealings with Mr Taire.
This is not
someone who has come to this country and is wholly ignorant of the ways of
business and cannot move safely without the guidance and advice of professional
people. This is a hard-headed, shrewd businessman who has amassed for himself
wealth, or certainly put himself in the position where he can display all the
trappings of wealth. For several years, on his own admission, he had been
looking for properties in the Hampstead area. He must have had a view of
property values. The probabilities really make it virtually incredible that Mr
Thaker could have behaved in the way in which he said he did. Mr Schneiderman’s
and Mr Levy’s version of the matter was that this shrewd businessman was faced
with Mr Taire who was determined to sell quickly; they talked together,
established a relationship and that then Mr Thaker it was who agreed to this
figure of £576,500. I find the probabilities are wholly against Mr Thaker and
are wholly in favour of Mr Schneiderman and Mr Levy in this respect.
It is
interesting to observe also that no complaint was made in correspondence
against Mr Schneiderman to the effect that he had so behaved himself as to
disentitle the plaintiffs from recovering their commission. Indeed, when the
action was brought, the only answer made by the solicitors was to the effect
that the action had been brought against the wrong third party. It should not
have been brought against Mr Thaker; it should have been brought against his
company. But the solicitors acting on behalf of the plaintiffs were saying on
August 6 1984: ‘We are instructed that despite several promises of payment the
invoice remains outstanding’. The answer comes back from the solicitor, not
suggesting for a moment that their client had not made several promises of
payment but simply that the proceedings had been instituted against the wrong
party.
The probable
explanation for the stance which Mr Thaker has taken is twofold: one is that he
told me that after the contract had been signed but before completion, he spoke
to this man Tanden on the phone and Tanden had said his offer was £500,000. It
is not to be known whether that was the truth or not. Mr Thaker conceded that
it crossed his mind that it might be what he called a ‘wind up’ by Mr Tanden. So
it may have been, I know not. Mr Tanden was, having lost the house, as it were,
to Mr Thaker, interested to try to make it appear that Mr Thaker had bought it
at an unnecessarily high price and had not shown the shrewdness which he would
wish to characterise his business transactions. It may be that Mr Thaker’s
self-conceit had been affected adversely. It appears that subsequently he was
not able to turn this property quickly at a profit. He had to wait some
considerable time, and when his profit came it was a profit only of about
£35,000. So he feels, as he told me, that he had been ‘done’. And it may be as
a face-saving exercise he is now trying to blame his trading misfortune (it may
well have been) not upon his own ill-advised decision to buy the house, if
ill-advised it was, but to pass the blame on to Mr Schneiderman. The
probabilities are against him markedly. It is for all those reasons that I am
unable to accept his evidence.
Mr Dencer made
a very careful and balanced attack upon the credibility of Mr Schneiderman. He
pointed to two affidavits, one was the affidavit of a Mr Tickell, the solicitor
acting on behalf of the plaintiffs, again in the O14 proceedings, where he
said:
I am told by
Mr Schneiderman and verily believe that he was informed by the vendor’s agents
that the property was on offer for £576,500.
That, of
course, is different from what Mr Schneiderman told me but equally, on the face
of it, it would appear to be wrong because that rather strange figure, as Mr
Schneiderman described it, had not been arrived at until Mr Levy had agreed his
commission of £11,500. So it was not on offer for that sum; that was the sum
eventually reached or, at least, eventually agreed to by Mr Thaker.
Then he goes
on to say:
At the
property the defendant was told by the vendor that he had an offer of a
purchase of £550,000.
Mr Schneiderman
did not say that Mr Taire had said he had an offer of that amount. Then there
is the affidavit of Mr Levy where, again, he says: ‘It was not until the action
herein was commenced that I became aware of the original offer’. That puts Mr
Levy at odds with Mr Schneiderman because Mr Schneiderman was saying that he
was told by Mr Levy that there was an offer of £550,000.
Let me make it
quite clear, having heard the evidence, what my findings are in relation to
this offer. First of all, there is no doubt that it was known to everybody at
the meeting that an offer had been made and it was more than an offer; it was
an offer with which the vendor was going to proceed. I use that expression
because whether he had accepted it in any binding manner was beside the point,
but until Mr Thaker’s arrival on the scene, this house probably would have gone
forward to the purchaser from whom this other offer had been made. Then I have
no doubt that Mr Levy left Mr Schneiderman with the impression that the offer
was for £550,000.
The difficulty
at the meeting, in relation to this matter, was that the previous offer, apart
from being the occasion for swift action on the part of any new purchaser, was irrelevant
because Mr Taire was taking the attitude that his price was £565,000 exclusive
of estate agent’s commission — take it or leave it. So no one brought this
matter of the previous offer under close scrutiny. But Mr Levy told me, and I
accept, that looking at the matter, as it were, afresh, if anybody had asked
him, ‘What was the other offer?’ he would have said, ‘£550,000’. That was his
assumption, it was everybody’s assumption, as the reason for the price being
asked then of £565,000.
I have got no
doubt whatsoever that Mr Schneiderman was left with the clear impression — how
he was left does not really matter — from talking to Mr Levy that the other
offer was for £550,000 and that he communicated that to Mr Thaker and, in doing
so, he acted perfectly honestly and genuinely.
The next
matter of criticism of Mr Schneiderman advanced by Mr Dencer was that there was
a contrast between a suggestion which had been made by Mr Martin in
cross-examination of Mr Thaker; namely, that Mr Schneiderman may have mentioned
that name, and Mr Schneiderman’s clear evidence that he never mentioned the
name of Ash Tanden.
I am prepared
to accept Mr Schneiderman’s evidence and indeed it ties in with Mr Levy’s, and
Mr Levy said he certainly never told Mr Schneiderman or anybody else that the
offer had come from Mr Ash Tanden. I do not think he knew who it had come from.
He was not in a position to say it had come from Mr Ash Tanden. I see no
possible way of finding that Mr Schneiderman had found out by some other
devious means that the offer had come from that gentleman.
Going back to
the criticisms based upon the affidavits, I should say that they are matters
very reasonably argued, very carefully argued, by Mr Dencer, as he is entitled
to, but, having heard Mr Schneiderman, I am prepared to accept his explanation
for the matter, and that argument does not lead me to reject his evidence, nor
does the argument in relation to the name Ash Tanden. Again, Mr Dencer argues
that there is this difference between Mr Schneiderman and Mr Levy in that Mr
Levy says in his affidavit that right at the
on the market for, I think, £575,000-£600,000. I think he said he told Mr
Schneiderman that. Mr Schneiderman says that the first information was conveyed
to Mr Day, through Mr Day to him; he subsequently talked to Mr Levy, but at no
stage before they went to the house was he told what the price was. As I said
in the course of argument, I find it surprising to hear Mr Schneiderman say
that. I would expect the position to be as Mr Levy said it was: that he gave
them, as it were, the price bracket which his client was looking for.
Mr Dencer
argues that the letter at pC1, where Mr Schneiderman is talking about ‘acting
as sole agent for the resale of the above’, would indicate that a price had
been mentioned because it would not have been possible really to know whether
any question of resale arose unless one knew the price which was being asked. I
do not find that in any way an impressive argument and I do not find anywhere
here a reason to reject Mr Schneiderman’s evidence.
Finally, Mr
Dencer relies upon Mrs Thaker’s evidence of what she said happened in the car.
She was picked up by her husband and taken to the house. I was never given any
explanation as to why she was taken to the house, but taken there she was, and
she said that in the car her husband told her that Ash Tanden had offered a
price for the house; it was ‘five-something’. There, says Mr Dencer, is support
for Mr Thaker’s evidence that he had been told by Mr Schneiderman that there
had been an offer and that it had come from Mr Ash Tanden. I say no more about
Mrs Thaker’s evidence than that I am not prepared to accept it as a basis for
rejecting the evidence of Mr Schneiderman.
I repeat that
the hard core of the dispute here is whether the negotiations took place, as Mr
Thaker says, between the agents or whether, as Mr Schneiderman and Mr Levy say,
between Mr Thaker and Mr Taire face to face. There is clear dispute between Mr
Schneiderman and Mr Levy, on the one side, Mr Thaker and his wife, on the
other. I resolve that in favour of Mr Schneiderman, and I accept the evidence
given by Mr Schneiderman.
In this
connection I should perhaps just refer to an arrangement which was entered into
between Mr Schneiderman and Mr Levy. It was not a final arrangement, that came
a little later, but the arrangement was that their commission should be
equalised. The commission which Druces were to receive, at 2 1/2%, would have been
greater than the commission of 1 1/2% which Mr Levy had agreed to accept from
the vendor, Mr Taire. So Mr Schneiderman agreed with Mr Levy that for the sake
of good business relationships they should each pay to the other a half of
their commission, which meant that in the end they would each receive the same
amount. It also means, incidentally, that the plaintiffs would be losing £2,000
plus from their commission. They were giving that away.
Mr George Pope
[ARICS], of John D Wood & Co, was called to give a valuation, and in the
course of his report he said that he regarded such an agreement as
unprofessional. And I can well understand why he should say that. It is an
agreement which surprises me, and I do not know whether it had been realised,
but it seems to me that estate agents who enter into that sort of agreement are
surrendering their independence or their appearance of independence and lay
themselves open to the accusation that they are working in collaboration with
each other and contrary to the best interests of their clients. As I say, I can
see why Mr Pope should say that such agreement was unprofessional. I should
also have thought that it was extremely unwise. It does not here reflect
adversely upon the plaintiffs, because they were to be the losers by it, not
the gainers. I am not prepared to accept for a moment that that is a basis for
saying that in some way Mr Levy was guilty of some conspiracy with Mr
Schneiderman to act contrary to the principal’s interests in any way. It was an
agreement which was unwise but which does not lead me to reject Mr Levy’s
evidence.
Then we come
round finally to the answers to the points put forward by Mr Dencer and to
which I have already referred. First, the allegation that Mr Schneiderman told
Mr Thaker that there was a competing offer of £550,000. I find that happened.
There is no evidence before me that there was not an offer of that amount.
There is evidence that there certainly was an offer and I accept that Mr
Schneiderman genuinely believed that that offer was £550,000. Next, that he
told Mr Thaker that that offer had come from Mr Ash Tanden. I do not accept
that he said that at all. As to the allegation that he told Mr Thaker that the
property could be resold for a substantial profit or that he had a customer to
whom it could be resold at a substantial profit, again I accept Mr
Schneiderman’s evidence that he did not say that; that, as he understood the
position, without knowing one way or the other, Mr Thaker was interested in
this house as a house to live in. As he put it rhetorically: ‘Why otherwise was
Mrs Thaker there?’ Of course Mr Dencer
retorts: ‘Well, why did you make such a fuss about entering into an agreement
for commission on a resale if a resale had not been contemplated?’
Mr
Schneiderman told me, and I have sympathy for his view, and I think a full
understanding of it, that in dealing with Mr Thaker it was wise to cover the
position that this house might be resold, and that he intended no more than
that. I do not find, as I say, that he told Mr Thaker the property could be
resold, for a substantial profit. As to his giving no advice about value, it is
true that he gave no advice about value. It is equally true that Mr Thaker did
not suggest at any time in his evidence that he had ever asked his opinion as
to value. I have no doubt whatsoever that Mr Thaker had formed his own view of
the value of this house and that he could buy this house advantageously at the
figure which was being asked for by Mr Taire. But he did not enter into any
agreement as a result of any advice from Mr Schneiderman. I repeat, he had not
sought any advice from him as to value.
On those four
matters put forward by Mr Dencer, he fails; and that, as it were, destroys the
necessary basis which Mr Dencer concedes he has to establish before he can
proceed to erect an argument which would entitle his client to escape the
payment of this commission or to establish a claim to damages.
There is one
final point that Mr Dencer raises and that is that there was no agreement for
Mr Thaker to pay commission in the event that the property was purchased by a
company on behalf of him, as indeed happened. He bases that argument upon an
answer given by Mr Schneiderman. He admits to surprise when, being asked about
the letter at C1, Mr Schneiderman said that there had not been any agreement in
relation to a company, although he said in his letter that he would like to
‘confirm our agreement that should you or a company on behalf of you proceed to
purchase the property’. The parties really are at sixes and sevens at this
point.
Throughout —
and it is embodied in his pleading — Mr Dencer has been most anxious to say on
behalf of his client that I should not draw any distinction whatsoever between
the company and Mr Thaker. For his part, Mr Martin last week suddenly thought
he had spotted the point that the property had been conveyed to the company and
that any damage which was suffered had been suffered by the company and not by
the defendant in person, and since the company had come into existence only
after the agreement was entered into, the company could not recover. I think
the fact that the parties are at sixes and sevens is that these points are
either the product of ingenuity on the part of counsel or are adventitious and,
as a result, are without substance or merit. But dealing with this point I am
wholly satisfied that the agreement was that Mr Thaker should pay commission in
the event of the property being purchased by him or by a company on his behalf.
That answer can be reached in one of two ways: looking at the telephone
conversation which had taken place, the letter of May 22 and the telexes which
were sent subsequently, I am left with the clear view that Mr Thaker accepted
the position and indeed entered into the agreement, in effect, in those terms.
An alternative
way of looking at the matter is that it is a matter of necessary implication
that the commission should be payable if the property was purchased by Mr
Thaker or by not just any company but a company acting on his behalf. I would
have no hesitation whatsoever in saying that, to give business efficacy to such
an agreement in this day and age in connection with this property and what is
known as to what happens to these properties and the way in which they are
resold sometimes through companies formed ad hoc, the commission would be
payable in the event of the property being purchased either by Mr Thaker or by
his alter ego in the form of the company. That is what happened. That is what
Mr Thaker throughout has been most anxious for me to accept: that it was just
he under another name who was buying this property, in the event. On those
grounds I find that there is, as I say, neither substance nor merit in the
contention put forward by Mr Dencer on those grounds.
In those
circumstances this claim must succeed. There must be judgment for the
plaintiffs for the amount of their commission, which is £16,574.37, and the
counterclaim will be dismissed.
