Estate agent Day Morris Associates has won its appeal for commission of £17,500 for selling a £700,000 London property jointly owned by Carol and Rodney Voyce.
In July 2000, upon Mrs Voyce’s instruction, Day Morris advertised the property and, in October 2000, received an offer of £690,000, which the Voyces rejected.
During the Voyces’ divorce proceedings, a consent order was made, giving Mr Voyce sole conduct of the property sale in return for a £337,500 payment to his wife. Mrs Voyce then instructed the agent to stop marketing the house on the basis that her husband was planning to remortgage it.
Day Morris later learned that Mr Voyce had accepted a second offer from Lee, and invoiced Mrs Voyce for its 2.5% commission. It claimed that Mrs Voyce had agreed to the commission, as outlined in a letter sent by Day Morris on 18 July 2000, by her conduct in allowing them to market the property.
In the county court, Judge Hallgarten QC held that the parties had not formed a contract, and that, at the time that the sale was effected, control of the house had been transferred to Mr Voyce.
Reversing the decision, Black J said: “I accept the submission that what was established on the evidence was that the terms of the 18 July letter had been accepted by Mrs Voyce by conduct.
“It was not open to the judge, on the evidence, to construct a reservation of the type that he did to the effect that Mrs Voyce had to have had control of the sale before commission would be payable.
“The conclusion he should have drawn from the facts was that Mrs Voyce’s acquiescence in the process of marketing the property after 18 July signified her acceptance of the terms of the letter.”
Day Morris Associates v Voyce and another Court of Appeal (Sedley LJ and Black J) 26 February 2003.
Timothy Charlton QC (instructed by Colman Coyle) appeared for the appellant; Mark Warwick (instructed by Alexander Marks & Co) appeared for the respondents.
References: PLS News 26/2/03
