Cunning Commission Clause

by Tim O’Dwyer M.A., LL.B Queensland Solicitor & Consumer Advocate watchdog@argonautlegal.com.au

Buyers default, seller still "liable" to agent.

A young home-seller had to change solicitors when a problem arose on his sale. Apart from the same solicitor having acted for both parties, the issue was simple: the buyers could not settle on time. They would be delayed because their bank was refinancing another property as part of its financing of this one. 

Although finance was approved and all special conditions satisfied, a week’s extension was needed. But the seller would not agree.

Nor did he have to. The parties had signed a contract with a fixed settlement date – and time was "of the essence".

"What can I do?" the seller asked his new solicitor.

"If you are ready to settle on the due date," the solicitor replied, "you can hold your buyers in breach of contract, terminate and forfeit their deposit."

The solicitor had one nagging doubt. Could the agency, which sold the property, still claim commission? When asked for a copy of his listing agreement, the client produced a 20-page bound booklet. On the cover were these questions: Why? When? Who? Where? What? How? How much? These exclamations: Excellent! Thank you! This explanation: "Some questions answered because ‘real estate is about people not houses’"; The familiar picture of a girl and teddy; L J Hooker’s logo and slogan "Nobody does it better".

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