In a recent case, the NSW Court of Appeal made a significant determination regarding the entitlement of an agent to commission from a property developer. The court emphasized the necessity of an “effective introduction” in establishing a valid claim for commission. Additionally, the importance of a binding agency agreement was highlighted in ensuring clarity and the proper payment of commissions. This article explores the key points from the case and provides valuable learnings for agents to protect their interests.

The Freedom Development Case: The case of Freedom Development Group Pty Ltd v D’Ettorre Properties Pty Ltd T/as D’Ettorre Real Estate [2023] NSWCA 81 (Freedom Development) involved a dispute over commission payment between an agent and a property developer. The agent’s claim for the commission payment of $154,000 was initially awarded by the District Court but was later overturned by the NSW Court of Appeal.

Establishing an Effective Introduction

The pivotal issue in the case was whether the agent had made an “effective introduction” of the actual purchaser, as required by the agreement. The court concluded that the agent had merely acquainted a director of the purchasing company with the property, failing to establish the necessary causal nexus between the seller and purchaser. As a result, the agent was deemed ineligible for the commission.

Misleading and Deceptive Conduct Claim

Furthermore, the agent had lodged a claim for damages based on allegations of misleading and deceptive conduct by the developer. However, the court found that the claim had been incorrectly pleaded, resulting in no damages being awarded to the agent.

Implications and Key Learnings

The Freedom Development case highlights important lessons for both real estate agents and developers:

• Emphasize Effective Introductions: Agents and developers must ensure that their involvement goes beyond mere acquaintanceship. To establish a valid claim for commission, there should be clear evidence of actively facilitating the contract of sale and introducing the actual purchaser.

• Review Agency Agreements: It is crucial to review the terms of engagement agreements to ensure that they provide sufficient clarity regarding effective introductions. Ambiguities or lack of clarity can lead to disputes and potential loss of commission.

• Seek Legal Expertise: If there are any doubts about the robustness of current agency agreements, it is advisable to seek legal advice from professionals well-versed in real estate law, such as the experts at & Legal.

Conclusion

The NSW Court of Appeal’s determination in the Freedom Development case serves as a reminder for agents and developers to pay close attention to the effectiveness of their introductions and the clarity of their agency agreements. By actively participating in the sale process and ensuring unambiguous terms, agents can protect their interests and avoid disputes that may lead to unfavourable outcomes. Remember, it is always prudent to consult with legal practitioners for personalized advice tailored to specific circumstances.

Disclaimer: This article prepared by & Legal provides general information and should not be construed as legal advice. It is not a substitute for consulting with a qualified legal practitioner for individualized guidance.

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