T P CARROLL REALTY PTY LTD t/a L J HOOKER NEUTRAL BAY v MOYES and ANOR [1997] NSWCA 321

T P CARROLL REALTY PTY LTD t/a L J HOOKER NEUTRAL BAY v MOYES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, BROWNIE and CLARKE AJJA 17 April 1997, 17 April 1997 [1997] NSWCA 321

CONTRACT — PRINCIPAL AND AGENT — Whether agent entitled to commission — Whether agent effectively introduced purchaser to vendors — No error in trial judge's finding of fact — Appeal dismissed.

PRINCIPAL AND AGENT — COMMISSION

A real estate agent claimed commission in respect of a sale of land. Under the agency agreement the entitlement to commission depended upon the agent having "effectively introduced" the purchaser to the vendors. The trial judge found as a fact that the agent had not done so — HELD — The finding was correct.

Gleeson CJ This is an appeal from a decision of Taylor DCJ dismissing a real estate agent's claim for commission.

The primary facts of the matter, which were not in dispute, may be summarised as follows.

The respondents to the appeal, Mr and Mrs Moyes, owned a house at 31 Battle Boulevard, Seaforth. In July 1990 they put their house on the market for sale. On 31 July 1990 they entered into a written agency agreement with the appellant, T P Carroll Realty Pty Ltd trading under the firm name of L J Hooker Neutral Bay. This was not a sole or exclusive agency agreement.

The appellant found a purchaser, Mr S J Taylor, who agreed to buy the property for $2,937,810. Mr Taylor was a life insurance agent. He had business connections with a number of insurance companies, including Australian Eagle Insurance Co Ltd.

On the day on which Mr Taylor was taken by a representative of the appellant to inspect the respondent's property he received a visit apparently for mixed social and business purposes, from an officer of Australian Eagle Insurance Co Ltd, Mr Dougherty. Mr Dougherty accompanied Mr Taylor and the real estate agent on an inspection of the property. Mr Dougherty's purpose was purely social.