Clarke v Franzen Pty Ltd & Ors [2007] NSWSC 920

New South Wales Supreme Court

CITATION : Clarke v Franzen Pty Ltd & Ors [2007] NSWSC 920

HEARING DATE(S) : 13 to 16 August 2007

JUDGMENT DATE : 22 August 2007

JURISDICTION : Equity Division

JUDGMENT OF : Palmer J

DECISION : Judgment for the Defendants.

CATCHWORDS : REAL ESTATE AGENT – AUTHORITY – Whether real estate agent expressly given verbal authority to exchange contracts for sale on behalf of vendor.

LEGISLATION CITED : Fair Trading Act 1987 (NSW) – s.42, s.45 Trade Practices Act 1974 (Cth) – s.52

David John Clarke – Plaintiff PARTIES : Franzen Pty Ltd (formerly Franzen Malua Bay Real Estate) – First Defendant Carlene Annette Franzen – Second Defendant Ferdinand Franzen – Third Defendant

FILE NUMBER(S) : SC 5970/04

COUNSEL : T.G. North SC, A.J. Paterson – Plaintiff D.R. Pritchard – Defendants

SOLICITORS : Fitzpatrick Legal (Melbourne) – Plaintiff Henry Davis York – Defendants

5970/04 Clarke v Franzen Pty Ltd & Ors

JUDGMENT 22 August, 2007

Introduction

1 The Plaintiff ("Mr Clarke") was the owner of waterfront property at Malua Bay on the south coast of New South Wales ("the Property"). The Property was sold to a Mr and Mrs Paterson in 2002, but the sale was completed only after Mr and Mrs Paterson obtained an order for specific performance against Mr Clarke. The First Defendant ("FPL") is an incorporated real estate agent which acted for Mr Clarke on the sale. The Second Defendant ("Mrs Franzen") is a director of FPL. The Third Defendant ("Mr Franzen"), who is the husband of Mrs Franzen, holds a real estate agent's licence in his own name and is not a director of FPL. 2 Mr Clarke claims that FPL wrongfully exchanged the contract for sale of the Property, which he had executed, with the solicitors for Mr and Mrs Paterson, whereby he became bound to sell the Property to Mr and Mrs Paterson. 3 Mr Clarke asserts that the exchange of contracts effected by FPL was wrongful because: