IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ILFORD COUNTY COURT
(HIS HONOUR JUDGE RICHARDSON)
B e f o r e :
LORD JUSTICE KAY
MR JUSTICE LINDSAY
|THE LONDON MEWS COMPANY LIMITED||Respondent/Claimant|
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MR J KITSON (instructed by Shah & Burke Solicitors) appeared on behalf of the Claimant
Wednesday, 7th May 2003
Crown Copyright ©
"You will be liable to pay remuneration to us in addition to any other costs or charges agreed, if at any time unconditional contracts for the sale of the property are exchanged (and subsequently completed) with a purchaser introduced by us during the period of our sole agency or with whom we had negotiations about the property during that period; or with a purchaser introduced by another agent during that period".
"After receipt of the details, I spoke to Mr Bikhit of Messrs Kaye & Co and expressed interest in viewing the Property. It was explained to myself and my girlfriend, Ms Suzanna Wong, that the vendors were out of the country for the weekend and were thus uncontactable but that Messrs Kaye & Co would seek to arrange an appointment for us to view the property on Monday 26th March 2001. During the course of the morning of 26th March, there were various calls between ourselves and representatives of Kaye & Co and eventually Mr Bikhit admitted to us there seemed to have been some misunderstanding between themselves and the vendor and that they were not retained to sell the property on the vendor's behalf, but "could get us into the property" if we agreed to pay them a commission equivalent to 1 per cent of the purchase price. At this point I expressed my extreme dissatisfaction with the way in which Messrs Kaye & Co conduct their business. I explained that to my mind they had misrepresented themselves as being appointed as agents to sell the property on behalf of the vendor and I did not, at this nor at any prior or subsequent stage, agree to pay the 1 per cent commission they requested on the purchase of the property nor any other property. In reply to this Mr Bikhit said that they thought that Messrs Kaye & Co had been appointed by the vendor and if I was not prepared to pay the 1 per cent commission then I could, of course, seek to gain access to the Property through contacting the estate agents instructed by the vendor to sell the Property or making my own private enquiries".
"It may not be relevant to you, but I would suspect that if you were to contact us directly there may well be an estate agent commission saving for you".
"16. It is said that there are two breaks in the chain of causation between the acts of the claimants and the ultimate transaction. Firstly, it is said that Kaye & Co, without authority from anyone, prepared and sent to Mr Cullinane their own particulars of the property. Secondly, it is said when Mr Cullinane expressed interest in the property they did not put him into contact with the claimants or arrange for him to view it. Either of those events alone, it is said, would be sufficient to prevent the claimants from the being the effective cause of the sale".
The judge continued:
"I have listened with care to that argument, but I reject it.
17. So far as the particulars of the property are concerned, I have already said that it is, in my judgment, clear in this case that there can only be two explanations for the particulars. One is that Kaye & Co copied the particulars prepared by the claimants. The other is that Kaye & Co were invited in by the defendant. Since the latter is not argued by anyone, the former has to be the reality of the case.
18. So the very fact of the particulars supports what the claimants' witness say -- which is that Kaye & Co responded to the advertisement and obtained the details from the claimants. It is true that Kaye & Co did not put Mr Cullinane in contact with the claimants or arrange for him to view it, but by passing on the particulars prepared by the claimants to him they enabled him to do so. The reality in this case therefore is that it was the work done by the claimants, the advertisement, the preparation of particulars, which enabled the whole matter to go ahead. In my judgment, the intervening officious behaviour of Kaye & Co does not break the chain of causation".
"... the fact that one agent introduces a person who ultimately purchases after a later introduction by another agent will not necessarily entitle the first agent to commission. In such a case the court must determine which of the two agents was the effective cause of the transaction taking place".
"The difficulties in clarifying the mind on this question are, I think, caused by the familiar meaning of the word 'introduction' as the bringing together of two people who have not previously met. Thus it is natural, when looking at the word in its present context, to attach significance to the first bringing together of the property and the person who ultimately purchases it. But the full phrase is 'the introduction of a purchaser' and I think that that can only mean the introduction of the person who ultimately purchases, not to the property, but to the purchase or, if you look at it from the vendor's angle, to the sale; in either case to the transaction which ultimately takes place. And if you then apply the primary dictionary meaning of 'introduction', you find that what you are looking for is the leading or bringing in of the purchaser to that transaction. That makes it clear that first acquaintance is not paramount and it explains why the test is expressed by reference to the effective cause of the transaction".
"The introduction of Mr Rudd was not made by the agents, John McCann & Co, nor was it made by any authorised sub-agent".