Jersey Unreported Judgments

[2003]JRC102

royal court

(Samedi Division)

23^rd June, 2003

Claim for agency commission, following sale of house.

Advocate P C Sinel for the Plaintiffs

Advocate D G Le Sueur for the Defendants

judgment

the bailiff:

1.        This is a claim by John Patrick Cronin ('Mr Cronin') and Francis Windsor Luce ('Mr Luce') for an agency commission which they claim to be due from the defendants, Timothy John Gordon-Benett ('Mr Gordon-Benett') and Mary Patricia Gordon-Benett ('Mrs Gordon-Benett') following the sale of a house in St Lawrence ('the property') which was owned by the defendants.

2.        In brief, the factual background is that the defendants placed the property on the market for sale in or about August 1998.  They instructed three firms of estate agents.  The asking price was £1.35 million.  The customary commission agreed with each of the agents was 2% of the sale price.  By the summer of 1999 the property had not been sold.  Mr Cronin became aware of the property being on the market from a conversation with an air hostess.  According to him, he then wrote a letter to Mr Gordon-Benett, offering to market the property for him and received a reply agreeing that he could so act.  We will return to this alleged exchange of correspondence in more detail below.  Shortly after this alleged exchange of letters, on 22nd July 1999 Mr Luce placed an advertisement in the local newspaper.  The advertisement stated -

"1 3/4 MILLION POUNDS AVAILABLE

for house purchase in St Brelade

If you are selling or thinking of selling - I WELCOME YOUR CALL.  Delayed possession or possession to suit vendor's requirement understood and acceptable.  Scale fees in event of sale. 

Please call me now."

3.        Mr Cronin saw the advertisement and telephoned Mr Luce to tell him about the property.  Mr Luce asked Mr Cronin to contact Mr Gordon-Benett to arrange a viewing for the client referred to in his advertisement, Mr Nicholas Cousins ('Mr Cousins').  There was no dispute that a telephone conversation between Mr Cronin and Mr Gordon-Benett took place, during which an arrangement was made for Mr Luce to bring Mr Cousins and his wife to the property at 2 pm on Thursday, 12th August, 1999 for a viewing.  According to Mr Gordon-Benett the telephone call had come out of the blue.  According to Mr Cronin it was pursuant to the alleged exchange of correspondence to which we have referred.  Mr Cronin and Mr Gordon-Benett were not, however, strangers to each other because they had been colleagues working together, although in different capacities, at the airport for several years until Mr Gordon-Benett's retirement.  Mr and Mrs Cousins viewed the property and left, but did not at first pursue any interest in concluding a purchase. 

4.        It was not until some months later, in April 2000 that Mr and Mrs Cousins returned, unannounced, to the property.  Either on that occasion, or shortly afterwards, there was a meeting in the kitchen of the property over afternoon tea.  Both the defendants and Mr and Mrs Cousins were present.  After some negotiation, an agreement was reached between the parties directly for a sale of the property at a consideration of £1.15 million.  At the time when this agreement was reached, lawyers were drawing up another agreement relating to the sale of the property to Richard Leonard True at a price of £1.075 million subject to certain planning consents, although no contract had been signed.  This was discussed with Mr and Mrs Cousins before their offer was made.  Counsel for the plaintiffs sought to draw adverse inferences as to the character of the defendants from their willingness to resile from the earlier bargain, but none of this is material to the decision that we have to make. No evidence was placed before us as to the precise date of completion, but it is not disputed that the property was later sold for £1.15 million to a company owned by Mr and Mrs Cousins.  The plaintiffs, who learned of the sale by chance some months later, are claiming £23,500, being 2% of £1.15 million, as their commission. 

5.        Before examining the critical evidence, it is desirable to refer to two incidents which seems to us to throw some light on the conduct of the parties.  The first is that while Mr and Mrs Cousins were being shown around the property during the first inspection on 12th August 1999, Mr Gordon-Benett overheard a conversation between Mr Luce and Mr Cousins.  During the course of the conversation Mr Gordon-Benett heard Mr Luce make use of four letter words which caused him great offence.  Neither Mr Luce nor Mr Cousins could recall such four letter words being used, but it was not really contended that this could not have occurred.  Mr Gordon-Benett was apparently sufficiently disgusted to go and tell his wife what he had heard.  Another cause of dissatisfaction was that, according to Mr Gordon-Benett, Mr Cronin told him during the viewing that Mr Luce intended to add £25,000 to the asking price.  Mr Gordon-Benett was very annoyed and told Mr Cronin that this could not be done without reference to him.  Mr Cronin could not remember this exchange.  After Mr and Mrs Cousins and the plaintiffs had left the property, the defendants resolved that they did not wish to have anything further to do with Mr Luce on account of his perceived unprofessional conduct.

6.        It is not disputed that, either on the day of the viewing or the day after, Mr Gordon-Benett telephoned Mr Cronin and told him that they, the defendants, were displeased with Mr Luce and had not liked his conduct during the viewing.  According to Mr Gordon-Benett, he added that he wished to have nothing further to do either with Mr Luce or indeed Mr Cronin.  Mr Cronin could not remember that being said, but he also claimed that he was unclear what conduct of Mr Luce had displeased the defendants. 

7.        The second incident took place after Mr and Mrs Cousins had concluded their agreement with the defendants.  Mr Cousins asked "what about Frank Luce" and Mr Gordon-Benett said that he would deal with Frank Luce.  Mr Cousins inferred from this that Mr Gordon-Benett would pay Mr Luce's commission.  Mr Gordon-Benett meant that he would, if necessary, repeat to Mr Luce what he had told Mr Cronin to tell him, ie that he wanted nothing further to do with him.

8.        It is well established law that if there is a contract of agency between an owner and an agent, the agent is entitled to commission in accordance with the contract if he introduces a person who subsequently becomes the tenant or the purchaser as the case may be.  If there is a contractual relationship between them and the agent is the effective cause of bringing about the letting or the sale, the agent is entitled to commission.  It is common ground between the parties that the plaintiffs were jointly responsible for introducing Mr and Mr Cousins to the defendants, and were the effective cause of the sale of the property to them.  The sole issue for the court is whether there was a contractual relationship between the plaintiffs, or either of them, and the defendants.  The mere fact that the plaintiffs were the effective cause of the sale is not of course sufficient.  If a man recommends to his friend a third party as a possible purchaser of a property for sale, and that third party ultimately buys the property, the man is not automatically entitled to a commission.  There must exist an agreement that commission will be paid.

9.        The plaintiffs claim that there was a written exchange of correspondence between Mr Cronin and Mr Gordon-Benett whereby it was agreed that Mr Cronin could market the property for the defendants and would, if successful, receive a 1% commission on a sole agency, or otherwise commission on the standard scale of 2%.  According to Mr Cronin's sworn replies to interrogatories, he wrote his letter in or around June 1999.  The letter in reply was received towards the end of June, or the beginning of July 1999.  Both letters were apparently hand-written.  Mr Cronin could not recollect the precise wording of the letters, but they were cordial and informal.  The reply from Mr Gordon-Benett was signed 'Tim'.  Curiously the exchange of letters did not, according to Mr Cronin, deal with the asking price.  This was resolved during a later telephone conversation some days later. 

10.      In response to an interrogatory in the following terms -

'state with particularity .... the date on which the first plaintiff allegedly wrote to the defendant offering his services as an estate agent'

Mr Cronin swore that -

'The letter referred to is no longer in my possession.  I have moved offices on two separate occasions since the letter was written during which time the letter has become lost.'

The letter to which reference is made in the interrogatory was the letter sent to Mr Gordon-Benett.  It is not clear from the response whether the lost letter was a copy of the letter sent to Mr Gordon-Benett, or whether it was intended to refer to the letter from Mr Gordon-Benett.  Whichever it was, Mr Cronin's oral testimony in reply to a question in cross-examination was different.  When pressed by counsel for the defendants, Mr Cronin stated that he had not lost the letter, but had thrown it away some three or four months after he had learned of the sale to the company owned by Mr and Mrs Cousins.  Later, when requested to produce it by the defendants' legal advisers, he had searched for it, hoping that he had not disposed of it after all.

11.      Mr Cronin testified that his letter to Mr Gordon-Benett would have been written on the notepaper of Belwood Property Services Limited of which he was a director but not a shareholder.  He said that he had kept the exchange of letters for some two years, even after two office moves.  He had also mentioned the exchange of correspondence to his wife.  He had told her that he had got a letter from Mr Gordon-Benett and that he could offer the property for sale.  He did not, however, generally have written contracts with his clients.  He stated that he worked through trust.

12.      Mr Cronin stated that he worked as an estate agent.  He had known Mr Gordon-Benett for some years because they had both worked at the airport.  He had worked as a traffic supervisor and Mr Gordon-Benett had been a pilot.  He had retired from the airport in 1987.  He now managed about eight properties belonging to his brother-in-law, as well as acting as an agent.  He sold about five or six properties per annum in the price range £100,000 to £700,000.  He was not a member of the Jersey Estate Agents Association.  He had no word processor, nor fax machine in his office, although he had access to a photocopier.  All his business correspondence was handwritten.

13.      Mr Cronin conceded that, despite receiving these instructions from Mr Gordon-Benett, he never visited the property to obtain particulars.  He had been to the property once before, but had seen only the kitchen and the lounge.  He could not say, for example, whether it had a garage.  He did not think that it was vitally important for him to have these particulars. 

14.      The plaintiffs called Mrs Joyce Cronin to corroborate the evidence of Mr Cronin that he had showed her the letter from Mr Gordon-Benett.  Mrs Cronin works as an air stewardess and it was one of her friends or colleagues who had informed Mr Cronin that the property was for sale.  Mrs Cronin said that her husband had told her of the letter from Mr Gordon-Benett.  She was not very clear about when she saw it, but she stated that she had glanced over her husband's shoulder while they were in the kitchen and had seen a letter signed 'Tim'.  There was, however, a surprising conflict of evidence between Mrs Cronin and her husband in relation to where her husband carried on his estate agents business.  In answer to a question in cross-examination, she stated that he had worked from home for about eight years.  It was then put to her that, according to Mr Cronin's original evidence, the letter had been lost during one of his office moves.  Mrs Cronin appeared discomfited but then recalled that he did have an office in Halkett Place, but she could not remember exactly when. 

15.      Mr Gordon-Benett categorically denied that he had received a letter from Mr Cronin in June/July 1999 and that he had replied to him.  He told us that in his business affairs he did not write handwritten letters.  His training as a pilot had taught him to be meticulous about recording his activities.  Every aspect of his business correspondence was in a filing cabinet.  He had had no written communication from either plaintiff until he received what he described as an intimidating demand for commission from Mr Luce. 

16.      We have reached the conclusion that there was no exchange of letters between Mr Cronin and Mr Gordon-Benett.  We accept the evidence of Mr Gordon-Benett as having been truthfully given.  From our observations of him in the witness box, we think that he is a punctilious man who borders occasionally on the pedantic.  We think it would have been out of character for him to have sent a hand-written reply to Mr Cronin in the manner alleged.  We take into account, in arriving at our conclusion, the conflict of evidence between Mr and Mrs Cronin as to where Mr Cronin carried on business at the material time.  By his own admission, Mr Cronin does not operate an office to ordinary professional standards.  We also think it surprising that he should have chosen to throw away the alleged letter (whichever letter it was) after learning of the sale of the property to Mr and Mrs Cousins.  Having apparently kept the letter for two years, why should it be thrown away at the very time when it was important to retain it in relation to a claim for commission?  We do not accept the evidence of Mr and Mrs Cronin in relation to the alleged exchange of letters.  Whether they have persuaded themselves that there was such an exchange, we do not know.  But we are satisfied that there was no such exchange. 

17.      Not withstanding that conclusion, is there any other evidence of a contract of agency between the plaintiffs and the defendants?  We remind ourselves first of all of the philosophical theory which underpins our law of contract and which is expressed in the maxim ' La convention fait la loi des parties'.  This maxim is sometimes referred to, not entirely satisfactorily, as expressing the notion that the parties are bound by the agreement they have made.  At its root, the maxim expresses the theory of the autonomy of the will.  According to this theory, a person can be bound by a contractual obligation only if it is expressive of his own free will.  There must be a meeting of minds before a convention can be made and a contractual obligation arises. 

18.      There is little doubt that there was no meeting of minds between Mr Luce and the defendants.  Indeed, Mr Luce conceded in cross-examination that he did not have a contract with Mr Gordon-Benett.  So far as Mr Luce was concerned, there was a contract between Mr Cronin and the defendants, and he (Mr Luce) was entitled to half of Mr Cronin's commission by way of a separate or collateral contract between him and Mr Cronin.  Mr Luce did not express it in quite these terms, but he certainly considered that he was entitled to half of Mr Cronin's 2% commission on the sale price.  It is clear therefore that, as against the defendants, Mr Luce's claim must fail. 

19.      We have already found that there was no written exchange of letters between Mr Cronin and the defendants.  Is there any other evidence from which it can be inferred that there was a meeting of minds between them?  There is no evidence of any material contact between Mr Cronin and the defendants before the viewing on 12 August 1999 other than a telephone call from Mr Cronin to Mr Gordon-Benett when the viewing was arranged.  According to Mr Gordon-Benett this telephone call came out of the blue.  His evidence was that Mr Cronin had informed him that Mr Luce had two retained clients who wished to view the property, and that he had acceded to this request.  Mr Gordon-Benett had assumed from this call that Mr Cousins was a client of Mr Luce and that Mr Cousins would be paying Mr Luce's charges.  That assumption was later shown to be misplaced, but it was the assumption made at the material time.  The evidence of Mr Cronin in relation to this telephone conversation was that he told Mr Gordon-Benett that Mr Luce was an estate agent, but that there had been no discussion between them on the subject of commission in the event that the clients of Mr Luce ultimately purchased. 

20.      The burden of proving that there was a meeting of minds lies of course upon Mr Cronin.  He has to satisfy the Court on a balance of probabilities that there was an agreement between him and the defendants to pay a commission if the clients introduced by Mr Luce ultimately purchased the property.  We are not so satisfied.  In our judgment there was no meeting of minds between Mr Cronin and Mr Gordon-Benett.  It may be that Mr Cronin hoped, or even expected, that a commission would be paid.  We have no doubt that Mr Luce, who had been told (in our judgment inaccurately) by Mr Cronin that he had been retained by the defendants, thought that there was an agreement between Mr Cronin and Mr Gordon-Benett.  But we have no doubt that Mr Gordon-Benett did not expect to pay a commission.  So far as he was concerned, the introduction by a former colleague to Mr Luce was on the basis that any commission due to Mr Luce would be paid by his clients, Mr and Mrs Cousins.  There being no meeting of minds, no convention, there can be no contract.  It follows that Mr Cronin's action must also fail.  The plaintiffs' claim is therefore dismissed. 

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