COMMISSION CASE

Auckland Star, Volume LXXVI, Issue 84, 10 April 1945, Page 2

COMMISSION CASE

PROPERTY. EXCHANGE APPEAL TO COURT FAILS Arising out of a triangular exchange of properties in 1942 and a claim by a land agent for commission, amounting to £81 5/, for which judgment was given by Mr. J. A. Luxford, S.M., an appeal against the magistrate's judgment was heard in the Supreme Court to-day by Mr. Justice Callan. s Appellant was Charles Robert Barr, of Waitakere (Mr. Spence), and the respondent S. A. Souter, land agent, of Auckland. The facts, said Mr. Spence, were that Barr placed his farm property at Waitakere, valued at £2780, in the hands of Souter for sale. The, latter introduced N. G. Frost, who had a farm property at Arkle's Bay, valued at £2525, but no finance. Barr would not entertain an exchange of farm properties, but agreed that if Souter found someone with a suitable city property to take over the Arkle's Bay property Barr would take over the city property. Souter submitted several city properties suitable to Barr, but the owners of these would not consider an exchange for the Arkle's Bay property. Finally Barr and Frost went to another land agent and were introduced to J. W. Whitehouse, who had a property at Northcote valued at £1650. Whitehouse agreed to take Frost's property, Barr agreed to take Whitehouse's property and Frost agreed to take Barr's farm. Souter did not know Whitehouse in- the matter at all. Mr. Spence submitted that the transaction in substance was an exchange, which was not effected by Souter, and that even should it be regarded as a sale Souter was not an efficient cause in bringing about the sale. That, he contended, was effected entirely by the other land agent. Mr. Schramm said that Souter introduced the parties and by the contract he signed Barr was bound to pay him commission if a sale took place, as it did. Counsel added that Barr had got from the other land agent an indemnity against payment of double commission. His Honor pointed out that the Court was bound by the contract signed and could not consider what was fair or otherwise. The Court's duty was to give effect to the clear meaning of the contract, and in this case he thought the magistrate was absolutely right, and had given his reasons clearly. The transaction in the form in which it was finalised became, not an exchange as .legally contemplated, but three agreements for sale and purchase. In that respondent contributed to the sale of Barr's property. The appeal was dismissed with £10 10/ costs.