Commission Agent’s Claim

Hokitika Guardian, 9 March 1922, Page 4

Commissi on Agent’s Claim

AN IMPORTANT .JUDGMENT

DUNEDIN, March 6.

Commission agents and land agents ' throughout New Zealand are vitally concerned in the decision given to-day at Dunedin by Mr Justice Sim in the action of Buchanan v. James S'Mnson and Co. No secret is made of the fact that the Land Agents’ Association is talking of appealing. His Honour, in his judgment, said: —On June 14th., 1921, a sum of £SOO wa s paid to tlie defendant as a deposit .in connection with tho sale b; tlie plaintiff to one McKenzie of the hotel at Mosgiel There were difficulties' in connexion wjth the completion of the sale, and McKenzie brought an action against the plaintiff to compel specific performance of the contract. This action was compromised and the sale was completed on terms slightly different from those which had been arranged b v the defendant. The plaintiff now claims to recover £SOO from the defendant. The defendant has paid into Court the sum of £2.17 4s, and claims to retain the balance of £262 16s as commission payable by the plaintiff on the sale. The plaintiff denies that ; tlie defendant lias earned any commission, and as a further answer to the defendant’s claim to commission, he relies on the fact that the defendant’s engagement to act as agent was not in writing, and signed by the plaintiff, as required by Section 13 of the Land Agents Act, 1912. It is clear, I think t'hat if there had not been any question as to his authority, tho defendant would have b e en entitled to commission on the sale. This was not renHy disputed in the end by counsed for the plaintiff, and the real question is dispute is as to the effect of Se-t.oii 13 of the Land Agents Act, 1912. It is clear, I think, that if there had not been any question as to his authority, the defendant would have been entitled to commission on the sale. This was not really disputed in the end by counsel for the plaintiff, and the real question in dispute is as to the effect of Section 13, on the rights of parties. It was contended on behalf of the defendant, that he was entitled to deduct all just allowances from any money held by him on behalf of the plaintiff, and tliat the commission in question was such a just allowance. In support of this contention I counsel relied on-the case of Dale v. Sollet, but the judgment of Lord Mansfield in that case is not an authority for saying that a commission which i,s made irrecoverable by law is a just allowance. If the defendant is not entitled to deduct tho commission under the authority of Section 13, and a deposit is paid to him on behalf of liis principal, he is not entitled to apply it in payment of bis commission unless bis principal has expressly authorised him to do so, or has consented to the agent treating the deposit as a sum paid to him by the principal himself. The principal has not done either of these things in the present case, and I must hold that the plaintiff is entitled to recover the sum in question. Judgment accordingly for £262 16s, with costs, and judgment also for plaintiff on the counter claim with costs. It is unfortunate for the defendant that he cannot recover his commission, but he should have taken the precaution of getting his authority in writing, and not have assumed that the plaintiff would not take advantage of the statute to defeat a claim for commission which appears to have been fairly and honestly earned.