by Tim O’Dwyer M.A., LL.B
Carly Gillard was staggered, after settling the sale of her Northern New South Wales property, to find herself facing commission claims from two real estate agencies. Her property had been listed with both agencies, but only one secured the sale. She soon filed a claim with the NSW Consumer, Trader and Tenancy Tribunal to determine whether she was liable for two commissions and, if only one, which agency she should pay.
On 15th March 2006 Carly listed with Swann Realty (“Swanns”) under an exclusive agency agreement until 30th April. While this agreement provided for non-exclusive selling rights from 1st May until the property sold or the agreement was terminated, it also explained how, if another agent sold her property, Carly might have to pay two commissions. On 1st May, after Swanns’ exclusive agency ended, Carly gave a non-exclusive listing to Dillon Realty (“Dillons”).
On 28th April, Graham and Tracey Chapman, who were in the market to buy, arranged with Swanns to inspect Carly’s property. But the appointment was cancelled. Another was made, and Chapmans inspected the property on 2nd May when they said they might make an offer. A couple of weeks afterwards Swanns showed them another property.
Chapmans also approached Dillons about properties for sale. Carly’s was among those shown to Chapmans. When Chapmans told Dillons they had already inspected it with Swanns, Dillons said this would be OK. On 16th May Dillons notified Carly that a sale had been negotiated with Chapmans, but failed to mention that Swanns had shown Chapmans the property first. Contracts were exchanged on 30th May. After settlement on 14th July, Dillons claimed their commission. On learning of the sale, Swanns also claimed commission from Carly.