Kerry Lowe Management Pty Ltd v Isherwood and Sherlock

Kerry Lowe Management Pty Ltd (the appellant) appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales. The dispute concerned the appellant's entitlement to commission on the sale of a property. The respondents, Mr. Isherwood and Mr. Sherlock, were the vendors of the property, and the appellant was the real estate agent engaged to sell it. The core of the disagreement lay in whether the appellant had procured a "purchaser ready, willing and able to purchase" the property on terms acceptable to the vendors, thereby entitling the appellant to commission.

The Court of Appeal was required to determine whether the primary judge had erred in finding that the appellant had not discharged its onus of proving that it had procured a purchaser ready, willing, and able to complete the purchase. Specifically, the court had to consider whether the proposed purchaser, a Mr. Grahame, was genuinely ready, willing, and able to complete the transaction, or if there were circumstances that indicated otherwise, thereby negating the appellant's claim for commission.

The Court of Appeal found that the primary judge had correctly concluded that the appellant had failed to establish that Mr. Grahame was a purchaser ready, willing, and able to complete the purchase. The court reasoned that the evidence demonstrated that Mr. Grahame's ability to complete the purchase was contingent upon the sale of his own property, a condition that had not been met. Furthermore, the court noted that Mr. Grahame had not demonstrated a clear intention or capacity to proceed with the purchase without this contingency. Consequently, the appellant had not fulfilled the contractual requirement to introduce a purchaser ready, willing, and able to buy the property on the vendors' terms.

The appeal was dismissed, and the decision of the Supreme Court of New South Wales was affirmed.