A J McPherson & Associates Limited T/A Ray White Merivale v New Zealand Trustee Services Limited (as Trustees for Montgomery Trust) HC Christchurch CIV-2006-409-002715
[2007] NZHC 1862
•19 June 2007
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2006-409-002715
BETWEEN A J MCPHERSON & ASSOCIATES LIMITED TRADING AS RAY WHITE MERIVALE
Plaintiff
AND NEW ZEALAND TRUSTEE SERVICES LIMITED (AS TRUSTEES FOR MONTGOMERY TRUST)
First Defendant
AND ANDREW JAMES O'NEIL Second Defendant
Hearing: 13 June 2007
Appearances: T W Evatt for Plaintiff
A J Forbes QC for Defendants
Judgment: 19 June 2007
JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN Upon Application for Summary Judgment
[1] Usually summary judgment applications are inappropriate for resolving conflicts of evidence on affidavit. That does not prevent reasoned analysis of that conflicting evidence. Sometimes the evidence of one side appears imprecise or inconsistent, or at worst contrived to suggest that it should not properly be accepted as conflicting evidence. Sometimes that involves an assessment of why, and in what circumstances that conflicting evidence was offered. Summary judgment is not an appropriate conclusion for those cases where material doubt remains concerning
conflicting positions.
A J MCPHERSON & ASSOCIATES LIMITED TRADING AS RAY WHITE MERIVALE V NEW ZEALAND TRUSTEE SERVICES LIMITED (AS TRUSTEES FOR MONTGOMERY TRUST) AND ANOR HC CHCH CIV-2006-409-002715 19 June 2007
[2] This case concerns a claim by a real estate agent (Ray White) to recover commission it says was due pursuant to an agency agreement completed by the Montgomery Trust. New Zealand Trustee Services Limited (NZTS) is a trustee of the Montgomery Trust.
The facts
[3] The terms of the agency agreement are important in this case. They provided, among other:
i) Ray White was to be the exclusive agent for the sale of the Montgomery Trust property, comprising seven residential units, at 123 Papanui Road, Christchurch.
ii) The term of the agency was from 2 June 2005 to about 6 July
2005.
iii) Ray White would be entitled to commission of $78,750 (being
$10,000 plus GST for each of the seven units) in the event:
(i) the Montgomery Trust entered into a binding agreement to sell the property, or
(ii) the property was sold privately either:
a. during the period of the agency; or
b. to a purchaser introduced to the property during the period of the agency.
iv) A purchaser shall be deemed to have been “introduced” to the property where the property was brought to a purchaser’s attention as being for sale whether by advertisement, signage, verbally, directly or indirectly, during the term of the agency appointment.
[4] Ray White claims that Mr O’Neil accepted personal liability for payment of the commission.
[5] Montgomery Trust’s property in Papanui Road, Christchurch was bought by KT Acquisitions Limited (KT) which owned a motel across Papanui Road, known as Merivale Manor. Kevin McGoverne and Todd Reinke were the principals of KT Acquisitions Limited. Peter Ryder, for Ray White, had secured the listing from Mr O’Neil. Ray White’s principal was then, and still is, Mr McPherson. He deposes that the sale of the property to KT Acquisitions came to his attention mid- to late-
2005. What occurred then is, from the Court’s point of view, important in the process by which the conflicting factual claims can be measured.
Initial demand for payment of commission
[6] Following his enquiries, and believing commission was payable to his company, Mr McPherson instructed solicitors to write to the Montgomery Trust demanding payment of commission. The letter of demand from his solicitors, White Fox and Jones, to Montgomery Trust’s solicitors, Godfreys, noted:
During the term of the agency, our client introduced the property to Messrs Reinke and McGoverne as principals of the adjacent Merivale Manor complex. It appears that your client has subsequently committed to sell the property to interests associated with Messrs Reinke and McGoverne and that a sale of contract is unconditional… our client is therefore entitled to payment of commission… and we make demand.
[7] Montgomery Trust’s solicitors responded, inter alia:
i) The agreement for sale and purchase was executed two days after Ray White’s agency appointment expired.
ii) Mr O’Neil advises Messrs Reinke and McGoverne initially approached him on 8 February 2005 with respect to the development and their potential interest in purchasing the units. A copy of Mr O’Neil’s Vodafone cellphone account details for February 2005 was enclosed. Reference was made
to Mr O’Neil telephoning Mr Reinke in response to the latter’s message.
iii) Mr McGoverne spoke with Mr O’Neil’s site foreman at 123
Papanui Road, Mr A Bedford, around April 2005. The latter showed Mr McGoverne around the development and let him view the plans.
iv) Mr Reinke and Mr McGoverne were well aware of the development across the road at 123 Papanui Road long before Ray White became involved.
[8] Montgomery Trust’s solicitors concluded by stating:
i) Ray White’s agency had expired before the agreement to sell to KT Acquisitions was signed.
ii) Ray White did not introduce the property to Messrs Reinke and McGoverne because Mr O’Neil had already been approached by them earlier in February 2005.
iii) Ray White did not procure Messrs Reinke and McGoverne into entering into the agreement for sale and purchase.
Evidence provided when proceeding filed
[9] Later, affidavits sworn by Mr Reinke and Mr McGoverne confirm they met with Mr Ryder on 14 June 2005 when they were provided with an information booklet including plans and details concerning the property at 123 Papanui Road. They say the following day they met with Mr O’Neil at a chance meeting on site. In the course of discussions they say Mr O’Neil told them to deal directly with him in relation to any further enquiries, and that he would “fix up” the real estate agent.
[10] Mr Reinke said he did not discuss buying the property at 123 Papanui Road with Mr O’Neil at any time prior to 15 June 2005. Mr O’Neil’s reference to a
telephone conference in February 2005 was, Mr Reinke deposes, related to the possibility of the purchase of a property in Fiji.
[11] Both Mr Reinke and Mr McGoverne depose that on 16 June 2005 at the offices of Cousins and Associates solicitors, and in the presence of Mr Smith of that firm and Mr O’Neil, they signed a sale and purchase agreement on behalf of KT Acquisitions for the purchase of Montgomery Trust’s property. Mr McGoverne notes the agreement was not dated at that time, but recalls Mr O’Neil requesting that the date be left out. Both Mr Reinke and Mr McGoverne state they had not prior to that expressed any interest in purchasing the subject property.
[12] That account of events is supported by Mr Smith. He recalls that on 15 June
2005 he was instructed to prepare a draft sale and purchase agreement for the purchase. On 16 June 2005 he met with Messrs Reinke and McGoverne and Mr O’Neil at his offices. He said the agreement for sale and purchase was signed on 16
June. The agreement was not dated, at the request of Mr O’Neil. Mr O’Neil took the agreement away, and it was returned to his office at a later date. Eventually, Mr Smith acted for Messrs Reinke and McGoverne in settlement of the purchase from Montgomery Trust.
[13] Mr Ryder confirms the above, but adds it was he who approached Mr O’Neil on 2 June 2005 to request to list the Montgomery Trust property for sale. At that time it was under construction. Mr O’Neil agreed, and at that time they completed an exclusive Agency Agreement. He recalls that on 14 June 2006 he was contacted by Mr Reinke regarding the property. He learned of Mr Reinke’s association with the Merivale Manor property across the road. Mr Reinke advised him he had noted the contact details on the Ray White sign. A meeting at Merivale Manor was arranged. After the meeting he called Mr O’Neil to advise him of Messrs Reinke and McGoverne’s interest. Mr O’Neil said he was familiar with them and Merivale Manor.
[14] Mr Ryder’s subsequent conversation with Mr O’Neil on 15 or 16 June 2005 indicated Mr O’Neil’s disinterest in dealing with Messrs Reinke and McGoverne. Mr Ryder telephoned Mr Reinke. Mr Ryder noted a vague and unsure response to
his enquiry. He heard nothing more at the time from Messrs Reinke or McGoverne. Then, he says, on or about 23 June 2005 Mr O’Neil telephoned him and advised he no longer wanted to sell the property because of the tax consequences involved. He said Mr O’Neil offered to pay Ray White’s marketing costs, even though, to Mr Ryder, these were not costs Ray White could claim.
[15] At that time he stopped marketing the property, but by chance about two and a half months later he met with Messrs Reinke and McGoverne and learned from them that they had purchased the Papanui Road property in June 2005. He said they explained to him that Mr O’Neil was going to fix the question of agent’s commission payable to Ray White.
Opposition to the claim for Summary Judgment
[16] Initially it was that:
a) Mr O’Neil, personally, was not a party to any agency contract, and
b) Montgomery Trust and Ray White orally agreed, at the time the contract was entered into, that Montgomery Trust would not be liable to pay commission on sale to persons with whom Mr O’Neil had been having sale negotiations.
[17] Mr O’Neil deposes he is an experienced property developer. He is the property manager of Montgomery Trust. He is in control of the Trust’s affairs. He owns and manages Parkside Developments Limited, the company that built the residential apartments at 123 Papanui Road.
[18] Mr O’Neil says he had an initial discussion with Mr Reinke about the Papanui Road property on 8 February 2005, on the same occasion when Mr Reinke said there was a discussion regarding a Fiji property. Mr O’Neil says any discussion about a Fijian property is not true. Rather, it concerned the Papanui Road property.
[19] He recalls that in March 2005 Mr Bedford, the project manager for the 123
Papanui Road development, informed him that some gentlemen from Merivale
Manor had approached seeking information about the development. At that time Mr Bedford provided those gentlemen with Mr O’Neil’s cellphone number. Soon after, Mr O’Neil says he received a telephone call from Mr McGoverne, who explained a group of investors were looking for more motel land on Papanui Road. In the outcome Mr O’Neil instructed that a set of development plans be delivered to Mr McGoverne. He said delivery took place on 6 April 2005. Later he said Mr Bedford informed him the plans had been shown to Mr Reinke and another. He was told they were keen to buy the property. Later Mr McGoverne contacted him to discuss the development. There was a discussion about the changes needed to turn the apartments into motels.
[20] Mr O’Neil said that in early May 2005 he met with Mr Reinke and others on site at 123 Papanui Road, and there was discussion about construction changes. This occurred shortly prior to the fire at Merivale Manor on 12 May 2005.
[21] Mr O’Neil said Montgomery Trust engaged Mr Ryder to market the apartments because he thought there may be others who would want to purchase them. He said that when he signed the authority for Ray White to market and sell the apartments he advised Mr Ryder there were some interested parties already, but nothing had been put on paper at that stage. He said he explicitly advised Mr Ryder not to deal with Messrs Reinke or McGoverne as he was already working with them on a sale. He said it “was agreed between Mr Ryder and I that any sale to Messrs Reinke and McGoverne would fall outside the plaintiff’s authority to sell the property”. He added, “I also advised Messrs Reinke, McGoverne… that I was listing the apartments with Mr Ryder, but that they were to deal with me directly as Mr Ryder was aware of our ongoing negotiations.”
[22] Later, he stated that it was agreed between he and Mr Ryder that Montgomery Trust would not be liable for any commission on any sale to Messrs Reinke and McGoverne, but that the Montgomery Trust would pay for advertising and market expenses if the property was sold to them. He mentioned contacting Mr Ryder regarding the state of negotiations with Mr McGoverne. He said he advised him that unless Mr Ryder had other interested parties who were ready to present an offer he would be signing an agreement for sale and purchase with Messrs Reinke
and McGoverne. He said Mr Ryder advised him he had no other interested parties and that Mr Ryder said so long as he was paid his marketing expenses there would be no claim for sales commission.
[23] In the result he received an invoice for marketing expenses, which was paid in full.
[24] Ms Stewart, office manager for Parkside Developments Limited, the developer of 123 Papanui Road, supports Mr O’Neil’s account. She says her work diary records that on 6 April 2005 she had been instructed by Mr O’Neil to deliver a set of plans for the development of 123 Papanui Road to “the people from the motels across the road”.
[25] Mr Bedford was the project manager for the construction of the apartments at
123 Papanui Road. He recalls that in April 2005 he provided Mr O’Neil’s contact details to Mr Brereton of Merivale Manor, regarding development details. Later, and before the end of April 2005, he provided Mr Brereton and Mr Reinke with copies of the development plans.
[26] Mr Bedford recalls that in a meeting in early May 2005 he and Mr O’Neil, together with Mr Brereton and Mr Reinke, discussed changes to the development to turn residential units into motels.
[27] Finally he said he met with Messrs Reinke, McGoverne and Brereton on various separate occasions to talk about the development. These, he said, occurred throughout May 2005.
[28] In a response affidavit Mr Ryder denies at any time agreeing with Mr O’Neil that the sale to Messrs Reinke and McGoverne would fall outside the agency agreement. He said there was no discussion concerning a possible sale to Messrs Reinke and McGoverne, or an exclusion of such from the agency agreement. Although it was not unusual to make exceptions to agency agreements, he said it was his practice to record any exclusions upon the agreement itself, and that had not been done in this case.
[29] Initially this case was set for hearing on 3 May 2007. Then, and for reasons beyond the defendants’ control, the matter had to be adjourned.
[30] The adjournment was duly granted. Since then the Court has received:
i) an amended Notice of Opposition to the application for summary judgment;
ii) a second affidavit from Mr O’Neil;
iii) a second affidavit from Ms Stewart; and iv) a second affidavit from Mr Bedford.
[31] Each of these was filed the day before this hearing. The amended notice of opposition asserts the oral/collateral agreement with Mr Ryder (that commission would not be payable on a sale to persons with whom there had been prior negotiations) was entered into immediately prior to the agency agreement being entered into.
[32] Mr O’Neil’s affidavit annexes a copy of an affidavit by Mr McGoverne sworn in another proceeding relating to the same property. Mr McGoverne’s affidavit referred to the fact that he began negotiating with Mr O’Neil in about May or June 2005. Mr McGoverne mentioned that at that time Mr O’Neil had already lodged a building consent application. Mr O’Neil’s point was that evidence existed to confirm his view that negotiations with Mr Reinke and others had started well before the agency agreement with Ray White.
[33] Mr O’Neil refers to aspects of the negotiation including his claim that the price to Messrs Reinke and Co was discounted by $30,000 because Messrs Reinke and Co wished to buy all seven units, and because he informed them no commission would be involved. He said he informed Mr Ryder he was going to sell to Messrs Reinke and Co and at that time said he would pay the advertising expenses. In his mind this was reasonable because no commission would be paid to Mr Ryder. He denies advising Mr Ryder on 23 June 2005 that he no longer wished to sell the
property to Messrs Reinke and Co, or that the reason related to tax considerations. Mr O’Neil deposes there were no such tax implications.
[34] Ms Stewart’s second affidavit encloses a copy of her work diary for 6 April
2005, noting she had delivered the plan for the units at 123 Papanui Road to Mr Bedford for Mr McGoverne. Mr Bedford’s work diary notes that on 7 April 2005 he was to take the plans to Messrs Reinke and Co.
Considerations
[35] The issues for me are concise ones. The uncontested evidence is that the exclusive agency agreement was in existence when, on 16 June 2005, a sale and purchase agreement of the Papanui Road property was entered into and signed by Mr O’Neil on behalf of the vendor, and Mr Reinke for the purchasers. This happened in the offices of Mr Smith, solicitor, who had the previous day been instructed to prepare a written agreement.
[36] The agreement was not dated on 16 June 2005. Mr O’Neil requested it not be. In the face of that evidence, Mr O’Neil contends he and Mr Ryder had a bargain entered into at about the time of the signing of the agency by which it was agreed that any sale to Messrs Reinke and Co would fall outside Ray White’s authority to sell. Mr Ryder denies any such bargain. It is a point of significant conflict between the parties. If I cannot clearly resolve it on the affidavits filed then I should refuse the application for summary judgment.
[37] The affidavit evidence supporting Mr O’Neil confirms, I am satisfied, that there had been discussions between Mr O’Neil and Messrs Reinke and Co regarding the Papanui Road property prior to an exclusive agency being granted to Ray White. The extent of those discussions appear unclear, but the fact there was such is not really in dispute.
[38] Also it is clear that the development plans have been lodged for approval prior to June 2005. The building work appeared to be underway before June 2005.
[39] Later, towards the end of June, Mr Ryder and Mr O’Neil had a discussion in which Mr O’Neil offered to pay Ray White’s marketing costs and did subsequently, upon receipt of an invoice for those, make that payment.
[40] Mr O’Neil was likely taken by surprise when, more than six months later, Ray White’s solicitors wrote to the Montgomery Trust demanding payment of commission. His solicitor’s response was prompt and it was dismissive.
[41] Notwithstanding the evidence adduced by and on behalf of Mr O’Neil suggesting the existence of an oral or collateral agreement with Ray White I am satisfied that evidence is inadequate, is inconsistent, and cannot reasonably be supported in all the circumstances.
[42] When demand was first made upon Mr O’Neil in January 2006 his solicitor, on behalf of the Montgomery Trust, replied to Ray White’s solicitors noting the agreement for sale and purchase post-dated the term of the agency. Further, the solicitor stated Ray White did not introduce the property to the purchasers. He said an agent must do more than merely introduce the property, and must be the essential and effective cause of the sale.
[43] The initial position then adopted by Mr O’Neil did not include any claim of a collateral agreement.
[44] Subsequently Ray White’s solicitors wrote again to Mr O’Neil’s solicitors on
13 July 2006 attaching copies of statements by Mr Reinke and Mr Smith which confirmed that although the agreement was not dated during the period of the agency, indeed it was entered into during that period.
[45] It was not until six months later, when a notice of opposition was filed to the summary judgment application which followed, that a position was taken asserting the existence of an oral or collateral agreement. By then it was perfectly obvious to all parties that the terms of the agency agreement did not preclude a claim for commission even if the contracting parties had been in negotiation prior to the establishment of the agency agreement.
[46] The claim of a collateral agreement arose for the first time in the initial notice of opposition filed on 16 January 2007. At that time it was expressed as an agreement “that the first defendant would not be liable to pay commission on any sale to people with whom the second defendant had been having negotiations towards purchase of the property.” In the amended notice of opposition it was pleaded the oral or collateral agreement was made immediately prior to the agency agreement signed on 2 June 2005. As to his reasons for engaging Mr Ryder’s services, Mr O’Neil said he thought there may be others who would want to purchase the apartments. Also, that if he could generate other interest in the apartments he might be able to increase the value of them. He said that at the time of the agency agreement he informed Mr Ryder of other interested parties, indeed he specifically mentioned Messrs Reinke and Co. He also said “it was agreed between Mr Ryder and I that the Montgomery Trust would not be liable for any commission on any sale to Messrs Reinke [and Co] but that the Montgomery Trust would pay for advertising and marketing expenses if the property was sold to them.”
[47] It may be inferred from those various statements:
i) before he had any contact with Messrs Reinke and Co at all, indeed from about 2 June 2005, Mr Ryder was aware, indeed agreed, not to deal with them over the property;
ii) at the time Mr O’Neil says he and Mr Ryder agreed Mr Ryder would have nothing to do with Messrs Reinke and Co (ie about 2 June 2005) it was also agreed Mr O’Neil would meet Ray White’s advertising expenses.
[48] Those statements are inconsistent with the following facts:
i) After Messrs Reinke and Co approached Mr Ryder he supplied them with development details;
ii) Mr Reinke telephoned Mr Ryder on 14 June having seen Mr
Ryder’s advertising sign outside the Papanui Road property.
His associate, Mr McGoverne, said Mr Ryder provided him with the relevant plans and details concerning the property on that date. The following day both met Mr O’Neil by chance. Until then they had not had any purchase discussions with Mr O’Neil (as opposed to previous occasions when there had been discussions concerning Mr O’Neil’s development). They said Mr O’Neil told them to deal with him directly, and that “he would fix up the real estate agent”.
iii) Mr O’Neil does not address Mr Ryder’s claims that when he spoke to Mr O’Neil on 15 or 16 June he said he had gone cold on any possible deal with Messrs Reinke and Co and did not want to deal with them. In his first affidavit Mr O’Neil stated he told Mr Ryder that he had an agreement and would be signing it unless Mr Ryder had other interested parties.
[49] The fact is that as at 23 June 2005, Mr O’Neil had already signed a sale agreement on behalf of the Montgomery Trust and had done so seven days earlier: why the charade of asking Mr Ryder if he had other offers? A reasonable inference is Mr O’Neil did not then mention the names of Messrs Reinke and Co because he wanted to conceal the fact an agreement had already been signed. That was why he requested Messrs Reinke and Co to deal with him directly in negotiations. That is why when the contract was signed on 16 June Mr O’Neil requested then that it not be dated. That is why when, it was later dated, Mr O’Neil through his solicitor initially claimed it had been signed outside of the agency period.
[50] Mr O’Neil described himself as an experienced businessman. That fact is quite apparent in his dealings in the sale of the Papanui Road property. He, too, is familiar with real estate agency agreements. In this case he noted some changes to the usual form. In hand-writing he deleted the usual 90-day agency provision and substituted a 35-day period for agency. He also altered the usual commission calculation provisions and noted instead a commission would be paid at $10,000 plus GST for each unit. But he did not, as an experienced businessman could have been expected to, make any other change to the agency provision incorporating an
agreement of the type he claims was already made at the time the agency agreement was drawn.
[51] A reasonable inference is that in his desire to conceal the fact of the sale he offered to reimburse marketing costs incurred to 23 June 2006. Mr Ryder’s evidence was that at the time this offer was made he had no knowledge of any contract of sale. Certainly he did not know that contract had been signed a week earlier. It was not until about 18 months later Mr O’Neil has, albeit indirectly by his failure to challenge Messrs Reinke and Co’s claims, acknowledged the execution of the
agreement on the 16th of June. Since then Mr O’Neil has not addressed in his
affidavits why he dated the sale and purchase agreement with a date two days after the agency agreement expired.
[52] In summary, the evidence to support an arguable case for a collateral agreement appears at best inconsistent with Mr O’Neil’s own evidence. It is inconsistent with his instructions to his solicitor during 2006. Indeed to me it appears quite contrived, although it is not necessary for me to impose that standard upon it if I am to reject it.
[53] I have already noted that summary judgment is seldom appropriate to deal with claims where there is a significant dispute of material facts contained in the affidavit of evidence. That general view of matters is not without qualification in appropriate situations. As Lord Diplock, in Eng Mee Yong v Letchumanan [1980] AC 331 at 341 (PC):
Although in the normal way it is not appropriate for a Judge to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a disputed fact which calls for further investigation, every statement on an affidavit however unequivocal, lacking precision, inconsistent with disputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.
[54] On its face the agency agreement is complete and unambiguous. The Parole
Evidence rule is relevant.
The general rule is clear. When a transaction has been reduced to or recorded in writing by agreement of the parties, extraneous evidence is in
general inadmissible to contradict, vary, and add to or subtract from the terms of the document.
(See Edwards v O’Connor [1991] 2 NZLR 543 (CA) at 548)
[55] Of course, that general statement of the Parole Evidence rule is not without exceptions, some of which have been long recognised, eg when a prior oral agreement has by mistake not been correctly recorded in the written contract. In that case rectification may be available. An exception may also admit oral evidence where the written agreement was never intended to be the whole contract. Mr Forbes would argue that could be the case here, and that the Court should have the opportunity of hearing the parties being cross-examined upon their respective claims. I do not think so. Mr O’Neil acted to deprive Ray White of commission, and acted also to conceal the fact of a sale. It is against that background, and because of his inconsistency in approach in dealing with the claim for commission, that I reject any basis to hear other evidence to prove other terms.
The claim against Mr O’Neil personally
[56] Whilst the claim against NZTS is clearly established, I am not so sure that the claim against Mr O’Neil personally is capable of proof upon a summary judgment application.
[57] Ray White claims that as a matter of construction Mr O’Neil did, by clause 3 of the agency agreement, accept personal liability for payment of commission.
[58] The relevant part of clause 3 states:
3) WE ACKNOWLEDGE AND AGREE THAT:
…
- We accept personal liability for fees and commission by signing this authority and where the property is owned by more than one owner, we warrant we are authorised to enter into this agency agreement and agree that the liability for fees is joint and several.
[59] It is the rest of the authority form that convinces me it would be unsafe at this time to enter judgment against Mr O’Neil personally. The agreement notes the vendor’s name as Montgomery Trust. It bears Mr O’Neil’s signature after the words
“Owner’s signature”. Likely if the agency had been in the name of a company it too would have borne the signature of a director of the company after the notation “Owner’s signature”.
[60] The form contained no refinement to distinguish the various capacities in which a vendor could have been noted. In each case that provision in clause 3 I have quoted would have remained unaltered. Implicitly any undertaking given by it is given on behalf of the legal entity which owns the property. In the case of a trust, usually the liability of a trustee is limited to the assets of a trust. My clear impression is that Mr O’Neil was signing on behalf of the trust, and not in any way providing a personal guarantee of his own. Quite clearly there is no reference to anybody other than the owner being personally liable for commission.
Judgment
[61] Judgment is entered against New Zealand Trustee Services Limited in the sum of $76,885.29 (being commission claimed, less marketing fees paid) together with interest on that sum calculated from 16 June 2005. New Zealand Trustee Services Limited will also meet the plaintiff’s costs calculated on a category 2B basis, together with disbursements as fixed by the Registrar.
[62] The application for summary judgment against Mr O’Neil personally is dismissed. Upon the question of costs, I direct:
i) These be reserved until matters in issue between Ray White and Mr O’Neil are ultimately resolved by decision of this Court.
ii) If I am required in the future to fix costs, then these are likely to be calculated on a category 1 basis. The issue of Mr O’Neil’s personal liability was a side issue to the more significant point about whether or not commission was at all payable.
Other orders
[63] I direct a telephone conference be convened at 9.40 a.m. on 1 August 2007. By that time it should be clear whether there are any other issues between the parties to be determined in this Court.
Solicitors:
White Fox & Jones for Plaintiff
A J Forbes QC for defendants
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