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[2016] ZAWCHC 185
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Broll Auctions and Sales (Pty) Ltd and Grobler and Another (4698/16) [2016] ZAWCHC 185 (17 November 2016)
Republic
of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
[WESTERN
CAPE DIVISION, CAPE TOWN]
Case no: 4698/16
In
the matter between:
BROLL
AUCTIONS AND SALES (PTY)
LTD
Applicant
And
GILLIAN
THERESA GROBLER
on
behalf of CHRISTOS
LAMBROU
First
Respondent
GILLIAN
THERESA
GROBLER
Second
Respondent
Judgment
delivered 17 November 2016
LE GRANGE, J
[1]
In this matter the Applicant seeks judgment
against the First and Second Respondents (“the Respondents”),
jointly in
the amount of R1 600 000, being auctioneer’s
commission allegedly due and payable to the Applicant as a result of
a breach
of an agreement between the parties.
[2] The Applicant framed the relief it
seeks against the First Respondent in paragraphs 30 and 31 of its
founding affidavit as follows:
“
30. As at
12 August 2015, Lambrou became liable to pay Broll's commission on
the sale of the Property on the following bases:
30.1 he had sold
the Property to Afristar, who had been introduced to the Property by
Broll during the Mandate Period; and
30.2 he had
interfered with Broll's efforts to market and sell the Property by
engaging with alternative estate agents in relation
to the sale and
marketing of the Property during the Mandate Period.
31. In the
alternative to paragraph 30 above, and to the extent that it is found
that Broll was not the effective cause of the sale
and/or is not
entitled to payment of commission on the bases set out in paragraph
30 above, I am advised that Broll has a claim
for the damages
suffered by it as a result of Lambrou's material breach of the
Agreement, in failing to give effect to the exclusivity
provisions
thereof.
”
[3] The Respondents in opposing the
relief sought deny the allegations made in paragraph [30] of the
founding affidavit. It also
disputes that the Applicant was the
effective cause of the sale of the Property. The Respondents on the
other hand instituted a
conditional counter-application. The
counter-application is conditional in the event the main application
is not dismissed. In
the counter–application the Respondents
seeks an order to confirm the existence of the Settlement Agreement
(“the Settlement
Agreement”) concluded between the
Respondents and the Applicant on 14 August 2015, and secondly, to
direct that the Respondents
pay the Applicant the sum of
R 100 000 pursuant to the terms of the
Settlement Agreement.
[4] The defence raised by the
Applicant, in respect of the counter-claim, is that its Managing
Director lacked the necessary authority
to have concluded the
Settlement Agreement on its behalf. Moreover, according to the
Applicant, the Settlement Agreement is of
no force and effect and
invalid as a result of the no waiver and non-variation clause
contained in the said agreement.
[5] Mr. A Kantor, appeared for the
Applicant and Mr. A M Smalberger, SC appeared for the Respondents.
[6] The factual matrix underpinning
the Application, briefly stated, is the following. The Second
Respondent is the mother and legal
guardian of her son (the First
Respondent). The Property forming the subject matter of the
dispute is registered in the name
of the First Respondent. The Second
Respondent was authorised by an order of Court, to dispose of the
Property on behalf of the
First Respondent. During April 2014, the
Second Respondent appointed an estate agent Ms Swanepoel
(“Swanepoel”) of
the Chas Everitt International Property
Group (“Chas Everitt”) to market the Property which was
valued by Chas Everitt
to be between R 15 Million – R 16
Million.
[7] Swanepoel, in May 2014 introduced
a person named Dan Milner (“Milner”) of Afristar
Properties Pty Ltd (“Afristar”)
to the Property.
Thereafter, Afristar made an offer to purchase the Property from the
First Respondent for the amount of
R9.5 Million. The Second
Respondent rejected the offer as she wanted to clear an amount of at
least R10 Million from the
sale of the property, after the deduction
of commission. According to the Second Respondent, she
anticipated a sale price
well in excess of
R10
million for the Property.
[8] An agent of the Applicant
approached the Second Respondent during the early part of 2015 with
the option to sell the Property
by auction. The Second Respondent
agreed and an agreement to that effect was concluded with the
Applicant (“the Agreement”).
The material terms of the
Agreement were the following:
1.1.1
Broll was granted a sole and exclusive
mandate (“the mandate”) to offer the Property for sale;
1.1.2
The Reserve Price for the Property was
R16 Million; and
1.1.3
The mandate extended from the date of
signature of the Agreement on 1 April 2015 until midnight on 13 June
2015.
[9] The Second Respondent, upon
signature of the Agreement contacted Swanepoel and advised her of the
Agreement with the Applicant.
Swanepoel was also advised that if
anyone showed any interest in the Property during the currency of the
mandate she needs to refer
such a person to the Applicant.
[10] According to the Applicant, on 12
May 2015, it engaged with Milner. Discussions took place regarding
two properties. The other
was termed the Riverview property. Milner
was forwarded a bidder’s pack in relation to the Property in
question. According
to the Applicant the bidder’s pack was send
to Milner on 12 May 2015.
[11] The Respondents and Milner have a
different version. According to Milner, on
10 June 2015 he went to the
Applicant’s offices to discuss the Riverview property. Milner
noticed on one of the boards that
the Property in question was on
auction and merely enquired about it. Later on the same day, an
agent of the Applicant, unsolicited
sent him a bidder’s pack.
[12] The auction took place on 9 June
2015. The Property did not sell at the auction.
[13] The Applicant claims that Milner
attended the Auction on 9 June 2015. This is disputed by the
Respondents and Milner.
[14] It is not in dispute that after
the unsuccessful auction, further discussions took place between
Milner and the Applicant during
June to July 2015. There is a dispute
whether the discussions were specifically about the Property as
opposed to the Riverview
property.
[15] On the Applicant’s version,
after the auction and during the period June 2015 and 12 August 2015,
it continued to market
the Property. Moreover, it continued to engage
Milner and the Respondents in an attempt to sell the Property.
According to
the Applicant as a result of direct discussions between
its agent, the Respondents and Afristar, Milner on behalf of Afristar
indicated
its intention to make an offer to the Respondents in the
amount of R 9.5 Million which would be subject to a 60 day due
diligence
period. According to the Applicant there were also other
buyers interested in the Property. The Applicant further states that
despite
its efforts, Afristar did not provide the Applicant with a
formal offer to purchase the Property. To this end, the Applicant
relies
on an e-mail send to Milner dated 6 August 2015, wherein it
was recorded that Afristar should increase their offer to the
Respondents
between R 10 – R 10.5 Million (excluding commission
and transfer duty) as there are other interested parties at around R
10.5 Million. Attached to the e-mail was also an offer to purchase
document for completion by Afristar.
[16] According to the Applicant, on 12
August 2015, its agent contacted Milner to discuss the Property and
to advise him and Afristar
that the Respondents were considering an
offer from another interested party. However on the same day, Milner
directed a formal
offer to purchase the Property through Swanepoel, a
competing estate agent, to the Respondents. The Respondents accepted
the offer
to purchase and as a result breached the terms of the
Agreement by engaging an alternative estate agent during the mandate
period,
despite having granted the Applicant the sole and exclusive
mandate to market and sell the said Property. Moreover, the Applicant
claims a sale of the Property would not have eventuated without its
agent’s efforts.
[17] The Respondents in the answering
affidavit denied inter alia that; the property was marketed by
another estate agency in the
period of the sole mandate; the
Applicant introduced Milner to the Property; Milner attended the
auction on 9 June 2015 and that
the Applicant was the effective cause
of the sale of the Property.
[18] According to the Respondents,
Swanepoel initially introduced Afristar to the Property in May 2014.
Thereafter, Swanepoel presented
an offer to purchase from Afristar
for R 9.5 Million. This offer was rejected. The Respondents stated
that they wanted to clear
an amount of R10 Million and furthermore
hoped to achieve a selling price well in access of R 10 Million for
the Property.
[19] It is not in dispute that the
Applicant enjoyed a sole and exclusive mandate between the periods
April 2015 to midnight on
13 June 2015. On the Respondents version
Swanepoel did not market the property during the sole mandate or for
that matter any other
estate agent, other than the Applicant.
According to the Respondents, Swanepoel was advised to refer
any interest in the
Property during the currency of the sole mandate
to the Applicant. To this end an email dated 7 May 2015 was put up as
evidence
to support the Respondents’ version that Swanepoel
indeed referred a potential buyer to the Applicant.
[20] The Respondents further recorded
that the Applicant, to the extent that it continued to market the
Property, was outside the
sole mandate period. Furthermore, the
Applicant, despite all the discussions that took place, insisted that
Afristar increased
the offer it wished to make for the Property, and
that the terms proposed by Afristar should be more onerous so as to
bring them
in line with the auction terms. Moreover, the Applicant
refused to discuss the issue of commission with Afristar and never
put
any offer from Afristar to the Respondents.
[21] The Respondents also state that
at the same time the Applicant was pushing the Second Respondent to
accept an offer to purchase
from an entity known as Pixie Dust
Trading 24 (Pty) Limited trading as StandOut Properties. According to
the Respondents, it appears
that the Applicant was not keen to put
the Afristar offer to them because it wished StandOut Properties and
Afristar would become
involved in a bidding war for the Property.
[22] According to the Respondents,
given the Applicant’s failure to present any offer from
Afristar to the Second Respondent,
Milner was left with no
alternative but to approach Swanepoel and to ask her to present the
offer of Afristar to the Respondents.
According to the Respondents,
at the time Swanepoel presented the offer, the sole mandate of the
Applicant had expired.
[23]
Mr. Kantor accepted there are arguably some genuine disputes of
facts, but was adamant in his submissions that the main issue,
as who
the effective cause of the sale was, can be resolved on the
undisputed facts. According to Mr. Kantor the undisputed facts
clearly established
that
as a result of the
Applicant’s efforts and resolve, the parties started to
negotiate on a realistic basis which effectively
caused the sale of
the Property.
It was further argued that the valuation
of the Property by Chas Everitt was way off the mark, unrealistic and
the involvement
of Swanepoel was limited and of no causative effect.
Reference was also made
to the dictum in
Gordon
v Slotar
1973 (3) SA 765
(A) and
Basil
Elk Estates (Pty) Ltd v Curzon
1990 (2) SA 1
(T), to advance the
argument that the mere first introduction of the Property by an
estate agent will not always suffice to determine
who was the most
instrumental in securing the sale. In both matters referred to above,
it was essentially held that the first introduction
by the estate
agent had been outweighed by intervening factors as to make the
initial introduction relatively unimportant.
[24]
The two main contentions by Mr. Smallburger were firstly, that the
Application should to be dismissed on procedural grounds.
It was
argued that the Applicant ought to have realised when launching the
Application that the matter could not be determined
on paper by
reason of the numerous disputes of fact bound to develop and that the
disputes of facts in the present instance are
sufficiently serious
and should have been referred to trial.
[25]
Secondly, according to Mr. Smallburger, the parties entered into a
Settlement Agreement that is dispositive of the dispute
between the
parties.
[26]
Our Courts have repeatedly acknowledged how difficult it is, when
there are competing estate agents, to determine who the effective
cause of the sale that eventuates is. Moreover, it was further
acknowledge that in certain circumstances the principal may be liable
to pay commission to both agents where it is impossible to
distinguish between the efforts of one agent and another in terms of
causality or degrees of causation. In this regard see
Wakefields
Real Estate (Pty) Ltd v Attree and Others
2011 (6) SA 557
(SCA)
paragraphs [14] and [18], and the cases referred to therein.
[27]
The present matter is no different as to its difficulty in
determining who the effective cause of the sale that eventuates
was.
It
is trite that in
‘
Motion
proceedings, unless concerned with interim relief, are all about the
resolution of legal issues based on common cause facts.
Unless the
circumstances are special they cannot be used to resolve factual
issues because they are not designed to determine probabilities.
It
is well established under the Plascon-Evans rule that where in motion
proceedings disputes of fact arise on the affidavits,
a final order
can be granted only if the facts averred in the applicant’s […]
affidavits, which have been admitted
by the respondent […],
together with the facts alleged by the latter, justify such order. It
may be different if the respondent’s
version consists of bald
or uncreditworthy denials, raises fictitious disputes of fact, is
palpably implausible, far-fetched or
so clearly untenable that the
court is justified in rejecting them merely on the papers.
’
(National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) para 26.
See also
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3)
SA 623
(A) at 634-635
;
Fakie
NO v CCII Systems (Pty) Ltd
[2006] ZASCA 52
;
2006 (4) SA 326
(SCA) paras 55
and 56;
Thint (Pty) Ltd v National
Director of Public Prosecutions & others; Zuma v National
Director of Public Prosecutions & others
[2008] ZACC 13
;
2008 (2) SACR 421
(CC) para 8-10.)
[28]
In the present instance, there are major areas of dispute having
regard to the basis on which the Applicant asserts that it
is
entitled to the relief it seeks. The first is who introduced Milner
to the Property and what was the ultimate result thereof?
The
Applicant claims the Property was introduced to Milner in May 2015.
On the Respondents version it was Swanepoel who introduced
the
Property to Milner in 2014. Moreover, Swanepoel not only introduced
Milner but also caused Afristar to submit an offer to purchase
to the
Respondents which was initially rejected for the reasons already
advanced by the Respondents. The circumstances under which
the
Applicant claims it introduced the Property to Milner in 2015 is in
itself contentious. According to Milner, the Applicant
did not
introduce the Property to him but he saw it on a notice board when
visiting the Applicant to discuss the Riverview property
and merely
enquire about it. Thereafter a bidder’s pack was forwarded to
him unsolicited. According to Milner, the Applicant
mostly engaged
him in respect of the Riverview property. The claim by the Applicant
that the Respondents had sold the Property
to Afristar whilst it
introduced the Property during the period of the sole mandate is a
genuine dispute of fact.
[29] The second major area of dispute
is whether the Respondents engaged with alternative agents during the
Applicant’s sole
mandate period. The Respondents denied that
they engaged with other agents during the sole mandate period. To
this end an email
dated 7 May 2015 was put up as evidence to support
the Respondents’ version that Swanepoel indeed referred a
potential buyer
to the Applicant. The Respondents also denied that it
breached the Agreement by failing to give effect to the exclusivity
provisions
thereof. According to the Respondents, the extent to which
the Applicant continued to market the Property, was outside the sole
mandate period. The claim by the Applicant that the Respondents
interfered with its efforts to market and sell the Property is
therefore a serious disputed fact.
[30]
It is indeed not in dispute that the Applicant forwarded a bidder’s
pack and an e-mail dated
6 August 2015, wherein it
was recorded that Afristar should increase their offer to the
Respondents to between R 10 – R 10.5
Million (excluding
commission and transfer duty) and that there are other interested
parties willing to offer around
R 10.5 Million and attached an offer
to purchase document for completion by Afristar, to Milner.
[31] The Respondent however, denied
that these efforts were the causa causans of the sale. According to
the Respondents, the Applicant
refused to discuss the issue of
commission with Afristar and never put any offer from Afristar to the
Respondents. According to
the Respondents, the Applicant was pushing
the Second Respondent to accept an offer from StandOut Properties and
as a result was
not keen to put the Afristar offer to them because it
wished StandOut Properties and Afristar to become involved in a
bidding war
for the Property.
[32] According to the Respondents,
given the Applicant’s failure to present any offer from
Afristar to the Second Respondent,
Milner was left with no
alternative but to approach Swanepoel and to ask her to present the
offer of Afristar to the Respondents.
According to the Respondents at
the time Swanepoel presented the offer, the sole mandate of the
Applicant had also expired.
[33]
Much has been made of the fact that Chas Everitt valued the Property
between R 15 - R 16 Million. According to the Applicant
this was ‘way
out’ and it was as a result of its
wisdom and business
acumen that created the environment for
the
parties to start its negotiations on a realistic basis which
effectively caused the sale of the Property
. The contention
that the Property was initially over-valued does not withstand
scrutiny. On the Applicant’s own version,
the Agreement
recorded that the reserve price of the Property shall be R 16
Million.
[34]
I am acutely aware of the caution sound by Van den Heever JA in
Webranchek
v L K
Jacobs
& Co, Ltd
1948
(4) SA 671
(
A)
at 679 where the following was said: ‘
[A]
Judge who has to try the issue must … decide the matter by
applying the common sense standards and not according to the
notions
in regard to the operation of causation which “might satisfy
the metaphysician”[…]. The distinction
between the
concepts causa sine qua non and causa causans is not as crisp and
clear as the frequent use of these phrases would
suggest; they are
relative concepts. […] It stands to reason, therefore, that
the cumulative importance of a number of causes
attributable to one
agent may be such that, although each in itself might have been
described as a causa sine qua non, the sum
of efforts of that agent
may be said to have been the effective cause of the sale.’
[35]
In my view, and contrary to the Applicant’s believe, the sum of
the undisputed facts in this instance can hardly be regarded
as the
effective cause of the sale on its own. As was stated in
Wakefields
Real Estate
, supra at 561 I, that ‘A commission agent is
paid by results and not by good intentions or even hard work’.
[36]
A further major dispute between the parties is the question whether
the Managing Director of the Applicant had the necessary
authority to
bind the Applicant that led to the conclusion of the Settlement
Agreement.
[37]
For all these stated reasons, the Applicant must have foreseen the
numerous disputes of facts which have arisen and which could
not be
resolved by way of motion proceedings. In this instance, the
Applicant had knowledge of the disputes of fact but nevertheless
persisted to proceed on motion. The main application in my view
should never have been brought by way of application and falls
to be
dismissed.
[38]
The counter-application is conditional in the
event the main application is not dismissed. As the main application
falls to be dismissed
it is in my view unnecessary to decide the
counter–application.
[39] In the result, the following
order is made:
The Main Application is dismissed with
costs.
_________________
LE
GRANGE, J