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[2011] ZAGPPHC 19
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Temoso Trading CC (In Liquidation) v Agenbacht and Others (21071/2009) [2011] ZAGPPHC 19 (11 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG DIVISION, PRETORIA)
Case
Number: 21071/2009
DATE:
11/02/2011
In
the matter of:
TEMOSO
TRADING CC (IN
LIQUIDATION)
......................................................
Applicant
and
ANN
CATHARINA
AGENBACHT
.......................................................................
First
Respondent
MACHAUS
(PTY)
LTD
..........................................................................................
Second
Respondent
YOLANDA
MCINTYRE
ATTORNEYS
...............................................................
Third
Respondent
JUDGEMENT
MNGQIBISA-THUSI,
J
[1]
The applicant is seeking an order in the following terms:
1.1
declaring
that the applicant was the effective cause of the sale agreement
concluded between the first and second respondents and
is entitled to
payment of estate agents commission in the amount of R1 500 000.
1.2
declaring
that the first respondent is liable to the applicant for payment of
the commission in the amount of R1 500 000 plus interest
on the said
amount at the rate of 15.5 per cent per annum from date of
registration until payment as provided for in the commission
agreement.
1.3
that
the third respondent be ordered to release the amount of R1 500 000
currently held by it in trust and be authorised to pay
the said
amount to the applicant.
1.4
costs
of the application.
[2]
It appears that during 2005 the applicant, known before its
liquidation as McComb Estates CC, trading as Realty 1 Elk, an estate
agency, had mandated the applicant to sell her property, remaining
extent of Portion 29 of the Farm Nietgedacht535, Gauteng Province
("the property).
[3]
During October 2005 the applicant, through its agent Mr Delport,
introduced the second respondent as a potential buyer of the
property. As a result thereto the first respondent and the second
respondent concluded an agreement of sale for the property termed
"MEMORANDUM OF AGREEMENT" (the first sale agreement). The
agreed purchase price was for the amount of R6 000 000.00.
[4]
Clause 2 of this agreement of sale reads as follows:
"2.1
This agreement is subject to the suspensive condition that the
Purchaser obtain financing from a financial institution
in the amount
of R 6 000 000 (SIX MILLION RAND) within 90 (ninety) days from the
date of this Agreement. The Purchaser endeavours
to submit the
application timeously and will inform the Seller of the date such
submission is made.
2.2
This agreement is subject to the suspensive condition that the
Purchaser
obtains principle consent for the development of a Township on the
property on or before
1
st
of June 2006.
The
Purchaser undertakes on acceptance of this offer to immediately
appoint a townplanner and obtain within 30 (thirty days) a letter
from the townplanner indicating that in principle no objection to the
granting of the consent for the establishment of the township
is
foreseen.
2.3
The suspensive condition contained in clauses 2.1 and 2.2 have been
stipulated for the exclusive benefit of the Purchaser and
may be
waived by the Purchaser at any time prior to the dates stipulated in
clauses 2.1 and 2.2."
[5]
Furthermore, the agreement provided , inter alia, in paragraph
15.1
thereto
that the seller, being the first respondent, would be liable to pay
estate agents commission to the Applicant as provided
for in the
commission agreement concluded by the Applicant and the first
respondent.
[6]
On the same day that the first agreement of sale was entered
into, the applicant and the first respondent had concluded
a
commission agreement. Clause 1 of the commission agreement reads as
follows:
"1.
THAT the Seller will pay the Agent an amount of R1 500 000,00 (ONE
MILLION FIVE HUNDRED THOUSAND RAND)in Agent's commission;
2.
THAT
the Agent's commission will be deemed to have been earned on
compliance with all the suspensive conditions contained in the
Memorandum of Agreement, entered into for the sale of the Property.
3.
THAT
the Seller hereby undertakes to pay the agreed amount in commission
to VAN DER MERWE & VAN DER MERWE ATTORNEYS on registration
of the
Property in the name of the
Purchaser
of
such
Property."
[7]
In January 2006 when it became apparent to the second respondent that
the 'principle consent for the development of a township
on the
property in compliance to clause 2.2 of the agreement would not be
obtained within the time stipulated in the agreement,
second
respondent wrote to the applicant explaining this position. As a
result on 6 February 2006 the first and second respondents
signed an
addendum to the agreement which reads inter alia, as follows:
"WHEREAS
the Seller and the Purchaser has on the 31
st
of October 2005 entered into a sale agreement in respect of:
The
remaining extent of Portion 29 of the farm Nietgedacht No.
535
Province of Gauteng, Registration Division: JQ
Measuring:
25,9372 h (twenty five comma nine three seven
two
hectares)
Held
by Deed of Transfer: T 21211/1998)
(Hereinafter
referred to as "the Property)
AND
WHEREAS it is evident that the consent for the establishment of a
township on the property will not be obtained before the 1
st
of June 2006 due to the fact that the property currently falls
outside the City Council of Johannesburg's Urban Edge development
Zone;
AND
WHEREAS the parties have agreed to extend the agreement;
NOW
THEREFORE the parties agree to extend and amend the agreement on the
following terms and conditions
1.1
Save
as set out in this agreement the terms and conditions of the
agreement entered into and between the parties on the 31
st
October
2005 remains unchanged.
1.2
Clause
2.1 is deleted and amended to read as follows:
"2.1
This Agreement is subject to the suspensive condition that the
Purchaser obtain financing from a financial institution
in the amount
of R 6 000 000,00 (SIX MILLION RAND) within 30 (thirty) days after
all the suspense conditions in terms of this agreement
have been
met."
1.3
Clause
2.2 is deleted and amended to read as follows:
"2.2
This agreement is subject to the suspensive condition that the
Purchaser obtains principle consent for the development
of a Township
on the property. The purchase price of the property will escalate
with the average consumer price index rate for
the duration of the
period exceeding 1 June 2008 until the date that the consent for the
establishment of a township is obtained."
1.4
The
Purchaser undertakes to pay the Seller a deposit of R 150 000 (one
hundred and fifty thousand rand) within 14 days from the
date of this
agreement, which deposit will be deducted from the purchase price.
1.5
The
Purchaser undertakes to continue negotiations with the relevant town
planners in order to fulfil the suspensive conditions of
this
agreement."
[8]
On 17 April 2007 the first respondent wrote a letter the second
respondent putting it on terms with regard to the finalisation
of the
agreement of sale and indicating that if she does not receive
confirmation by 20 April 2007 that the sale is finalised she
would
have no other option but to cancel the agreement and put the property
back on the market.
[9]
The second respondent responded by confirming that all the
conditions to the agreement have been fulfilled and the sale
finalised.
[10]
The first and second respondents agreed to enter into a new sale
agreement, substituting the first agreement of sale.
[11]
in terms of this agreement ("the second agreement of sale")
the parties agreed, inter alia, that:
11.1
the purchase price of the property will be R6 000 000.00 payable as
follows:
11.1.1
the second respondent would pay a deposit of R1 500 000.00 on the
date that the suspensive condition in terms of clause 2.1
is met;
11.1.2 the second respondent would furnish the first respondent as
security with an approved bank guarantee.
11.2
The
agreement is subject to a suspensive condition that the second
respondent obtains financing in the amount of R4 500 000 from
a
financial institution within 45 days from the date of the agreement
(clause 2.1);
11.3
Estate
agent's commission will be payable by the first respondent.
[12]
The total amount of the purchase price in terms of the second
agreement of sale came to R6 276 440.04 which amount was deposited
into the trust account of the third respondent, being the
transferring attorney. The property was transferred on 14 April 2008
and the first respondent is now refusing to pay the commission agreed
upon with the applicant in terms of the commission agreement
and has
instructed the third respondent not to make any payment to the
applicant.
[13]
It is the applicant's contention that since it had introduced the
second respondent to the first respondent, leading to the
signing of
the first agreement of sale and the Commission Agreement, he was
entitled to be paid by the first respondent the commission
agreed
upon for effectuating the sale of the first respondent's property to
the second respondent. The applicant relies for its
contention on
clause 1 of the commission agreement. Further it was argued on behalf
of the applicant that the conclusion of the
second sale agreement
does not affect the enforceability of the commission agreement
particularly since this agreement also refers
to the payment of
agent's commission by the seller.
[14]
It was submitted on behalf of the first respondent that the applicant
was not entitled to any commission. It is the first
respondent's
contention
that
the applicant had not fulfilled the condition relating to the
establishment of a township on the property in terms of the
stipulated time in the first agreement, being 01 June 2006. Further
that the property was eventually sold on the basis of the second
agreement concluded by the first and second respondent and that it
could not be said that the applicant had facilitated the sale
of the
property. It was argued further on behalf of the first respondent
that the applicant had caused her loss since during the
period that
the principle consent was awaited, property values in the area in
which the property was situated had risen and she
was not in a
position to negotiate for a higher price as she was tied to the
agreement already signed.
[15]
The issue to be determined is whether the applicant is entitled to
commission as per the Commission Agreement. Pivotal to this
issue is
whether the commission agreement remained valid after the first and
second respondents had signed the second agreement
of sale.
[16]
The language used in the commission agreement is clear and simple.
The applicant is entitled to be paid commission of R1 500
000 if it
introduced a buyer to the first respondent and the property was sold
for R6 000000.00. The addendum to the first agreement
of sale
provided that the terms and conditions of the agreement entered into
and between the parties on the 31
st
October 2005 remains unchanged. Further, the second agreement, which
in my view forms part of the transactional process of the
sale of the
property also provides that the seller, being the first respondent
will pay estate agent's commission.
[17]
I am of the view that the commission agreement remained valid even
though the parties had signed a second agreement. Furthermore,
was
obliged to pay the respondent commision. It is a fact is that through
the applicant introducing the second respondent to the
first
respondent, the first respondent and second respondents eventually
entered into an agreement of sale of the property. Nothing
turns on
the first respondent's argument that the applicant did not cause for
the suspensive condition in clause 2.2 of the first
agreement of sale
to be fulfilled by due date. In terms of this clause, the obligation
was on the buyer to fulfil that condition.
Even when it appeared that
the condition would not be fulfilled by the stipulated date, the
first respondent on being approached
by the second respondent did
enter into an arrangement with the second respondent extending the
period of the contract.
[18]
In view of the fact that the applicant facilitated the buying of the
property, and in view of the fact that the first respondent
had
undertaken, in terms of the commission agreement to pay the applicant
estate agent's commission in the amount of R1 500 000,00,
I am of the
view that the applicant is entitled to be paid the stipulated amount
for commission due to it by the first respondent.
[19]
Accordingly an order is made:
19.1
Declaring that the applicant was the effective cause of the sale
agreement concluded between the first and second respondents
for the
sale of the property and is entitled to payment of commission of R1
500 000,00.
19.2
Declaring
that the first respondent is liable to the applicant for payment of
the commission in the amount of R1 500 000,00 plus
interest on the
said amount at the rate of 15.5 per cent per annum from date of
registration until payment as provided for in the
commission
agreement.
19.3
The
third respondent is ordered to release the amount of R1 500 000,00
currently held by her in trust and is authorised to pay the
said
amount to the applicant.
19.4
The
first respondent to pay the costs of this application.
M
NGQI
BISA-THUSI
J
JUDGE
OF THE NORTH GAUTENG HIGH COURT