1. On 19 May 2021, the parties entered into the Agency Agreement to sell the respondents' business ("Business").
2. Wollerman's entitlement to commission is set out in Clause 6 of the Agency Agreement. It provides that commission is payable under various circumstances including if the Business is sold during the exclusive agency period.
3. Sold is defined in the Agency Agreement as '...the result of the making of an Acceptable Offer'.
4. Acceptable Offer is defined as 'means an offer from a Purchaser to purchase the Business...for the Price and otherwise upon terms that may include conditions precedent or conditions subsequent'.
5. Business 'means the Business or any part of the Business referred to in the Particulars...'.
6. The Particulars of Engagement in the Agency Agreement provided as follows:

1. In the Agency Agreement, 'Asking Price' is listed as: $2,000,000 'plus stock at the Vendor's estimated valuation or at any lower sum for the Business and the stock that is agreed to by the Vendor $TBC'.
2. To be eligible for commission, the Business must have sold.

IS THE COMMISSION PROVISION IN THE AGENCY AGREEMENT TRIGGERED BY ONE OR BOTH OF THE OFFERS?

On 25 August 2023, Wollermann informed the respondents that it had received a signed offer to purchase the business for $2,000,000 and provided a copy of that offer. The offer stated:

1. This 25 August 2023 offer was an all-inclusive offer (business and stock). The offer fell short of the respondents' Asking Price. The offer was not an offer of $2,000,000 for the Business plus the amount for stock as noted in the Asking Price in the Agency Agreement.
2. On that basis the commission provision was not triggered for this first offer.
3. There was no evidence before me of any final monetary sum for the provision in the Particulars for 'plus stock at the Vendor's estimated valuation or at any lower sum for the Business'. Nor was there evidence before me for '...stock that is agreed to by the Vendor $TBC.' This is important because the Asking Price in the Agency Agreement is premised on a mutual understanding of the Asking Price for the sale of the Business. Concerning the provision of '$TBC' there was no evidence about who was to provide this information or when it was to be confirmed. Mr David Wollerman and Mr Ian Wollerman, for the applicant, put to the Tribunal that there was no stock. I find this claim by the applicant vague, without substance, and just an opinion. The respondents did not call anyone from the business to give evidence on any matter. No evidence was put to me about any mutual agreement for the agreed price or the Asking Price itself. Accordingly, I cannot find if there was a meeting of the minds or any form of mutuality between the parties for the Asking Price. I consider the Asking Price in the Agency Agreement a fundamental term of the Agency Agreement, and from the best evidence before me, I find only uncertainty with the Asking Price. This impacts directly on the first offer claimed by Wollerman which from the best evidence before me, was also not agreed upon, and so cannot trigger the commission.

On 6 October 2023, Wollermann informed the respondents that it had received an increased offer to purchase the business, for the sum of $2,150,000, and provided a copy of that offer. The offer included the following terms:

Under this 'second offer' the purchase price was stated as: 'The Purchaser will pay to the Vendor the total sum of $2,150,000 (Purchase Price) for the Business and the Assets (including stock). $2,000,000 will be paid at Completion and a further $150,000 will be paid 12 months after date of Completion'. Like the situation with the first offer, I find the purchase price noted in this second offer still not aligned with the Asking Price in the Agency Agreement, nor was there any evidence before me that the parties agreed to any subsequent terms for the purchase price. I find therefore that this second offer did not trigger the commission.

CAN THE RESPONDENTS WITHDRAW FROM THE AGENCY AGREEMENT?

1. I found the two offers do not trigger the commission. I also found uncertainty with the Asking Price in the Agency Agreement.
2. As to whether the respondents can withdraw from the Agency Agreement, I note that under clause 1 of the Agency Agreement, Wollerman, as agent, is the exclusive selling agent for the Business commencing on the date of the Agency Agreement which was 19 May 2021. The clause states that if there is no date stated for the end of the sole agency agreement then the Agency Agreement ends:

(a) in the case of a sale by auction, 30 days after the date of the auction

(b) in any other case, 60 days after the date the agreement is signed by, or on behalf of, the seller of the real estate or business.

1. Clause 2 of the Agency Agreement concerns the continuous agency period and says that unless the vendor gives the agent 30 days' notice in writing the agent is appointed on a continuing non-excusive agency basis being a 'Continuing Agency Period.'
2. On 7 September 2023, more than two weeks after receipt of the first offer, Mr Mangani sent an email to Wollermann which I find to be confirmation in writing that the Business is no longer for sale.
3. On 8 September 2023, Wollermann sent a return email to Mr Mangani that stated:

I note your change of mind, however, I have achieved a sale value / offer of $2 million and pursuant to clause 6 of our agency agreement (copy attached) I am entitled to my commission on the sale of your business.

1. I have found the two offers not valid offers to trigger the commission. The Business was not sold. I accept that by Mr Mangani's email on 7 September 2023, he commenced the 30-day required notice in writing to withdraw from the Agency Agreement. Hence, I find the respondents could have withdrawn from the Agency Agreement 30 days after the 7 September 2023 email.

1. I find the Asking Price to be a flawed term in the Agency Agreement due to uncertainty about stock value. Liability for this fundamental term being flawed rests with both the applicant and the respondents. At no time did the respondents confirm the stock valuation, and the applicant acted on a flawed term of the Agency Agreement, the Asking Price, to then try and pursue offers for the sale of the business.
2. I find no commission due to Wollerman from the respondents. The two offers did not align with the Asking Price in the Particulars of Engagement in the Agency Agreement nor was there any agreement as to any varied or revised terms that came with the two offers. The business was not sold and Mr Mangani withdrew by late October 2023 from the Agency Agreement. Consequently, the proceeding against the respondents must be dismissed.