The F word, the $3.1m Queenstown house sale and the two court cases

The F word was cited in two court cases over a $125,000 commission on a $3.1 million house sale near Queenstown.

A judge weighed up whether Luxury Real Estate’s Terry Spice said “f*** you” or
simply used the F word during a heated discussion with the vendors of a home on Alpine Retreat Rd, Ben Lomond, Ross and Nona James.

The couple entered into a sole agency agreement with Luxury in 2017. The property was subsequently sold for $3,150,000 within the period of the sole agency, although it was the neighbour who brought the buyer – not Spice.

Chivukula Bharadwaja was a resident of Singapore and a friend of the James’ neighbour Madhujeet Chimni, who introduced him to the couple.

When Chimni brought the property to his friend’s attention, Bharadwaja immediately booked a flight to Queenstown to view it in February 2017. He subsequently bought it.

Luxury still issued an invoice to the couple for commission but they refused to pay the $125,787.50, because Spice didn’t bring the buyers.

So Luxury sued the couple for breach of contract due to failure to pay commission.

Then the court cases began, initially the agency taking matters to the District Court then the couple appealing to the High Court. Both decisions ruled in favour of Luxury Real Estate winning its commission.

In the District Court, it was cited that Spice had sworn during dealings over the couple’s house sale to Bharadwaja.

“The evidence that Terry shouted, ‘F*** [Bharadwaja], he is just complicating things … You are too f***ing invested in him … You need to forget about him,’ has the proverbial ring of truth,” Judge Chris Tuohy said.

“However, the swear word ‘f***ing’ is commonly used for emphasis in modern New Zealand, if not in politest society, and there is a significant difference between saying ‘f*** [Mr Bharadwaja]’ and ‘f*** you’. I am not satisfied that Terry used the latter expression.”

The judge decided that when things got heated, Spice stated words to the effect that he could not work with Nona James but that didn’t mean he was not prepared to continue with the agency contract.

The District Court found that aggressive behaviour and swearing were not necessarily a repudiation of a contract and ruled the James couple must pay a commission to Luxury.

In the High Court case heard at Invercargill, the couple counterclaimed against Luxury for damages for breach of fiduciary duty and provisions of the Fair Trading Act 1986.

They sought special damages of $100,000, representing the difference between the sale price ($3,150,000) and the sale price they assert could have been achieved but for Luxury breaches. They additionally sought general damages of $30,000 for stress and anxiety.

But, in the decision out this month, Justice Rob Osborne backed Luxury’s claim to that commission, ruling against the James couple.

However, he did find Luxury Real Estate committed a breach of its fiduciary duty in one regard.

Spice told the Herald on Sunday he did not wish to comment on the case.

Ross James said after the decision: “In light of the commission award, it will probably be surprising to people to hear that Terry Spice had no involvement in the sale of the property to the purchaser, he didn’t introduce the purchaser, he didn’t show the house to the purchaser, he didn’t negotiate with the purchaser, and he didn’t assist the purchaser in preparing an offer.”

Despite instructing the agent to do what they hired him to do, James claimed he and his wife had to do all the work to sell the property.

“Terry Spice was awarded a commission on the basis that he was still our agent. It’s hard to accept that courts consider someone who has sworn and verbally abused you still to be your agent despite the fact that you have written to them to advise that you understand that they said they have walked away from the contract, and that you are fearful of speaking with them and receiving no response to state that there is a misunderstanding or providing any assistance with an expiring offer as you would reasonably expect if someone was still your agent. The courts don’t require an agent to act in accordance with the Real Estate Agents Act.”