Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

Cox v. Baptist [1841] NSWSupC 22

contract, breach of - broker - agency - estate agent, complaints about

Supreme Court of New South Wales

March 1841

Source: Sydney Herald, 2 March 1841

COX V. BAPTIST. - The plaintiff in this case was John Cox, broker, and the defendant was John Baptist, market gardener. The charge was for the sum of £37 10s., being his charge, according to an agreement, of two and a half per cent, for purchasing some property from one William Clarke, at Surry Hills, for the defendant, for which the latter agreed and had paid the sum of £1500. From the cross-examination of the plaintiff's witnesses, it was proved that the plaintiff, on the completion of the bargain, from the vendor received the sum of five per cent, on  the whole purchase money, independent of what he claimed from the defendant. It was also alleged that the plaintiff had received £100 from the defendant, in full of all demands, for the purchase and some other services which the plaintiff had rendered to the defendant. For the defence, Mr. Broadhurst, characterised the case as one of the most scandalous attempts at overcharge ever made by a broker to obtain an exorbitant remuneration for his services, and called upon the assessors to protect the public by refusing the claim; he also submitted that it was the custom for vendor to pay their charges, as had been done in the present case; and he also submitted that it was against law and justice for a man to serve two masters; if such a practice were allowed, it would be far worse than that which the meanest and most despicable members of the rapacious legal profession, would dare to do, viz., to take one fee from the plaintiff and another from the defendant in the same action. He then called a witness who proved that the plaintiff had first gone to the defendant and asked him if he would not purchase the ground, as Clarke had employed him to sell it, when the defendant said he had offered £1400 for it, and after several meetings, they ultimately agreed for £1500, the price paid. Mr. Thomas Dixon proved Cox's handwriting to the receipt for the 5 per cent from from Clarke on the £1500. Mr. Samuel Lyons deposed, that in a land sale without any guarantee to the amount of £1500, [2½] per cent was ample renumeration; he also deposed, that as a land agent, he was not in the habit of receiving payment from both sides, and that without a guarantee, he would consider 7½ per cent an exorbitant charge; he could not say that he knew that it was usual to give a 'bonus', but it might be done. Mr. Blackman also deposed that as a land agent, he knew that the usual charge for land sales without a guarantee was 2½ per cent, which was paid in general by the vendor. Mr. Foster for the defence said he had always seen that where no defence could be set up, it was usual for the parties to deliver a brief, stating that "we have no defence, but abuse, the other as much as possible;" he did not know if such was the brief delivered by the other side, but he was certain his friend had acted upon the principle. He saw no notice of an attempt at fraud to be charged, nor had he any evidence that such could be pleaded, he maintained that the defendant was bound by the specific agreement which he had entered into to pay the money on the completion of the sale. It was also evident that the plaintiff had been at a good deal of trouble about the sale, as it was in evidence that the plaintiff had called three times on the defendant; a great deal had been said about the illegality of the profession taking fees from both sides, it was true they could not sue for both sides, but a case might be referred to them by both sides, and they were entitled to receive a fee from each, he also instanced the case of registry affairs as an instance in which the same party receiving remuneration from both parties wasconsistant with justice, and at the same time was a common custom. His Honor considered that at present he was bound to instruct the Assessors to find for the plaintiff, as the document signed by the defendant, and given by him to the former was evidence of a special agreement. His Honour considered it as being rather a strong circumstance, that when Mr. Cox charged 7½ per cent, respectable auctioneers and land agents only charged 2½; he, however, was bound to tell him, that if the defendant was foolish enough to sign such a document, that he was bound by it as the case was at present, but it might be brought under review afterwards, as by a very salutary provision of the law of England, no man was bound to part with his money for a consideration which was not fulfilled as far as specified by the agreement at the time made when the money was paid. His Honour also expressed a hope, that such cases as the present would make parties cautious as to how they signed documents binding them to pay money. Verdict for the plaintiff, damages £37 10s.

Published by the Division of Law, Macquarie University