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REAL ESTATE AGENTS AND BROKERS - Fiduciary duties - Exclusive listing - Entitlement to commission

Wednesday, April 28, 2021 @ 6:20 AM  

Lexis Advance® Quicklaw®
Appeal by Wang from the dismissal of his claim for the recovery of a bonus fee paid to the respondent realtors on a real estate transaction and the allowance of the respondents’ claim for commission on a related sale. The appellant used the services of the respondents to purchase three adjacent properties. He agreed to pay the respondents a bonus of $300,000 if they could assemble all three properties, which they did. In addition to the bonus and commission, the respondents charged a $30,000 assignment fee. The appellant subsequently resold the properties at a substantial profit but utilized a different realtor, in breach of the exclusive listing agreement he had with the respondents. One of the respondents forged the appellant’s signature on a disclosure of remuneration form. At the end of the transactions, the appellant took the position the respondents had committed several significant breaches of fiduciary duty owed to him that entitled him to the return of the bonus payment and disentitled them to commission on the subsequent sale.

HELD: Appeal dismissed. The $30,000 assignment fee charged by the respondents did not represent a secret profit as it had been fully disclosed to the appellant. The misconduct of the agent in forging the appellant’s signature was not a breach of fiduciary duty and had no consequence for the appellant. It was open for the trial judge to consider it was not just and equitable for the respondents to be deprived of the profits for the work they performed. The trial judge did not err in not accepting the appellant’s version of events.

Wang v. Laura W. Zhao Personal Real Estate Corp., [2021] B.C.J. No. 398, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., G. Dickson and J.J.L. Hunter JJ.A., March 4, 2021. Digest No. TLD-April262021005