It was a thirty million dollar Queenstown property deal with real estate agent Ashley Fogel now suing Bayleys Real Estate arguing he is entitled to a share of commission having introduced the buyer, even though at time of sale he was not employed by Bayleys.
Several months prior to the 2023 sale brokered by Bayleys Auckland office, Mr Fogel had been dismissed by Bayleys Queenstown office: for unethical conduct Bayleys Queenstown says; grounds Mr Fogel disputes.
The High Court was told Mr Fogel’s contract with Bayleys Queenstown ended early July 2023. Despite his contract stating he was not entitled to any commissions on contracts concluded after his departure, a Bayleys Queenstown email agreed to payment for ‘referrals on current opportunities you are working on.’
Current projects included the potential sale of vacant land next to a new development; Remarkable Residences in Frankton.
Bayleys Auckland had contacted Bayleys Queenstown, seeking help in arranging a quick off-market sale, without the need for an extensive marketing programme.
Mr Fogel, while then still working for Bayleys Queenstown, contacted a Mr Gibbons who expressed interest in the vacant land. He carried out some preliminary inquiries on Mr Gibbons’ behalf. Negotiations stalled on price.
No buyer was found for the intended off-market sale.
Four months later, Mr Gibbons responded to Bayleys Auckland’s advertisement on TradeMe marketing the Queenstown land, agreeing to buy at a price in excess of thirty million dollars.
Bayleys Auckland refused to pay Mr Fogel any share of the commission as a referral fee.
In the High Court, Associate Judge Lester ruled Mr Fogel had no contract with Bayleys Auckland entitling him to a referral fee. And being unaware of detailed email negotiations between Bayleys Auckland and Bayleys Queenstown about potential splitting of commission between the two offices, Mr Fogel could not claim Bayleys Queenstown was negotiating on his behalf.
It is clear that Mr Fogel did contribute to the sale, Judge Lester said.
Mr Gibbons prompt response to the later TradeMe advertising was assisted by Mr Fogel’s earlier work on his behalf when an off-market sale was in the offing.
Mr Fogel has grounds for a quantum meruit claim, Judge Lester ruled.
Quantum meruit is payment for work done benefitting another, where there is no prior contract.
While under no contractual obligation to split its commission with him, Bayleys Auckland benefited from Mr Fogel’s earlier referral, assisting Mr Gibbons as a potential buyer, Judge Lester said.
If no agreement is reached as to how much Bayleys should pay Mr Fogel, a further court hearing is needed.
Fogel v. Bayleys Real Estate Ltd – High Court (21.03.25)
25.089