Hampton Property Group v Marx Aurnhammer Werner Johannes

Hampton Property Group, a company marketing property in Singapore, sued Mr Marx Aurnhammer Werner Johannes in Magistrate's Court Originating Claim No 8613 of 2023 for commission on the sale of his unit at Level 4 of Ocean Front @ Sentosa Cove. The claimant's director, Ms Gan, relied on WhatsApp messages of June 2022 in which the defendant agreed she could market the unit and set commission at 1.5% at his asking price, up to 2% above it and down to 1% below it. No estate agency agreement in Form 1 under the Estate Agents (Estate Agency Work) Regulations 2010 was ever signed.

On 23 July 2023 Ms Gan brought a buyer, Mr Alex, and his family to view the unit, with the defendant present. Offers passed through her over the following week, the last being $3.1 million, while the defendant wanted at least $3.2 million net of commission. Around then he advertised the unit on Carousell for direct buyers only. On 31 July 2023 Mr Alex contacted him through Carousell offering $3.1 million; the defendant admitted he realised it was the same buyer. He issued an option to purchase on 15 August 2023, which Mr Alex exercised on 29 August 2023 at $3.138 million. The claimant said Ms Gan was the effective cause of the sale and claimed 1% commission. The defendant denied any binding agreement or that she caused the sale, said any agreement had ended on 31 July 2023, and relied on s 44 of the Estate Agents Act 2010.

1. Whether s 44 of the Estate Agents Act 2010 barred the claim because no agreement in the prescribed form had been executed.
2. Whether an agreement on commission was reached and, if so, whether it was terminated on 31 July 2023.
3. Whether Ms Gan was the effective cause of the sale to Mr Alex.

On s 44, the court first rejected the argument that the defendant had abandoned the point; his remarks at trial and in closing were made in the context of his other defences. It agreed with OrangeTee & Tie Pte Ltd v Ivanka Jiang [2022] SGDC 241 that an estate agent may sue on its undertaking only if the agreement is in the prescribed form and properly executed. An email from the Council for Estate Agencies saying the forms were not compulsory answered a different question, and in any event interpreting s 44 is for the court. That the defendant himself proposed the terms did not take the agreement outside s 44, whose purpose is to secure mandatory consumer-protection terms. This alone decided the claim.

For completeness, the court found that an agreement had been reached with the claimant: Ms Gan asked to market the unit, the defendant agreed and named his rates, and he accepted under cross-examination that he engaged her. It was not ended on 31 July 2023. His explanation that a later viewing by another buyer on 25 August 2023 was merely a "reference" for his other unit was not pleaded and was contradicted by his own messages.

Applying Goh Lay Khim and others v Isabel Redrup Agency Pte Ltd [2017] SGCA 11 and the guide in Grandhome Pte Ltd v Ng Kok Eng and another [1996] 1 SLR(R) 14, the court found Ms Gan was the effective cause. She brought Mr Alex to view the unit, negotiated with both sides, and conveyed an offer close to the final price, all within less than a month of the option being issued. The defendant disclosed none of his correspondence with Mr Alex beyond a belated email and did not call him, so the court drew an adverse inference against his claims of a materially different deal. Had a prescribed-form agreement existed, the claimant would have been entitled to 1% of the sale price.

The Magistrate's Court dismissed the claim entirely, holding that s 44 of the Estate Agents Act 2010 barred recovery of any commission. Costs were left to agreement or, failing that, brief written submissions.