part 2
APPOINTMENT
Subject to the provisions of this Agreement, the Broker hereby appoints the Associate as the Broker’s real estate agent to sell, lease and provide other real estate brokerage services, to solicit additional property listings and customers for the Broker and to otherwise promote the business of servicing the public in real estate transactions, and the Associate hereby accepts this appointment. The Associate agrees to work diligently and to perform his services to the best of his ability. The Associate shall at all times conform to and abide by all rules, regulations and policies of the Broker for the performance of the Associate’s obligations hereunder, as the same may be amended from time to time at the Broker’s sole discretion. The Associate agrees to conduct his business and regulate his habits, so as to maintain and to increase, and not to diminish, the goodwill and reputation of the Broker. For the avoidance of doubt, nothing in this Agreement shall constitute or create a partnership or employment between the Broker and the Associate.
This agreement also provided for the commission to be charged to clients or customers for services rendered by the associate. Although it declared that it was not a document creating a partnership or an employer-employee relationship between the associate and the defendant, I am of the view that the defendant had held out the associate as its agent. In the circumstances, unless the associate’s client was expressly told otherwise, the client was entitled to regard the associate as a servant or agent of the defendant. I am satisfied that such disclosure was not made to either the first plaintiff or the second plaintiff.
9 Mr Loo attempted to show that the second plaintiff was an experienced businesswoman with a real estate agency company called Katz Realty Pte Ltd. Counsel thus wished to persuade the court that she must have not only known what was going on, but also knew that the defendant was not bound by Jeremy’s conduct. The evidence did not support Mr Loo’s argument. I accept the evidence of the first and second plaintiffs and find that they were not professionally familiar with the real estate business of Katz Realty Pte Ltd; and, further, that they had unreservedly relied on the services and expertise of Jeremy. I accept the second plaintiff’s evidence that her business was that of a personnel agency.
10 I accept the evidence of the second plaintiff that had she known the full facts, that is, that Natassha was Mike’s wife; and Mike was not only an ERA agent, but also a Divisional Director and Jeremy’s boss, she would not have agreed to sell her flat to Natassha; and that she would have asked an agent from a different housing agency to act for her. She voiced what I think would be the sentiment of any reasonable vendor, namely, that she would not have trusted an agent who did not disclose that the purchaser he procured was actually the agent’s boss. I also reject Mr Loo’s argument that the plaintiffs sold at the price they wanted therefore they should not be unhappy that the purchaser made a larger profit. That argument missed the point. Jeremy was not entitled to act as he did, namely, placing himself in a position where he might have to act in conflict between his principal’s interests and his own. In any event, the second plaintiff had stated that she would not have granted the option had she known the concealed facts.
11 Chua Khee Hak (better known as “Jack Chua”) was (and still is) the president of the defendant as well as the president of the defendant’s holding company. He was not called as a witness for the defendant and was thus subpoenaed to appear by the plaintiffs as a witness for the plaintiffs. He testified that understanding the facts as disclosed he did not think that Jeremy or Mike had acted unethically. He also testified that by reason of the Associate Agreement, Jeremy and Mike were independent agents whose actions do not bind the defendant. He stated that the defendant’s agents need not disclose the identity of the buyer unless the agent himself has a pecuniary interest, or the defendant would have obtained a financial benefit for itself. He confirmed that no disciplinary action had been taken against either Mike or Jeremy. When Mike and Jeremy gave their evidence they likewise declared that their conduct was not unethical. Their evidence were consistent with that of Jack Chua. Ms Gan Kam Yuin, counsel for the plaintiffs, drew Mike’s attention to the Code of Ethics of the Institute of Estate Agents (“the Code of Conduct”) and showed him that they had provisions that would have required Jeremy to make the appropriate disclosure to the plaintiffs. Mike expressed the view that since Jeremy was not a member of the Institute of Estate Agents he (Jeremy) was not bound by the Code of Conduct. Mike admitted that although he (Mike) was a member of the Institute, he was not in breach of the code of ethics because he was not the plaintiff’s agent. That was the thrust of the defendant’s case – Mike and Jeremy did no wrong for the reasons given by Mike, and in any event, they were independent contractors whose conduct did not bind the defendant.
APPOINTMENT
Subject to the provisions of this Agreement, the Broker hereby appoints the Associate as the Broker’s real estate agent to sell, lease and provide other real estate brokerage services, to solicit additional property listings and customers for the Broker and to otherwise promote the business of servicing the public in real estate transactions, and the Associate hereby accepts this appointment. The Associate agrees to work diligently and to perform his services to the best of his ability. The Associate shall at all times conform to and abide by all rules, regulations and policies of the Broker for the performance of the Associate’s obligations hereunder, as the same may be amended from time to time at the Broker’s sole discretion. The Associate agrees to conduct his business and regulate his habits, so as to maintain and to increase, and not to diminish, the goodwill and reputation of the Broker. For the avoidance of doubt, nothing in this Agreement shall constitute or create a partnership or employment between the Broker and the Associate.
This agreement also provided for the commission to be charged to clients or customers for services rendered by the associate. Although it declared that it was not a document creating a partnership or an employer-employee relationship between the associate and the defendant, I am of the view that the defendant had held out the associate as its agent. In the circumstances, unless the associate’s client was expressly told otherwise, the client was entitled to regard the associate as a servant or agent of the defendant. I am satisfied that such disclosure was not made to either the first plaintiff or the second plaintiff.
9 Mr Loo attempted to show that the second plaintiff was an experienced businesswoman with a real estate agency company called Katz Realty Pte Ltd. Counsel thus wished to persuade the court that she must have not only known what was going on, but also knew that the defendant was not bound by Jeremy’s conduct. The evidence did not support Mr Loo’s argument. I accept the evidence of the first and second plaintiffs and find that they were not professionally familiar with the real estate business of Katz Realty Pte Ltd; and, further, that they had unreservedly relied on the services and expertise of Jeremy. I accept the second plaintiff’s evidence that her business was that of a personnel agency.
10 I accept the evidence of the second plaintiff that had she known the full facts, that is, that Natassha was Mike’s wife; and Mike was not only an ERA agent, but also a Divisional Director and Jeremy’s boss, she would not have agreed to sell her flat to Natassha; and that she would have asked an agent from a different housing agency to act for her. She voiced what I think would be the sentiment of any reasonable vendor, namely, that she would not have trusted an agent who did not disclose that the purchaser he procured was actually the agent’s boss. I also reject Mr Loo’s argument that the plaintiffs sold at the price they wanted therefore they should not be unhappy that the purchaser made a larger profit. That argument missed the point. Jeremy was not entitled to act as he did, namely, placing himself in a position where he might have to act in conflict between his principal’s interests and his own. In any event, the second plaintiff had stated that she would not have granted the option had she known the concealed facts.
11 Chua Khee Hak (better known as “Jack Chua”) was (and still is) the president of the defendant as well as the president of the defendant’s holding company. He was not called as a witness for the defendant and was thus subpoenaed to appear by the plaintiffs as a witness for the plaintiffs. He testified that understanding the facts as disclosed he did not think that Jeremy or Mike had acted unethically. He also testified that by reason of the Associate Agreement, Jeremy and Mike were independent agents whose actions do not bind the defendant. He stated that the defendant’s agents need not disclose the identity of the buyer unless the agent himself has a pecuniary interest, or the defendant would have obtained a financial benefit for itself. He confirmed that no disciplinary action had been taken against either Mike or Jeremy. When Mike and Jeremy gave their evidence they likewise declared that their conduct was not unethical. Their evidence were consistent with that of Jack Chua. Ms Gan Kam Yuin, counsel for the plaintiffs, drew Mike’s attention to the Code of Ethics of the Institute of Estate Agents (“the Code of Conduct”) and showed him that they had provisions that would have required Jeremy to make the appropriate disclosure to the plaintiffs. Mike expressed the view that since Jeremy was not a member of the Institute of Estate Agents he (Jeremy) was not bound by the Code of Conduct. Mike admitted that although he (Mike) was a member of the Institute, he was not in breach of the code of ethics because he was not the plaintiff’s agent. That was the thrust of the defendant’s case – Mike and Jeremy did no wrong for the reasons given by Mike, and in any event, they were independent contractors whose conduct did not bind the defendant.
