Hi all.New to sight and this is my first post.Would greatly appreciate some advice re an auction gone wrong.
Short story is a gentleman has bought my property in qld at auction.4 week contract,10% down not subject to finance or building etc.Stock standard contract.
First problem was he only paid $1000 on the day as it was a saturday and he promised to pay the rest to selling agent on the monday.No joy.Four weeks went by,we extended for another week but nothing.
Should we A:Resell and go him for the diff if any
B:Sue for breach of contract(which means we can not resell until all sorted)
C:Walk away and possibly lose $$
Also has anyone actually been through the courts to try and recoup losses from the situation above.
To confirm:We are not trying to get any extra out of this guy.just don,t want to be out of pocket ourselves.
Thanks in advance.
PS we attended Exchange last friday and he was a no show1 Having exchanged @ the auction, your agent is responsible for ensuring that all the conditions of exchange were met. Obviously, he did not do his duty and may be liable in part.
2 do you have a solicitor or conveyancer? What is their position? Why have they not ensured that the deposit was paid in full when you advised only part deposit was received?
3 your solicitor will need to issue a notice to complete to the purchaser about 2 weeks after the default. What is your solicitor doing?
4 is the buyer legitimite?Appreciate swift reply.Agent did try to chase the guy up.They knew him and reluctantly agreed to let him pay 1k on the saturday of auction and the balance on the monday which he swore black and blue would happen.Notice to complete was issues to the best of my knowledge but the guy kept stalling asking for extensions for finance(even though contract not subject to finance)
At the end of the day we have him bang to rights for breach of contract but wondering if it is worth the cost and stress to take it to court.
Also how long before we could physically see any money from the guy even if courts rule in our favourI did hear of a case where a property was sold – contract of sale but NO deposit was taken. This was not an auction. The buyer did not come up with the money. The place was sold again. The agent in this case was held in breach. I am not sure what happened to the buyer. The fact is that if he – your buyer does not have money- it doesn’t matter much what you do- you wont get anything out of him. I am not sure that you cant sell in the mean time. The buyer has breached the contract and you can end it on that point. Best thing to do is to contact “Consumer Affairs” in your state- I think it might be “Office of Fair Trading” for you before you engage a solicitor. Having been through some messy legal issues- they cost a lot and I think you have to be wary that they are not doing extra work that costs you more but wont get you more back in court. I have represented myself in court too- and won at no cost to me. Know your rights and know your facts. The $1000 on the day with a promise to bring the rest on Monday is fairly common. Not turning up with the rest of the cash is not.
Welcome bullsta. Ashame it couldn't be under better circumstances.
The Purchaser bought under 'Auction Conditions' which means he signed an 'unconditional contract'. Basic contract law 1.01 states that for an (unconditional) contract to become binding 'consideration' must take place. Consideration is money changing hands between seller and purchaser – in this case a $1000 deposit. The amount of deposit is irrelevant in most cases as long as a deposit has been paid then consideration under contract law has been met. The reason a 10% deposit is usually required at property auctions is to make it more difficult for a purchaser to simply walk away. There is the possibility that your real estate agent, who has a fiduciary duty of care to you the vendor, could be held partly/substantially liable for accepting a deposit that was clearly not enough. This is black and white – the Purchaser is bound to fulfill his obligations under the contract. He has breached these conditions. You must talk with a lawyer as you will now have the legal recourse to sue the Purchaser (and possibly the agent and his/her professional indemnity) and claim both specific and general damages for your losses.
Thanks one and all
Hi Bullsta,
Anthony has noted your remedies perfectly.
You really should speak to an experienced lawyer about the case.
Any Court action may involve significant costs and is not easy.
You should weigh the costs with the potential gain.
What are the chances in recovering the loss suffered (the 10%) and any difference if the property is resold?
Does the purchaser have any assets? You would hope so, if he was buying the property.
You certainly could also consider the agent's professional inmdemnity insurance.
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