The
facts of this application are largely common cause..., . I summarize the facts
as follows:In
or about October 2008, the second respondent, as the estate agent, advertised
certain stands for sale on behalf of the first respondent, the seller. The
applicant, as purchaser, responded to the advertisement, and identified one
stand for purchase.He
was advised as ...
The
facts of this application are largely common cause..., . I summarize the facts
as follows:
In
or about October 2008, the second respondent, as the estate agent, advertised
certain stands for sale on behalf of the first respondent, the seller. The
applicant, as purchaser, responded to the advertisement, and identified one
stand for purchase.
He
was advised as to the seller's requirements and stipulations. He met all these,
including depositing the asking price into the seller's bank account, the
details of which he was given by the agent. He paid the second respondent's
commission when he was asked to do so by the agent.
He
duly signed an Agreement of Sale that was prepared by the agent.
The
Agreement of Sale was sent to the seller which declined to sign it, alleging
that at the time it received the Agreement of Sale, and proof of payment of the
asking price, the property in question had already been sold to another
purchaser.
Aggrieved
by the stance adopted by the first respondent, the applicant filed this
application seeking an order compelling the first respondent to transfer the
property sold to him, or in the alternative, to transfer to him an alternative
property of equal value.
Before
I proceed further, I wish to comment on the alternative relief that the
applicant is seeking in this application.
He
contends that if this court cannot compel specific performance, on account of
the property in issue being transferred to a third party, the first respondent
should be compelled to transfer to him a property of equal value.
The
applicant's case is based on contract.
He
alleges that he has a contract with the first respondent. He would want that
contract enforced, hence the order for specific performance, which, in my view,
is properly sought in the circumstances of the claim.
I
am not convinced that the alternative order sought in the matter is competent.
It
is not a remedy that is ordinarily available as an alternative to specific
performance. From the wording of the alternative relief, it would appear to me
that the applicant was essentially seeking damages that would have placed him
in the same position he would have been had the contract been performed.
In
my view, the issue that falls for determination in this matter is simple. It
is: whether, in the circumstances, the
applicant, as purchaser, and the second respondent, as estate agent, brought
into being a valid and enforceable Agreement of Sale that would bind the
seller, notwithstanding that the seller did not append its signature to the
document embodying the terms of the Agreement.
The applicant contends that the seller is so bound,
and that there is a basis upon which I can compel the first respondent, as the
seller, to transfer the land sold to him...,.
