Challenge
A client had signed a brokerage agreement under which, if they ultimately did not proceed to sign a final sale and purchase contract for the selected property, the broker was entitled to retain the paid deposit as a contractual penalty. On reviewing the agreement, we established that the clause was unfair within the meaning of the Consumer Protection Act — it imposed a disproportionate sanction solely on the consumer, without any corresponding obligation on the broker in the event of non-performance on its part.
Solution
We notified the broker in writing that the clause was contrary to the Consumer Protection Act and therefore void, meaning there was no legal basis for retaining the deposit. We indicated that should the broker refuse to return the sum, we would be compelled to bring a claim, which would result in additional court costs for the broker. We supported the client's position with court practice from materially identical cases between consumers and property brokers.
Result
- Out-of-court settlement reached between the client and the broker
- Paid deposit returned in full
- Court proceedings and the associated costs and delays avoided