Ernest Wilson claiming commission for unsold business

[Tapir]

I am waiting for a court date for a claim Ernest Wilson is making for commission, on the basis that I am now working with someone introduced as a potential buyer. However, the sale did not go through due to issues with the landlord causing the buyer to pull out. I gave notice and withdrew my business from sale at this point for unrelated reasons. The arrangement I have with the person who is now running my business would best be described as venue hire and commenced after my contract with Ernest Wilson had ended. I remain the leaseholder and have not sold the business or any of the fittings.

To the best of my understanding, I have not broken the terms of the contract. I have repeatedly asked Ernest Wilson to state which terms I have broken - they will not and I suspect they cannot. Instead they ask the same four questions regarding how the person now operating the business is remunerated. I initially did not answer these on the basis that it is confidential information, but now that they have begun proceedings, on the basis that they would have needed sufficient information to start action - it seems they are now fishing for more information to use in court.

In their claim to the court they state: business / fixtures & fittings had been sold / transferred and / or the premises had been sublet triggering commission.

I have statements confirming that I remain the leaseholder and have not sold or transferred the business or fittings, and the term 'sublet' does not appear in the terms and conditions. In a discussion, they themselves say this is an unusual situation they have not encountered before - it seems logical to me that it is not therefore covered by their terms.

I am continuing to try to reach an agreement with Ernest Wilson in the hope I can avoid court, but it is like talking to a brick wall!

Does anyone have advice? I am currently drafting yet another email...

Please note: I have settled the marketing fees, it is commission for a sale/transfer/sublet they are trying to claim.

[atticus]

Welcome.

It is going to be difficult to give worthwhile advice without seeing your contract with these people, all relevant documents, and understanding all relevant events.

Companies such as this have Draconian terms, which may not always withstand scrutiny by the courts.

[Tapir]

Thank you! These are the relevant terms:

1. The sale/transfer of the said business and/or property during the period of this agency whether or not Ernest Wilson was instrumental in effecting such sale, and even if yourself were so instrumental.

2. The sale/transfer of the said business and/or property at any time to a Buyer/s who have been introduced to the Sellers or have taken or have been given particulars from/by Ernest Wilson 's during the period of these instructions whether or not Ernest Wilson's were instrumental in effecting such introduction.

3. The signature during the period of these instructions by prospective Buyers of a written agreement to purchase the said business and / or property at the price set out by you on page 1 of this agreement or any other price you have approved whether or not you are prepared to sign such an agreement yourself.

4. The finding of a ready willing and able Buyer during the period of these instructions at the price set out by you on page 1 of this agreement or any other price agreed by you whether or not you are prepared to proceed with such sale.

5.The beneficial transfer of property (whether real or intellectual) including but not limited to: the granting or assignment of a lease/licence/tenancy on the premises and/or the shares of a Limited Company.

6. The sale/transfer of the said business and / or property at any time to a buyer who either we or you had negotiations with during the period of these instructions whether or not Ernest Wilson was instrumental in effecting such sale.

7. The sale/transfer of the said business and / or property at any time to a buyer/s where the instruction of a Solicitor / Licenced Conveyancer by the Seller to deal with such sale took place during the period of these instructions.

Points 8 and 9 relate to the freehold, which I do not hold.

And also their definition of Sole Selling Rights:

You will be liable to pay remuneration to us, in addition to any other costs or charges agreed, in each of the following circumstances

if unconditional contracts for the sale of the property are exchanged in the period during which we have sole selling rights, even if the Buyer was not found by us but by another agent or by another person, including yourself; or

if unconditional contracts for the sale of the property are exchanged after the expiry of the period during which we have sole selling rights but to a Buyer who was introduced to you during that period or with whom we had negotiations about the property during that period.

[atticus]

Reading those, clause 5 may apply. Subletting is granting a lease. What do you say to that?

[Tapir]

Ah, that is not clear! Although I have not got any formal subletting agreement with the person running the business, and the lease, utilities, licence and insurance are all in my name.

[atticus]

This drip feeding of information serves to emphasise why I said

It is going to be difficult to give worthwhile advice without seeing your contract with these people, all relevant documents, and understanding all relevant events.