Icon Property Pty Ltd and Anor v Wood [2008] VSCA 123 (26 June 2008)

The Issue:

How can agents make sure they get commission on a re-sale if the first sale fell through?

What Happened?

In the Icon Property case, the Vendors signed a standard REIV Authority which granted Icon Property an "Exclusive Authority Period" of 90 days and a "Continuing Authority Period" of a further 60 days. The property was sold but that purchase fell through because the purchaser's deposit cheques were dishonoured. A second sale was then entered into, but no new Authority was signed. The agent then issued an account deducting commission from both sales. The Vendors disputed this and argued that the agent had not obtained a new Authority appointing it as agent for the second sale.

The Court found that Item 2 of the Authority effectively stated that the Continuing Authority Period only applies if the property is not sold during the Exclusive Authority Period. That wasn't the case here, because the property was sold during the Exclusive Authority Period (i.e. the first sale). As a result, the continuing authority of a further 60 days was not applicable. Also, because the property was sold during the Exclusive Authority Period, the Authority was no longer operational on the date of the second sale.

The Court also held that Section 49A requires an agent to "hold an unequivocal written engagement containing information making it clear the obligations which may follow from it, and signed by the Vendors, before the agent may seek payment in respect of work done". As this wasn't done for the second sale, the agent wasn't entitled to the second commission.

Practical Tip:

If your client's sale falls through, always make sure you enter into a new Sale Authority if the property is going back on the market!

If you require assistance, please give us a call on 1300 205 506 or send an email to sp@sharrockpitman.com.au.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by a member of our Legal Team

For further information contact

Andre Ong

Andre is a Principal of Sharrock Pitman Legal.

He heads our Property Law Group and is an Accredited Specialist in Property Law (accredited by the Law Institute of Victoria). He also deals with Commercial Law. For further information, contact Andre Ong on his direct line (03) 8561 3317.

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However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.

You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE:

(03) 8561 3318

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Commission on a re-sale? Not so fast!

The Issue:

What Happened?

Practical Tip:

For further information contact

Andre Ong

Ask us a question

More on

Property Law

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The basics

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Need help with Probate?

Our expert legal team is ready to take your call!

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Free Property Law webinar -

Land Development and Joint Ventures

Do you need help with Probate?

Our expert legal team is ready to take your call

Commission on a re-sale? Not so fast!

The Issue:

What Happened?

Practical Tip:

For further information contact

Andre Ong

Ask us a question

More on

Property Law

Retirement Village Documents: Important Points to Consider Prior to Signing

What do Victoria’s recent rental laws mean for landlords?

Key changes to the Retail Leases Act (2003)

The basics

Timeframes for Probate in Victoria

Need help with Probate?

Our expert legal team is ready to take your call!

Download our FREE handbook "Managing the Dismissal of an Employee"

Enter your details

Thanks for your interest!

Download our FREE legal guide to starting a charity in Australia

Enter your details

Thanks for your interest!

Download our FREE legal guide to Probates & Estates in Australia

Enter your details

Thanks for your interest!

Could your business do with a “health check”?

Could your Not for Profit organisation do with a "health check"?

About Sharrock Pitman Legal

Get in touch