CASE NOTE QUESTION

Some commentators criticize that the case (judgment) below was wrongly decided. Others disagree and think that it was convincingly decided. Please give your own opinion about the case (whether it was convincingly decided by the judge or not).

Please identify legal issues and comment on the judgement of the case note.

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

FIRST APPLICANT/PLAINTIFF

SECOND APPLICANT/PLAINTIFF

RESPONDENT/DEFEDANT

WHERE HELD

BEFORE

DATE OF HEARING

CITATION

APPEARANCES:

REASONS

1The applicants are executors of their deceased brother's estate. As executors they alTanged for the sale of their brother's home in Hotham Street, Seddon in 2019. The respondent was engaged to market and sell the property. The applicants seek to recover $41,250 being a bonus commission retained by the respondent.

2The propelty sold at auction on 6 April 2019 for $1 The resewe price was Sl Mr Peter Gindy, an employee of the respondent was the estate agent dealing with the applicants on behalf of the respondent. A bonus commission of 30% was retained by the respondent on the amount over the reserve price as provided for in the Exclusive Sale Authority (ESA). The applicants say that, notwithstanding the provisions in the ESA, the bonus commission should only have been charged on a sale Plice over $2.3 million.

3At the start of the hearing the applicants applied to amend the claim to include a claim for unconscionable conduct under section 20 of the Australian Consumer Law (ACL). ^[1] The amendment was not opposed provided proper paniculars of the unconscionable conduct were provided. The amendment was allowed.

4The applicants' solicitor then confinned the applicants' case was based on the respondent having:

a engaged in misleading and deceptive conduct in contravention of s 18 of the ACL; bengaged in unconscionable conduct in contravention of s 20 of the ACL;

[1] Competition and Consumer Act 2010 (Cth) sch 2.

Variations to the Exclusive Sales Authority (ESA)

7The applicants signed the respondent's ESA on 15 February 2019. The ESA was subsequently amended on 25 Febmmy 2019, 5 March 2019 and 19 March 2019. Each amendment was initialled by the applicants.

8An extract of the final version of the ESA with its various amendments is set out below.

9Section 18 of the ACL provides that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive, or likely to mislead or deceive. Consequently, if a person suffers loss or damage because of such conduct, they can recover under s 236 of the ACL the amount of the loss or damage that occurs because of a failure to comply with this requirement.

10The words "misleading" or "deceptive" are not defined. It is well settled law that these words should be given their plain and natural meaning.

I l The test for determining whether conduct is misleading or deceptive is whether the overall impression of the conduct induces or is capable of inducing error. ^[1] The task is to examine the relevant course of conduct as a whole in light of the relevant sunounding facts and circumstances.

12 For the applicants to be successful under section 18 of the ACL there must be a representation made by the respondent, the representation must be misleading or deceptive or likely to mislead and deceive, it must be relied upon by the applicants and as a result loss suffered.

Representations

13The applicants soy the following representations made by the respondent were in breach of s 18 of the ACL.

aOn 15 Febnmy 2019 Mr Gindy, the agent, told the applicants that the proper5.' was worth $2.5 million$3 million (first representation);

bThe applicants were led to believe that the trigger point for the bonus commission was $2.3 million (second representation)

cThe applicants were told by email of the 15 Februmy 2019 that they had control of when the bonus would be triggered and there would be a buffer between the reserve price and where the bonus amount stmts (third representation)

dMr Gindy was silent on the commission that would apply on $2.3 million then on $1.8 million (fourth representation); and

eThere were different tenns for the same thing. mien the applicants signed the ESA it was not clear and the agent did not give a professional explanation about the tenns of the contract because he changed the language and used interchangeable tenns (fifth representation).

First representation on 15 February 2019 Mr Gindy, the agent, told the applicants that the property was worth $2.5 million$3 million

14The evidence of the first representation was as follows:

a Both applicants said Peter Gindy mentioned a sales price estimate for the property of $2.5 million$3 million at a meeting between the parties on 15 Februaryr 2019. He said the property was a builder's paradise. b Ms Febbraro said:

1Before 15 February 2019 she had been in contact with Mr Gindy in relation to the sale of another property; and

1 She currently owned 7 properties having owned 9 properties in the past. She had experience with buymg and selling properties.

dIn cross examination Ms Febbraro said:

1She told Mr Gindy on 15 Fbmary^r 2019 that the capital improved value for the propezty according to the valuation and rates notice was $2, 190,000;

11 She suggested an advemting price of $2.5 to $3 million but Mr Gindy said not to advertise at that price because it was too high. It will scare off potential buyers; and

111 When asked whether the agent's cost was relevant to her choice of agent, she said it would have been but it was not the predominate factor. Other factors were the agent saying the propelty was wozth $2.5 million$3 million, the fact that her brother, being under pressure from his wife, wanted to give exclusive authority to her to deal with the agent and that meant it was difficult for her to go and see other agents.

eMr Aquilina said:

1The pupose of the meeting on 15 Febmmy was to value the propelty although he agreed that Mr Gindy had not been in the property before that day;

n Mr Gindy said they should get $2.5 to $3 million for the propelty because the propelty was so big and a buyer could build multiple prppefiies; and

111 He suggested they advertise for $2.5 to $3 million if that was what the property was worth, but Mr Gindy said to put a lower price on the ESA so as not to scare buyers.

fMr Kevin O'Shea, a friend of Ms Febbraro's said Ms Febbraro told him the agent said he could get $2.5 million$3 million because he deals with developers. ^[2] In an email he received from Ms Febbraro on 8 March 2019 she sentalinktotheonlinelisting. She wrote, "don'tworryaboutprice wehadnocomparable sales for this the agent had to use something but definitely not selling for this".

gMs Febbraro's husband said:

i Mr Gindy came over to his house to look at the family home and he and Ms Febbraro interviewed him and talked about Plice. He asked Mr Gindy to come back and give a value on the family home. At the time they went to other agents. He said, "a lot of them had given an appraisal". The standard commission was 1%; ii He and his wife once owned 9 properties; iii They have rental propenies and Ms Febbraro talks to estate agents; and

iv With sales, Ms Febbraro dealt with real estate agents in the last year and a bit (before Febmary 2019) about future sales and putting properties on the market.

hMr Gindy said:

1He was not asked to value the property on 15 Februaryr 2019. He denied having said the property was worth $2.5 to $3 million;

11He wrote the price of $2.3 million in the ESA based on the capital improved value according to the local council.

15I find it more likely than not that Mr Gindy told the applicants on 15 Febmmy 2019 he believed the property was wofih between $2.5 million$3 million. I accept the evidence of the applicants and Mr O'Shea on this issue. It is common knowledge to anyone who has bought or sold a property that agents usually give an indicative price of what a propelty might sell for.

16I do not accept that the applicants relied upon the representation. I also do not accept that the representation at the time it was made was misleading. Vey little was said by the applicants about these elements.

17I find that the applicants would have engaged the respondent regardless of the first representation having been made. They had personal reasons for not interviewing other agents. Ms Febbraro was experienced m the property market. The applicants knew there were no comparable sales. Neither applicant said they thought the estimate was a price guarantee. Neither applicant gave evidence that they were misled by the first representation. The fact that the propelty sold for less than the estimate price does not make the estimate misleading at the time it was made particularly taking into account the council valuation of the land for rates purposes.

18Even if there had been reliance and even if the representation misled the applicants, it did not cause the applicants any loss. They were under no obligation to sell for less than whatever price they felt the property was worth. In fact, Ms Febbraro's evidence was that she told Mr Gindy on 8 March 2019 she was prepared to rent the propezty for a year if they did not get the price they wanted at auction.

Second representation the applicants say they were led to believe that the trigger pointfor the bonus commission was 52.3 million

19The applicants gave evidence that their original preference was to have a set commission and not a commission plus bonus commission. They wanted a flat 1% plus GST.

20Ms Febbraro's husband gave evidence that in all of their property dealings they had only ever paid a flat rate comnnsswn.

21Ms Febbraro gave evidence that when asked by Mr Gindy what she would like to offer as commission she said "one percent Including GST" Mr Gindy said to her "what about $ 18,000 plus GST regardless of price and then 30 percent plus GST bonus commission on any amount above reserve price" and then he put, "If sold at 2.3. "

22Ms Febbraro said they told Mr Gindy that the bonus was too much. She also asked him why he put $2.3 million instead of 32.5 million which is what he told her the propelty was worth. He replied:

No no we are putting 2.3 as an incentive for our sales people work harder, so if you give us an incentive at a lower price it would make a strive to get a higher price by making - - giving them more opportunity to get the bonus.

23Ms Febbrarro said they did not agree, and Mr Gindy said he would put it in iWiting so they had control of setting it. She was not happy with $2.3 and wanted a higher trigger point but felt they had control over the commission. 24 Before the ESA was signed by the applicants, Mr Gindy sent the applicants an email which read in part as follows:

The bonus amount that we have spoken about in regards to the exclusive auction authority on the 15/02/2019 will only apply at an amount that you can allocate at your choice, and can be more than the reserve price. You are welcome to have a buffer between the reselve price and where the bonus amount starts .

25There is no dispute that as at 15 February 2019, no reserve had been set.

26Ms Febbraro opined:

The buffer means from what he told us was that we can have a reserve price and we can add to it So, for example, if our reserve was 1 .8, we could say we want the bonus comrmssion to stmt off at 1.9.

27It is not in dispute that Ms Febbraro she went through the ESA when she went home on 15 Febmmy 2019. She identified an issue with the duration of the ESA (30 days or 30 days post auction) and raised the issue with Mr Gindy.

28The applicants signed the ESA on 15 Febnmy 2019 with an upper and lower selling price estimate of $2, 100,000 and $2,300,000 and a commission being:

$18,000 +(10% GST) regardless of sale price and 30% + (10% GST) of any amount over vendor's reserve price. Dollar amount of estimated commission $19,800 including GST of Sl ,800. If sold at a GST inclusive of

The ESA stated that the reserve price was "TBC prior to auction".

29The original commission statement m the ESA does not make sense. The full stop before "If' makes it nonsensical. If you take the full stop away; it reads: "Dollar amount of estimated commission Sl 9,800 including GST of $1 ,800 if sold at a GST inclusive of $2,300,000".

30I have found the applicants were told the property was worth between $2.5 million and $3 million by Mr Gindy.

31Ms Febbraro said Mr Gindy told the applicants to put a lower price to advertise the property rather than advertising it at $2.5 million to $3 million otherwise they would scare off potential buyers. Mr Gindy denied having said this.

32Ms Febbraro said Mr Gindy asked her what figures she had for the property and she gave him the council rates valuation. Based on that document he suggested to the applicants that they put a figure of benveen $2.1 million and $2.3 million with the bonus commission set at $2.3 million. This, according to Ms Febbraro is what the applicants did. Ms Fbbraro says there was a verbal instmction by Mr Gindy that the trigger for the bonus was a sale price of $2.3 million.

33Mr Aquilina explained that Nfr Gindy had the blank ESA on his computer screen at the meeting on 15 February

2019 and they worked though the form together. Mr Aquilina suggested the property be advertised at $2.5 million

to 32.3 million if that is what Mr Gindy thought he could get for the property. Mr Gindy told them to put it at a lower price so as not to scare off buyers.

34Mr Gindy said he normally charges commission of $32,000 including $8,000 for marketing. The applicants were not happy with that amount and they negotiated it down to $18,000. He only agreed to $18,000 if there was a bonus commission if he got them more than they expected.

35Mr Gindy said he commented when he was given the council valuation of $2.19 million for the property, that there were no other properties of a similar size. He only put $2.3 million in the ESA based on the council valuation. He denied having put forward a bonus trigger point of $2.3 million.

36Mr Gindy said he told the applicants in the meeting on 5 March that it would be a waste of time adverting the property for $2. I million to 82.3 million. He would never advertise a property without comparable sales. He rang the REIV for guidance and was told to advertise for $1.7 million to $1.8 million. That was the reason he said for amending the ESA on 5 March 2019.

37Mr Gindy agreed that the discussion with the applicants on 5 March 2019 was solely in relation to the advertising price and not in relation to commission. He agreed there was no talk of comrmsslon. When asked in cross examination about the change to the ESA of deleting the figure of "$2,300 000" and replacing it with "$1,800,000", he said there was no point leaving it at $2.3 million if advertising at Sl .8 million. He said when you change the estimated selling price you need to change it in the estimate of commission.

38Mr Gindy said, which is denied by the applicants, that eve1Y time a change was made to the ESA and initialled by the applicants a copy of the amended ESA was given to the applicants. The applicants say they only ever recewed the ESA signed by them on 15 Febmmy 2019.

39Mr Aquilina said he saw Mr Gindy making changes to the ESA on 5 March and he signed those changes but did not read them. He said if he had been gwen a copy of the amended ESA on 5 March, he would have noticed the bonus trigger had changed. Mr Febbraro gave evidence consistent with her brother.

40I find that the second representation was made by MR Gindy. I prefer the evidence of Ms Febbraro and Mr Aquilina where their evidence is Inconsistent with the evidence of Mr Gindy for the following reasons:

aThe applicants' version of events is more credible; b Mr Gindy told the applicants the propelty was worth $2.5 million to $3 million;

cMs Febbraro is experienced in the property market. She is astute as shown by the fact that she reviewed the ESA on 15 Febluary having been provided with a copy after signmg it. She did not want to agree to a bonus commission having never agreed to one in the past. Ms Febbraro would not have agreed to a bonus commission simply based upon the reselve price being exceeded;

dHad Ms Febbraro been provided with a copy of the ESA as amended on 5 March which I find she was not, it is likely she would have reviewed it given her past actions and noticed the bonus commission figure changed;

eThe applicants have no reason to lie about whether they were provided with subsequent copies of the amended ESA;

fThe applicants' evidence that they felt the email of 1 5 Febmary 2019 covered them and gave them control over the commission is not inconsistent with their understanding that bonus commission operated on a sales price over $2.3 million;

gThe ESA completed by Mr Gindy is confusing and makes no sense read literally where the bonus commission is referenced;

hWhen construing the bonus commission part of the ESA as originally signed, if the full stop before "If' is converted to a comma, it supports the applicants' belief that if they sold for 2.3 million, they pay a commission of S 19,800 including GST. It is understandable that the applicants believed the ESA supported their understanding of a bonus commission;

1 It is illogical to think the applicants agreed to pay a bonus commission on any amount regardless of how much over the reserve price given a bonus commission is designed to reward a higher sales result;

j Mr Gindy gave evidence that he explained on 15 February 2019 that the bonus commission is to achieve an incentive to get a higher price. If the bonus commission was to operate on the reserve price alone which was what eventuated based on the respondent's position it would not have the effect of givmg a sales incentive as It was designed to do.

41Mr Gindy's evidence at times was implausible. For example, the parties met on 6 April 2019, the day of the auction, to set the reserve. They met in a coffee shop opposite Gindy's office. i'Vhen first asked whether there were any changes to the ESA on that day Mr Gindy said, "I don't believe so" and "I don't recall to be honest. " He was then taken to the document. The reserve had been inserted in the ESA and the change initialled by the parties with the date "6/4/19". The applicants say they left the coffee shop and were not given a copy of the amended ESA. N'fr Gindy said he walked back to his office, photocopied the ESA and retumed to the coffee shop and gave the applicants a copy of the ESA. The applicants deny this happened. Had Mr Gindy done what he said he did, it is more likely than not that he would have recalled changes being made to the ESA on that day when asked about it when giving his evidence. His lack of recall is consistent with him not going back to his office to photocopy the amended ESA.

Third representation the applicants were told by email of the 15 February 2019 that they had control of when the bonus would be triggered and there would be a buffer between the reserve price and where the bonus amount starts

42The third representation is contained in the email from Mr Gindy to Ms Febbraro which read in part as follows:

Hi Cannen & Mario

The bonus amount that we have spoken about in regards to the exclusive auction authority on the 15/02/2019 will only apply at an amount that you can allocate at your choice, and can be more than the reselve price.

You are welcome to have a buffer between the reserve price and where the bonus amount stmts at the property at 14 Hotham Street Seddon.

43I accept the applicants' unchallenged evidence that they relied on the content of the email m signmg the ESA.

44A sale price of $2.3 million was inserted into the ESA on 15 February 2019 for the bonus commission. It was, however, amended to $1,800,000 on 5 March 2019. The change was dated and initialled by the applicants. The respondent's position is that the figure was to provide a monetmy example commission. It is not the reserve price or the trigger price.

45It is unclear what is said to be misleading about the representation. The representation was made and it was Mue at the time it was made.

46At any time the applicants could have set where the bonus amount started. They did not do so.

Fourth representation Mr Gindy was silent on the commission that would apply on $2.3 million then on $18 million 47 Ms Febbraro gave the following evidence:

aMr Gindy met with the applicants on 5 March 2019. In this meeting the ESA was amended. The estimated selling price was reduced to between $1,700,000 and $1,800,000. The changes were initialled by the applicants. N'fr Gindy did not mention the bonus commission at that meeting or after IS Februmy 2019;

bMr Gindy told her the REIV told him to reduce the price to the worst-case scenario. She was very^r angry and upset by this. He kept insisting and asking if they would sell for $1.6 million or $1.7 million or $1 8 million and each time, she and Mr Aquilina said no. They would not sell below $1 8 million and once that figure was nominated as the worst price the agent would work backwards to set the advertising price;

cShe was misled on 5 March to believe that the change to market price (estimated selling price in the ESA) from $2.3 million to Sl .8 million was for advertising only. She said, "is this for adveltising?" and the agent said "yes"

dMr Aquilina had to leave the meeting on 5 March 2019 early. Before he left Mr Gindy said they had to put the changes of price on the ESA This was distlessing to her because originally, she had been told the property was worth $2.3 million and now the agent was asking for a worst-case scenario of $1.8 million. He told her it was purely for advertising and that she did not have to sell at that price. W^Then Mr Aquilina had to leave Mr Gindy said they had to sign this and he quickly made changes to the ESA and had her and Mr Aquilina initial the changes.

48Mr Gindy accepted that he was discussing the advertising price on 5 March 2019.

49The applicants submit that as a result of the silence they were not able to insist upon giving effect to the email of 1 5 February 2019 or seek to alter the commission structure. It is unclear why they were not able to insist on such things.

50I find there was no obligation on Mr Gindy to explain the effect of the commission structure after the meeting on 15 February' 2019.

Fifth representation there were different terms for the same thing

51Ms Febbraro gave the following evidence about the confusing terms:

So let's go back to 7 prices. We've got the reserve price, we've got the sell price, we got the advertising price, we've got the bonus commission trigger point price. Then he introduced two other terms, the on-market price. Then he talked about the worst case scenario price, and then we had to remember that once we allocated the vendor's reserve we then had to add a buffer for his commission, when he never mentioned commission flu-oughout the whole sales process. The only tne he ever mentioned commission was on the 15th of Febmaw, never mentioned it again, ever. So in our minds we still had 2.3 as the trigger point because that was the easiest reference for me to refer to, where the bonus stalted. He needed to achieve 2.3. If he didn't it wouldn't even come into account. He reduced that at 1.8 when he told us he was reducing it for advefiising puposes only. He misled us at that point because we tmsted him because that is all we spoke about, the advertising price, never mentioning commission.

52Mr Aquilina identified 6 tenns used by Mr Gindy.

53It is submitted on behalf of the applicants that the use of interchangeable tenns was designed to bling the applicants into a state of conftsion which was the eventual outcome.

54Ms Febbraro on her own admission "had to remember that once we allocated the vendor's reserve we then had to add a buffer for his commission." She knew the responsibility to change the bonus structure lay with her and Aquilina as vendors. There was no conmsion on her part about this. Mr Aquilina defened to his sister in the decision making conceming the sale.

55Ms Febbraro was clearly experienced in buymg and selling propefiies and commercially savvy. This can be seen by:

a Her acquisition of 9 properties; bHer sale of numerous properties; cHer renting out up to 6 of the 7 propelties cunently owned or paltially owned by her; and

d Her not agreeing to positions put fonvard by Mr Gindy on numerous occasioning. Ms Fbbraro gave evidence about Mr Gindy trying to persuade her, unsuccessfully, to change her position on occasions. For example, she said on the day before auction Mr Gindy pressured her to reduce the on-market price. She refused.

56It is inconceivable that Ms Febbraro was not familiar with the terms based on her past experience.

57I do not accept that the applicants were confused by the various terms used in the sale process. Ms Febbraro had been involved in the process at least 9 times before. No explanation was provided by the applicants as to why they could not have asked Nfr Gindy for clarification of any tenn they did not understand.

58The alleged fifth representation is that different terms were used for the same thing. The applicants did not give evidence about which of the terms used were for the same thing, what was misleading or what they relied upon which caused them loss. Accordingly, the applicants have not proven their case on the fifth representation.

Section 20 ACL Unconscionable Conduct

59Section 20 of the ACL provides:

(l) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

60The law of unconscionable conduct was set out in the applicants' submissions which I accept as follows:

43.As the High Coult stated in Kavakas v Crown Melbourne Ltd [2013] HCA 25 :

Essential to the principle stated by both Mason J and Deane J in Amadio is that there should be an unconscientious taking advantage by one party of some disabling condition or circumstance that seriously affects the ability of the other party to make a rational judgment as to his or her own best interests . the abiding rationale of the principle is to ensure that it is fair, just and reasonable for the stronger palTy to retain the benefit of the impugned transaction.

44.A person will be under a special disadvantage where the person experiences circumstances "seriously affecting the ability of the person to make a judgment in his or her own best interests" [ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 at

45.In assessing a claim such as this one, it is clear from the established law that the tribunal must look at all of the circumstances of the conduct, the whole course of dealing of the parties [Louth 1' Diprose (1992) 175 CLR 165, v Crown Melbourne Ltd [2013] HCA 25].

61No evidence was given about any disabling condition or circumstance that seriously affected the ability of the applicants to make a Lational judgment to suppolt an Amadio Wpe claim.

62In order to detennine whether conduct is unconscionable, I am assisted by the Full Court of the Federal Court in Hurley v McDonalds Australia Limited where Heerey, Dzummond and Emmett JJ stated:

For conduct to be regarded as unconscionable, serious nnsconduct or something clearly unfair or unreasonable, must be demonstrated. umatever "unconscionable" means in sections 51AB and 51AC, the tenn caries the meaning given by the Shorter Oxford English Dictionaor, namely, actions showing no regard for conscience, or that are irreconcilable with what is right or reasonable. The vanous synonyms used in relation to the tenn "unconscionable" import a pejorative moral judgment.^[3]

63The three grounds of unconscionable conduct relied upon by the applicants are:

aThe agent was begging Ms Febbraro on 15 Febmmy 2019 to let him sell her brother's house (first ground of unconscionable conduct);

bThe agent's standard comment to the applicants was "don't wonyu I'm the expert" (second ground of unconscionable conduct);

cThe applicants were in a state of grieving. They were waiting for probate. A reasonable person would have realised his behaviour by taking advantage of their vulnerable state because he wasn't clear and upfront about how the ESA was written. (third ground of unconscionable conduct).

Evidence offirst ground of unconscionable conduct

64The applicants gave evidence which I accept that Mr Gindy knew the applicants' brother had passed away, that they were to sell his house as executors of his estate and that probate had not yet been granted.

65I do not accept the submission that because of this Imowledge Mr Gindy knew they were grieving. There was no evidence about the applicants' glief and any effect it may have had on them. No reason was proffeled as to why or how it is said the respondent abused the frailty of the applicants in some way that was unconscionable.

66Counsel for the applicants submitted that on assessing that evidence, it is clear that there was some reluctance on the part of the applicants to enter into the agreement with the respondent, but that Mr Gindy was able to overwhelm that reluctance flu-ough his persistence in insisting the applicants agree to the terms.

67The evidence simply does not support such a conclusion. Futhennore, the conclusion is contrary to:

aThe evidence given by the applicants that on 15 Febluuy 2019 Mr Aquilina was under pressure from his wife and wanted to give Ms Febbraro the exclusive auction authority, so it was difficult for her to see other agents;

bMs Febbraro 's evidence that on 8 March 2019 she was prepared to rent the propelty for a year if they did not get the price they wanted at auction; and

cMs Febbraro's evidence about Mr Gindy trying to unsuccessfully persuade her to change her position on occasions. For example, she said on the day before auction Mr Gindy called her to an emergency meeting where for two hours, he pressured her to reduce the on-market price. She refused. She thought he was try^rmg to make his bonus commission based on a lower price and she said no to lowering it. Apart from showing she understood the bonus commission structure, this shows she did not bow to pressure.

68The applicants always had the choice to go elsewhere. They chose not to. Their ability to negotiate terms like the advertising price and the duration of the ESA, which they did on 15 February 2019, is not consistent with persons in such a state of grief that they were somehow acting against ther will. The bonus commission was always subject to the possibility of a buffer being put berween the reserve price and the bonus commission. Signing the ESA with the bonus commission on IS February" 2019 did not cause a loss to the applicants. Any loss was due to them failing to adjust the point at which the bonus operated once the reserve price was set. That was a matter entirely within their control.

69Gindy putting pressure on the applicants to secure a listing is not unconscionable conduct in the circumstances of this case.

Evidence ofsecond ground of unconscionable conduct

70The applicants claim that the agent's standard comment to them was "don't won-yr, I'm the eelt."

71There is no dispute that these words were said. No nexus was advanced benveen the making of such statements and unconscionable conduct. Mr Gindy telling the applicants that he is an expert is not unconscionable conduct.

Evidence of third ground of unconscionable conduct

72The applicants' wlitten submission on the third ground was simply that the conduct is discussed in connection with the first ground of unconscionable conduct.

73For reasons given in response to the first ground, this conduct is not unconscionable conduct. [ ... ]

Conclusion

Having found that the second representation was made and relied upon, the applicants are entitled to recover the bonus commission from the respondent.