Credibility doesn’t matter more than the Law!
The case of D’Atri v. Chilcott (1974) decided by Mr. Justice Galligan is one of the leading authorities on the law of liability for real estate agents.
The vendor listed his property and the agents bought it for themselves. The vendor knew this, but the agents failed to live up to the high principles that were imposed upon them.
The vendor Chilcott refused to complete the deal and D’Altri (the owner of the Brokerage) who employed the two agents, Pitcher and Lalonde sued to get the property.
Look at the comments by the Judge. The Judge believed the agents. The Judge didn’t believe the vendor. But, when it came to making a decision, the Judge went with the law which prevailed over any matters of crtedibility.
Judge Galligan’s comments:
- Mr. Chilcott’s evidence with regard to the second defence is completely preposterous and I do not believe it.
- Mr. Pitcher and Mrs. Lalonde testified that they made no such representations and I believe them.
- Mr. Chilcott testified that Mr. Pitcher told him that he would net $50,000 on the sale before Pitcher knew what, if any, encumbrances were on the property and if so, the amount of the encumbrances.
- For Mr. Pitcher to have said any such thing, he would have had to be crazy and I do not think he was.
- The evidence of Mr. Chilcott in this respect is so improbable that I cannot accept it against the credible evidence of Mr. Pitcher and Mrs. Lalonde to the contrary.
- In order to consider this issue, it will be necessary to review the facts in some more detail.
- Before doing so, it is appropriate to say, in view of the findings of credibility that I made above, that where there are conflicts in the evidence between Mr. Pitcher and Mrs. Lalonde on the one hand, and Mr. Chilcott on the other, I am driven to accept the evidence of Mr. Pitcher and Mrs. Lalonde.
- Indeed, the recitation of the facts as I find them is based upon the evidence of the plaintiff and his witnesses.
- Lest some of the comments and findings which I will have to make appear critical of the plaintiff, Mr. Pitcher or Mrs. Lalonde, there are some observations which I feel I ought to make. I am satisfied that they are honest people and I do not think that they set out to take advantage of the defendant.
- Were the transaction one between persons at arm’s length to one another, I do not think fault could be found with it. In normal arm’s length bargaining, there is no reason why a purchaser should not attempt to get the property at the best price possible.
- In this case, while I do not think that the plaintiff was dishonestly motivated, I reluctantly conclude that in this case he did not demonstrate that priority of concern for his principal that I think the law imposed upon him. I am not at all satisfied that he has demonstrated that the transaction is a righteous one and is the best that could reasonably be obtained for the defendant.
- Having regard to all of the circumstances I am constrained to dismiss the plaintiff’s action. However, having regard to the completely unsubstantiated allegations of misrepresentation contained in the defendant’s statement of defence, I do not propose to allow the defendant any costs of the action.
Comment
So, you can lie and not be believed at all. But, in this case, the Judge punished the vendor by not awarding him costs on his successful trial.
Brian Madigan LL.B., Broker