Listing Agent under Cross-Examination

The Listing agent decides to commence an action against his client for commission.

The listing didn’t go well and the property didn’t sell. The Listing agent did next to nothing other than place the property on MLS.

The Listing went for 12 months. The Seller accepted the error here and waited out the 12 months.

Then, he sold the property to a neighbour.

The previous Listing agent claimed that a commission of 5% was owed to him under the circumstances under the “holdover provision”.

The agent claimed that the holdover provision was explained carefully as was every other clause in the Listing.

The Seller’s position was that the holdover clause was never, ever explained or he would have waited out the expiry of the clause so that no commission would be payable.

Cross-examination at trial

At trial, under cross-examination, the Seller’s lawyer’s questioning went like this:

So, you explained the entire Listing in detail to my client?

Yes, of course, I did, I always do!

You pointed out that you wished to obtain a Power of Attorney from my client?

No, I would never do that?

Then why did you present my client with a Power of attorney to sign?

No, I never did?

Let me show you the document! (producing the Listing)

That’s the Listing, there’s no Power of Attorney in there!

Let me direct your attention to Paragraph 10?

Can you please read that to the Court?

I never saw that before!

So, Mr. Listing agent, you are not really familiar with what’s contained in the document!

Yes, I am familiar!

And, you want us to believe that you also explained the holdover clause in detail!


This type of cross-examination doesn’t go well.

Brian Madigan LL.B., Broker

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