Firm taken to court over ‘referral fee' allegedly owed

Otago Daily Times

25-04-2025

A former Bayleys agent has taken the company to court for allegedly reneging on his share of the commission on a $30 million Frankton land sale.
The case, which remains unresolved, features high-profile property developer Kurt Gibbons, a former Aucklander now developing more than 200 homes on the land near the Five Mile shopping centre.
Ashley Fogel claimed he was owed a "referral fee" for introducing the land to Mr Gibbons, who ultimately bought it in October 2023 through his company Gibbons & Co.
At a hearing in the High Court in February, defendants Bayleys Real Estate Ltd, referred to in the judgement as "Bayleys Auckland", asked the court for summary judgement — to resolve the dispute without going to a full trial.
The company argued it had no contractual relationship with Mr Fogel and had not benefitted from him introducing Mr Gibbons to the land.
In the decision, Associate Judge Dale Lester said Mr Fogel was a contractor with the company's Otago offshoot, Bayleys Queenstown, until July 2023, when his contract was terminated because of alleged "unethical conduct" — a claim Mr Fogel disputes.
He was told at the same time if Mr Gibbons went on to buy the land, he would be paid a referral fee amounting to 30% of the local agency's share of the commission.
About a fortnight later, Mr Fogel told Bayleys Queenstown managing director David Gubb Mr Gibbons was interested in the land.
He told Mr Gubb if a sale eventuated, he wanted 50% of the "list and sell" — effectively half the total commission.
Mr Gubb replied: "OK with a 50% commission split."
But the dispute arose when the local agency's sales manager, Steve Rendall, told Mr Fogel in an August email his share would be 25% of the total.
Bayleys Queenstown would receive 25%, "as would have been the case had you remained a salesperson with the business", while Bayleys Auckland would get the remaining 50%.
Mr Rendall told him Mr Gubb had meant 50% of the local agency's share, and 25% of the total commission was a "pretty generous offer" given he was no longer with Bayleys.
Mr Gibbons, who in an affidavit said he had been interested in the land in July, but the price had not been right, went on to buy it after seeing it advertised in October.
In the judgement, Associate Judge Lester said Mr Fogel had an arguable case that Bayleys Queenstown had reneged on his agreement with Mr Gubb on a commission split and dismissed its application for summary judgement.
He also found Bayleys Auckland was not entitled to a summary judgement, because Mr Fogel had an arguable case he was entitled to a commission, regardless of whether he had a contractual relationship with the company or not.
Mr Gibbons had become interested in the land after Mr Fogel introduced him to it, which had arguably "served as a springboard for his renewed interest" when he saw it being advertised in October, and Bayleys Auckland had benefited from that.
The company would have known any agent who introduced a buyer would expect to be paid, and Mr Fogel had no contractual right to be paid by its Queenstown agency, Associate Judge Lester said.
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