$34m Wyuna property fight: Agent takes court action over $586,500 unpaid commission

A Queenstown real estate agent who sold two of this year’s top-priced houses for $34 million has gone to court over $586,500 in unpaid commissions.

Statutory demands failed to result in payment, so the agent went a step further to preserve his interest by stopping the further on-sale of a property whose European-based vendor, he says, owes him the money.

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Agent Bas Smith won a freezing order over the on-sale of a Wyuna property at Glenorchy until the commission dispute is resolved.

Wakatipu Realty Group, trading as Ray White Queenstown, went to the High Court at Invercargill against European Tom Welo’s Libra Corporation.

Smith, represented by Ayleath Foote of Duncan Cotterill in Christchurch, wants $586,500 as a 3 per cent commission on the sale of two properties, each for $17m, the decision said.

Smith told the court of his dealings with Welo of Switzerland, Libra’s sole shareholder.

The agent showed the court an agreement entered into by the two. When the commission was unpaid, he issued a statutory demand but Welo applied to have that set aside.

So Smith took a more drastic action: seeking the freezing order over one of the properties he had sold to ensure it was not sold again before he won his commission.

The properties which Smith sold were not identified in the decision but are at the exclusive Wyuna Preserve near Queenstown.

The decision said Welo had raised a number of matters with Smith and suggested the two reach an agreement that “the commission as invoiced recently for lot 22 and 25 would be payable upon sale and settlement of lot 23. This is expected by mid-November”.

But Smith said no such agreement had been reached and he had a different understanding of the situation.

Smith has a good arguable case for the commission, the court ruled.

There was an asset to which a freezing order could be applied, namely the equity in lot 23 which might shortly be converted to the proceeds of a sale.

There was a real risk of disposal of assets. The sole shareholder was based overseas and commission from the sale of the previous two properties was now overdue. It had not been paid out of the proceeds of the two sales, the decision said.

So the freezing order was granted.

In 2014, the Overseas Investment Office granted consent for Libra to buy 5.6ha of sensitive land at Glenorchy’s Wyuna Preserve, in lots 23 and 25 of the high country subdivision.

Libra was the applicant and Tom Petter Andreas Weil Welo of Norway was listed as owning 100 per cent of that company.

Libra wanted the land to build a home and enhance and preserve the natural environment, the application said.

This month, Smith told NZME’s OneRoof he had sold a Wyuna property for $17.5m.

“Smith says he can’t talk about all his sales but reveals he sold a luxury property in Glenorchy for $17m in October and another equally stunning home nearby for $17.5m,” OneRoof reported on November 17.

The $17.5m property is a 754sqm five-bedroom place designed by Mason and Wales architect Hamish Muir on 6.69ha, with shared ownership of an additional 89ha and with exclusive access to 9km of hiking trails.

The vendors listed it four years ago for a record $33m, at the time to be New Zealand’s most expensive. They got just over half what they wanted.

Smith said this month that the properties he had sold were part of the exclusive Wyuna Preserve.

“It’s an incredible property. It was marketed several years ago as the most expensive house in New Zealand,” he said referring to 54 Twin Peak View which Wall Real Estate also listed, but did not sell.

Contacted about the court action and the freezing order last night, he said he would seek advice from his lawyer but could not discuss the case.

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