Belle agent Tim Foote's Kirribilli auction came with cooling off conditions: Supreme Court

There was a landmark Supreme Court ruling last week on what constitutes a sale under auction conditions. It follows a $5.7 million sale of a Milsons Point penthouse where the regretful purchaser served a rescission notice shortly after for the return of their $570,000 deposit.

Justice Pembroke was not impressed with the evidence of Belle selling agent Tim Foote (pictured above), nor the auctioneer, Andrew Robinson.

There was just one registered bidder who turned up in May last year when Ms Ma offered the 15th-floor apartment at 88 Alfred St South for onsite auction.

Just prior to the scheduled 10.30am start, Foote took Daniel Francis and Yingyin Huang upstairs to seek agreement on the price from the couple. The sales team went up and down until about 11.10am with the team thanking the crowd for their patience. “The full show isn’t going to take place just now,” Robinson eventually told the crowd.

His Honour noted some of Robinson’s affidavit was not “plausible or probable’’, adding it included “a regrettable fabrication’’.

“I did not regard Mr Robinson as a satisfactory witness,” he said, then noting the next witness, estate agent Foote, “was even less satisfactory’’.

“While Robinson was disarmingly frank, sometimes against the vendor’s interest without appearing to realise it, Foote was frequently non-responsive and sometimes evasive.”

Ms Ma sought to retain the $570,000 but the judge concluded that there was no public auction in the sense intended by Section 66T (c) and no passing in of the property.

So the sale later that day was not under the standard no-cooling off auction conditions.

His honour found Foote and Robinson clearly believed that the most effective way to achieve the best possible price for the vendor was to enter into private negotiations with the defendants, rather than by conducting an auction in which there was only one registered bidder and having the property passed in.

"Their statements to the effect that the private negotiations with the defendants were designed to avoid ‘stress and embarrassment’ to the defendants, were disingenuous in the extreme."

This article was first published in the Sunday Telegraph.