Real estate agents Barfoot & Thompson have taken court action to get their commission on the sale of a house in Remuera, Auckland.

Barfoots, which says it is owed $47,643 on the sale, was granted a charging order over the house in Victoria Avenue owned by Albert David John Parker, Elaine Ruth Parker and Philip Christopher Parker.

Barfoots brought the case, without notice, to protect their interests.

Associate Judge David Abbott said in his judgment it appeared on the face of it that the Parkers were trying to avoid paying the commission.

"I am satisfied that the applicant (Barfoots) has established a prima facie case that the respondents (the Parkers) are disposing of property, that this could have the effect of defeating the applicant's claim, and that a reasonable inference from all of the facts is that the respondents have acted with the intention of defeating the applicant's claim," the judge said.

Barfoots currently had an application pending for summary judgment against the Parkers in the District Court for payment of its commission under the sale and purchase agreement, he said.

In essence, Barfoots was claiming that the Parkers had twice varied the sale and purchase without referring to Barfoots, with the intent of defeating the agents' claim for commission.

Judge Abbott said that the first variation the $180,000 deposit was to be held in the Parkers' solicitors' trust account rather than in Barfoots' trust account, was insufficient proof of an intent to defeat the commission claim.

However, the judge said the second variation was more significant.

"The second was to move the possession date forward from 23 November 2009 to the day before the applicant's summary judgment application was to be heard (in the District Court).

"On the papers before the court, the applicant appears to have a strong prima facie claim for summary judgment.

"If the settlement date had not been changed, summary judgment could well have been entered and a charging order obtained well before the date of settlement."

- NZPA