Sellers · Template
Course-of-dealing pushback
When the agency has routinely sought your approval on small items but then acted unilaterally on a substantial matter — drafting a vendor warranty, contacting your solicitor, engaging a provider at your cost. NZ contract law recognises that established practice affects how the agreement is interpreted. PCCC Rule 9.1 runs alongside, independent of contract.
When to use this
- The agency has taken a specific action on your behalf that you were not asked to approve.
- Over the listing period, the agency has consistently asked your approval for smaller matters (wording, scheduling, formatting).
- The action has a real or potential cost — legal fees, a binding commitment, a provider engagement.
The template
Hi [agent first name],
Regarding [specific action — e.g., the agency's contact with my solicitor on [date] concerning [subject], or the drafting of the vendor warranty on [date]]:
The pattern of our working relationship since [start of listing date] has been that you have sought my approval before acting on my behalf on substantive matters. Recent examples: [list 2–3 specific occasions where approval was sought — e.g., the wording of the disclosure statement on [date], the open-home timing on [date], the marketing photograph selection on [date]].
On this occasion, the agency took the action without obtaining my prior approval. As a result, I may incur [specific cost — e.g., legal fees from my solicitor, obligation to remediate under the warranty, provider invoice].
Please confirm in writing whether the agency accepts responsibility for any costs arising from this action — yes or no.
If your position rests on a specific clause of the agency agreement, please identify the clause. I note two matters:
- NZ contract law recognises that established practice between parties ("course of dealing") affects how a contract is interpreted and applied. The pattern of your requesting my approval since [start of listing date] has established an expectation that approval will be sought on substantive matters.
- Rule 9.1 of the Professional Conduct and Client Care Rules 2012 imposes a statutory duty to act in the client's best interests. This duty is independent of any agency-agreement clause and cannot be displaced by contract.
Please reply in writing by [date, 5-7 working days].
Kind regards,
[Your name]
What the reply tells you
- Acceptance. "You're right, we should have asked first. We will cover any resulting costs." The matter is resolved. Continue with normal sale processes.
- Specific clause citation. "Under clause [X] we are authorised." The course-of-dealing and Rule 9.1 arguments then apply. If the agency maintains the position, the record supports escalation to an REA complaint or Disputes Tribunal claim.
- Evasion. "We don't understand the question" or "let's just move forward." Record this. Evasion of a written yes-or-no question about Rule 9.1 responsibility is itself significant in any subsequent proceeding.
Legal basis
Course of dealing — a doctrine of NZ contract law recognising that established practice between parties supplements or modifies the written contract. Discussed in Burrows, Finn & Todd, Law of Contract in New Zealand (the standard NZ textbook).
Estoppel by convention — where both parties have operated on a shared understanding, neither may later assert a position inconsistent with that understanding.
PCCC Rule 9.1 of the Professional Conduct and Client Care Rules 2012: "A licensee must act in the best interests of a client and act in accordance with the client's instructions unless to do so would be contrary to law." Statutory duty; not displaceable by contract.
See Selective Approval Theatre for the pattern in detail.