Case C · Nationwide pattern · April 2026
Selective Approval Theatre: when micro-consent masks macro-decisions
Over weeks of a listing, the agency has asked the vendor's approval for minor matters: disclosure wording, open-home timing, marketing copy. Then, on a substantive matter — contacting the vendor's solicitor to coordinate a vendor warranty — the agent acts unilaterally. The solicitor bills for time. When challenged, the agent cites a clause of the agency agreement as pre-authorisation. NZ contract law and PCCC Rule 9.1 provide a vendor response.
Pattern
The establishing conduct
Since the agency agreement was signed, the agent has routinely sought the vendor's written approval before taking action. The items have been small: the exact wording of a specific disclosure sentence, the photographs selected for the listing, the date and time of open homes, the draft of a marketing description. Each item was put to the vendor for review before being acted on. The pattern created an expectation: approval is sought before action.
The divergent action
A buyer raises a specific concern during a pre-settlement negotiation. The agent proposes a "vendor warranty" — a commitment in the sale and purchase contract for the vendor to remediate specific items before settlement. The agent drafts the warranty. Rather than asking the vendor to review, the agent sends the warranty directly to the vendor's solicitor for the solicitor's comment. The solicitor, billing hourly, reviews the warranty, raises points, corresponds with the agent — generating several hours of billable time. The vendor later sees the invoice.
The defence
When the vendor questions the unilateral contact and the resulting bill, the agent points to a clause in the standard-form agency agreement: "The agency may communicate with the vendor's solicitor on matters relating to the sale." The clause is genuinely there. The vendor signed the agreement. On the literal words, the agent has a defence.
The question is whether the literal words are the end of the matter.
Legal basis for the vendor's position
Course of dealing
NZ contract law recognises that established practice between the parties can supplement or modify the written agreement. If the agency has consistently sought approval before acting over a sustained period, the course of dealing establishes an expectation. A contract clause permitting broader action does not displace that expectation unless the agency specifically re-invokes it with notice.
Burrows, Finn & Todd's Law of Contract in New Zealand (the standard NZ textbook) discusses course of dealing at length. It is not an override of the written contract. It is a basis for interpreting the agreement in the context of how the parties have actually worked.
Estoppel by convention
Where both parties have operated on a shared understanding — even unwritten — neither can later assert a position inconsistent with that understanding. If the agency's routine practice has communicated "we will seek approval," and the vendor has relied on that practice, estoppel by convention may prevent the agency from later asserting broad pre-authorisation.
PCCC Rule 9.1 — independent of contract
Rule 9.1 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. A clause that purports to authorise action against the vendor's interests is unenforceable to the extent of the conflict. Incurring unnecessary legal fees on the vendor's account is not in the vendor's best interests.
Response template
The vendor's effective response has a yes-or-no structure that forces the agency onto the record.
Hi [agent], regarding the agency's contact with [solicitor] on [date] concerning [subject]:
The pattern of our working relationship since [start date] has been that you have requested my approval before taking substantive action on my behalf. On this occasion, the agency acted without obtaining my prior approval. I have been billed for [amount] as a direct result.
Please confirm in writing whether the agency accepts responsibility for these fees — yes or no.
If your position relies on a specific clause of the agency agreement, please quote the clause. I note that NZ contract law's course-of-dealing doctrine, together with estoppel by convention, limits how broadly a contract clause can be applied where the parties' practice has been narrower. I also note that PCCC Rule 9.1 imposes a statutory best-interests duty independent of contract.
Please reply by [date].
Full template: Course-of-dealing pushback.
Lessons for vendors generally
- Keep the pattern record from day one. Every email where the agency has sought approval is evidence of the course of dealing. Save them.
- Pre-authorisation clauses are not unlimited. A standard-form clause says a lot on paper. NZ contract law limits how far it reaches in practice.
- Rule 9.1 is separate from contract. Even where the contract appears to authorise, the licensee has an independent statutory duty to the vendor.
- Yes-or-no in writing. Demanding a binary written answer converts ambiguous positions into documented ones. Whatever the agency replies is useful.