The Deal Fell Through After You 撻訂 — Do You Still Owe Commission?

Losing a deposit to a forfeited deal already stings. Then, not long after, a call or letter arrives from the estate agent, saying they did the work on this deal and there's still a commission outstanding. The instinct for most people is the same: I already lost the deposit, do I really have to pay another bill on top?

The answer isn't a simple yes or no — it depends on pulling the two questions apart. This article draws on public guidance from the Estate Agents Authority and the Community Legal Information Centre (CLIC) to walk through how the deposit and the commission are actually handled separately after a deal collapses.

After a deal falls through, there are two separate bills, not one

"撻訂" usually refers to the deposit being forfeited — one side refuses to complete the transaction, and the deposit already paid changes hands, sometimes doubled. That's a matter between the buyer and seller, and it turns directly on whether the transaction completed.

The estate agent's commission is a completely separate legal document with its own separate rights and obligations — whether the agent is owed anything depends on what the estate agency agreement you signed actually states, not on how the deposit dispute between buyer and seller gets resolved. Some readers assume "the deal didn't close, so obviously the agent isn't owed anything." Others get rattled into paying the moment an agent says "we did the work, so of course we're owed." Both skip the step that actually matters: checking each document, clause by clause, before deciding anything.

The deposit side: how forfeiture is calculated, and what counts as fair

This liability is usually set out in the provisional or formal sale-and-purchase agreement you signed.

Provisional agreement: if the buyer refuses to complete (撻訂) and the agreement expressly states it, the buyer loses the initial deposit already paid to the seller; conversely, if the seller refuses to complete and the agreement expressly states it, the seller must pay back double the initial deposit to the buyer. Note the condition — "the agreement expressly states it" — actual liability depends on your specific provisional agreement's own terms, not a one-size-fits-all rule.

Formal agreement: if the buyer refuses to complete, the buyer may lose all deposits already paid (initial and further) and may be sued by the seller for further loss; if the seller refuses to complete, the seller must refund all deposits paid by the buyer and may be sued for compensation, with the amount depending on the buyer's actual loss in sourcing a comparable flat elsewhere. One point worth remembering: if the seller forfeits a deposit exceeding 10% of the purchase price, a court may not uphold the full forfeiture unless the seller can show actual loss justifies it — a forfeiture clause has to be a genuine pre-estimate of possible loss, not a purely punitive term.

Because the amounts involved are usually 3–5% of the property price, this side of the dispute typically far exceeds the Small Claims Tribunal's HK$75,000 ceiling and sits with the District Court or Court of First Instance — it is not the agent-commission question this article covers.

The commission side: check the agreement, not whether the deal closed

Once the deposit side is settled, the agent's commission is a separate question.

No law regulates the commission figure. No Hong Kong law sets or restricts the commission amount or rate an estate agent may charge — the figure and calculation method are negotiated between you and the agent and written into the estate agency agreement you signed. "It's always owed" or "industry practice" is market talk, not a legal requirement.

The trigger condition is also whatever the agreement says — not whether the deal closed. This is the single most common misunderstanding: many people assume "the deal fell through, so obviously nothing's owed," but it isn't necessarily that simple. What actually governs is the schedule attached to your signed Form 3 (vendor), Form 4 (purchaser), or the equivalent tenancy form — different agents and different agreements can word this very differently. Some agreements tie commission to the agent successfully bringing the deal to completion; others tie it to the agent having already introduced a qualified buyer and arranged a viewing. The same forfeited deal could leave commission unpayable under one agreement and payable under another.

So don't decide based on "the deposit's already gone, so obviously nothing more is owed" or "the agent says it's owed, so it must be." What actually matters is finding your signed agreement and reading, word for word, exactly what its schedule says about commission and an incomplete transaction. (For more on how these trigger clauses can trap you, see Estate Agency Commission Disputes in Hong Kong: When Is Commission Actually Owed?.)

No signed prescribed agreement means the agent generally has no claim

Beyond checking the actual clauses, there's an even more basic checkpoint — whether an agreement was ever signed at all.

Under the Estate Agents Ordinance (Cap. 511) section 45, a vendor engaging an estate agent to sell a residential property must sign a written, prescribed-form estate agency agreement (Form 3) with the agent before the agent acts, setting out the agent's duties, the commission figure and the agreement's validity period; the same requirement applies to a prospective purchaser, who must sign the prescribed Form 4 before the agent shows them a residential property or provides purchase-related services — without it, the agent generally shouldn't be providing that service at all. In other words, without a signed agreement on both sides, the agent lacks a clear contractual basis to claim you owe anything.

This requirement is specific to residential property. Non-residential (commercial or industrial) premises carry no statutory requirement to sign an agreement — if the deal that fell through was a shop or office unit, that distinction matters.

Disputing the amount: EAA determination or the Tribunal

Once you've checked the agreement and confirmed a genuine commission dispute exists, there are two distinct routes available.

Estate Agents Authority determination. Under section 49 of the Estate Agents Ordinance, together with its subsidiary regulation, where a licensed estate agent and a client disagree on the amount, calculation method or payment terms of commission or other fees — and both sides have signed a prescribed-form agreement — both parties can agree to have the dispute determined by the EAA. This covers disputes up to HK$300,000, with a HK$500 submission fee per party (deductible from the arbitration fee) and an arbitration fee of 10% of the disputed amount (minimum HK$2,000); neither side may be represented by a solicitor or barrister at the hearing. Once registered with the District Court, an EAA determination becomes enforceable as a District Court judgment. The catch: this route needs both sides to agree to use it — you can propose it, but the other party isn't obliged to accept.

Small Claims Tribunal. If the other side won't agree to EAA determination, or you'd rather pursue an enforceable money claim directly, and the disputed amount is HK$75,000 or under, you can file at the Small Claims Tribunal. Filing fees run in four bands: $20 up to $5,000, $40 up to $25,000, $70 up to $50,000, and $120 up to $75,000, and the process generally doesn't require legal representation. For the actual filing steps, see How to Fill In a Small Claims Tribunal Claim Form.

If you'd like help assessing whether a commission dispute like this after a forfeited deal is worth pursuing and which route fits, our filing support service covers exactly that; estate agency disputes also sit within our agency commission case type.