The Tribune

By NEIL HARTNELL

TRIBUNE Business Editor

nhartnell@tribunemedia.net

A BAHAMIAN realtor’s bid to obtain a $2.34m commission on the $58m sale of a Lyford Cay residence was yesterday rejected by the Court of Appeal which ruled no “dirty trick” was used to deprive her of payment.

Appeal justice Gregory Smith, writing a unanimous verdict, upheld the Supreme Court verdict that Diane Holowesko, former Town Planning Committee chair under the Minnis administration, was not entitled to be paid a 4 percent commission plus VAT on the April 2022 sale of Harbour House.

Then-senior justice Deborah Fraser dismissed Mrs Holowesko’s claim after finding that, while in “an unfortunate position”, she was not due the commission because she was unable to meet the agreed contractual stipulation that she close the $57m sale no later than 10pm on the same day she was formally engaged.

Appeal justice Smith agreed, finding that Mrs Holowesko and her attorneys had “not proved any dirty trick, underhandedness, collusion or other unreasonable conduct” after the same buyer negotiated the purchase of the nine-bedroom, 11 bath home that covers two acres at Lyford Cay’s marina entrance, after the agreement with her terminated.

He added: “Indeed, in the present matter, if her efforts to conclude a sale of the Harbour House properties were successful, the appellant [Mrs Holowesko] would have obtained a substantial reward of $2.32m for about one week of work - a sum that is greater than 10 years’ of the current salary of an appellate judge in The Bahamas.”

Detailing the background to the dispute, the Court of Appeal judge wrote: “In March 2022, Luc Van Hoff, who owned a property at Lyford Cay, contacted his friend, Fabio Mantegazza, the first respondent, about the fact that a waterfront property at Lyford Cay, known as Harbour House, was now on the market.

“Mr Van Hoff, was aware that the first respondent was looking to purchase property in The Bahamas. Mr Van Hoff also recommended that the first respondent contact the appellant [Mrs Holowesko] to arrange a viewing of the property.”

Mr Mantegazza, a Swiss businessman, is described in media reports as being “fabulously wealthy”. His father is said to have founded and launched the Cosmos Holidays travel firm, and at one point also owned Monarch Airlines. He made contact with Mrs Holowesko on April 4, 2022, who told him about Harbour House and its affiliated Bee’s Nest property and arranged to view both the following day.

Then, on April 6, 2026, Mrs Holowesko sent documents on Harbour House to Mr Mantegazza’s local representatives including Katie Booth, who headed Amber Trust prior to its April 2025 acquisition, whereupon it became the Oak Group’s Bahamas, in her capacity as a director for one of the corporate trustees overseeing the Swiss businessman’s The Bohemian PTC private trust company.

“In those documents, the appellant stated, among others, that the selling price of the Harbour House properties was $58.5m and her commission at 6 percent was in the sum of $3.51m plus VAT at 10 percent in the sum of $351,000,” appeal justice Smith wrote.

Mr Mantegazza’s representatives, who also included Ian Black and Moira Butcher as well as Ms Booth, voiced surprise at their client “having to pay commission since, in their joint experience, it was the vendor who paid the real estate commission”. They also argued that 6 percent “was too high”.

Mrs Holowesko then agreed to drop her commission to 4 percent plus VAT, amounting to $2.34m plus VAT at $234,000. Ms Booth, on April 8, 2022, told her “your commission in the sum of 4 percent is agreed subject to satisfactory conclusion of a deal today at $57m”.

This was communicated to George Damianos, the Bahamas Sotheby’s International Realty president and managing broker, who was representing Harbour House’s vendors, and also David Johnstone, likely the Lennox Paton attorney and partner.

Mrs Holowesko replied, adding that she would “certainly do my best to conclude a sale today but, as you might suspect, it would be unusual for the owners to agree to a deal at below full price knowing they have a highly qualified potential buyer scheduled to tour the property tomorrow”.

Mr Mantegazza and his representatives “contend that they did not want to get into a bidding war with another prospective purchaser of Harbour House who was due to visit the properties on April 9, 2022.

“That is why they stipulated for an agreement with the purchaser ‘today’” (April 8, 2022), at the reduced price of $57m as opposed to the original price of $58.5m,” appeal Justice Smith wrote.

“Eventually, one Ian Black, the representative of another corporate director of the trust, contacted the seller’s agent, George Damianos, copying all the parties, to the effect that if the vendor did not accept the offer of $57m by 10pm, the offer would be withdrawn.

“The vendors did not agree to the sale of Harbour House on April 8, 2026. In fact, the vendor’s agent, Mr Damianos, indicated that he did not see Ian Black’s e-mail on April 8, 2022, as he had been out to dinner without his mobile phone. He only saw this e-mail on the morning of April 9, 2022.

“On April 9, 2022, Ian Black negotiated directly with George Damianos for the purchase of Harbour House at the price of $58m. On April 11, 2022, [Mr Mantegazza] and the vendor signed a letter of intent for the purchase of Harbour House at $58m. On July 12, 2022, the trust completed the purchase of Harbour House through the company HH Ltd.”

Mrs Holowesko, setting out her case, alleged there was “an implied term” in her agreement with Mr Mantegazza and his agents that they would not act to prevent her from earning a commission as they had benefited from her services in purchasing Harbour House.

However, the buyer and his representatives stood firm in arguing that she failed to achieve a specific condition of their agreement - that she close the deal on April 8, 2022, for $57m.

“The appellant failed to achieve this and therefore she is not entitled to any commission, especially since the subsequent sale of Harbour House was effected directly with the vendor’s agent, George Damianos, and she had no input into that sale,” appeal justice Smith wrote of their position.

“The respondents also contend that the appellant was in breach of her fiduciary duties as an agent in offering Harbour House to a competing bidder.” Appeal justice Smith said Mrs Holowesko’s challenge to the Supreme Court ruling largely revolved around whether her commission was subject to the purchase price and closing date conditions.

“I see no reason to overturn the finding of fact by the trial judge that this was not a case where, as the appellant contends, the parties agreed that the appellant was entitled to a commission upon using only her best endeavours to strike a deal by April 8, 2022, at the price of $57m,” he ruled.

“The agreement arrived at between the appellant and the respondents was for a payment of a commission upon striking of a deal ‘today’ (8 April, 2022) at the price of $57m.” Appeal justice Smith also ruled that Mr Black’s attempt to impose a 10pm deadline had no impact.

He added: “The appellant was undertaking a high risk venture for a potentially very high reward. This agreement was to secure a deal between the vendor and the respondents by 8 April, 2022, at the price of $57m. It was not an agreement to pay commission if the appellant used her best endeavours to secure a deal.

“The appellant undertook a high risk venture for a very high potential reward, and having failed to achieve the agreed result, she cannot rely on her efforts in and about the risky venture to conclude a deal by 8 April for $57m to secure the payment of any commission.

“The issue of whether she was the effective cause of the eventual sale between the vendor and the respondents was irrelevant to her entitlement to be paid a commission.”