In a previous post I posed the question "Are Lawyers Real Estate Breaking The Law Or Not?".

Well, today Peter Mericka had his day in court only to find that it appears that Sifris J of the Supreme Court of Victoria decided "Lawyers Real Estate Have Been Breaking The Law".

Peter Mericka provided the following comments on his blog earlier today

"Judgement in the matter of Dr Claire Noone, Director of Consumer Affairs Victoria v Peter Mericka & Ors was handed down today (27 March, 2012). The Court ruled entirely in favour of CAV."

To read the full text of the judgement, click here: DR. CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA v PETER MERICKA & ORS

The full 26 pages of the judgement can be read Here but in essence the case was across 5 legal issues (extract from the judgement)..

  • ESTATE AGENTS ACT 1980 (VIC)- Whether defendants carrying on business as estate agents. Whether defendants required to hold estate agents licence under s 12.
  • ESTATE AGENTS ACT 1980 (VIC)- Whether first and second defendants fall within the exemption granted to Australian legal practitioners under s 5(2)(e).
  • ESTATE AGENTS ACT 1980 (VIC)- Exemption under s 5(2)(e)- Whether carrying on business as an estate agent falls within the ordinary function of an Australian legal practitioner.
  • LEGAL PROFESSION ACT 2004 (VIC) - Whether Australian legal practitioner referred to in s 5(2)(e) of the Estate Agents Act includes an incorporated legal practice.
  • FAIR TRADING ACT 1999 (VIC)- Whether statements made by the defendants to the effect that registration as an estate agent is not required were misleading or deceptive: s 9.

Extracts relating to the findings for the first 4 points above are

Conclusion

69 In my opinion, the conduct of the defendants does not fall within the exemption in s5(2)(e) of the Estate Agents Act. Consequently, Lawyers Real Estate and SLOD are and, at all relevant times, have been in contravention of section 12 of the Estate Agents Act. Mr Mericka has, at all relevant times prior to 30 November 2010, personally been in contravention of section 12 of the Estate Agents Act.

70 Further, given that Mr Mericka is and, at all relevant times, has been the sole director, secretary and (directly or indirectly) the sole shareholder of Lawyers Real Estate and SLOD, I find that he knowingly authorised or permitted the contravention of s12 of the Estate Agents Act by those companies.

71 Further, Mr Mericka has aided, abetted, counselled or procured, or been, directly or indirectly, knowingly concerned in or party to the contravention by Lawyers Real Estate and SLOD of section 12 of the Estate Agents Act.

and

76 The statements appearing on the websites suggest that neither Mr Mericka nor Lawyers Real Estate is or has been required to be a licensed estate agent to sell property. For the reasons set out above, these statements are false and misleading.

77 As Mr Mericka is and, at all relevant times, has been the sole director and secretary of these companies, I find that he has:

(a) knowingly authorised or permitted;
(b) aided, abetted, counselled or procured; or
(c) been, directly or indirectly, knowingly concerned in or party to; such conduct.

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