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.”
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
[hr]
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.
[hr]
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.
122 Comments
Glenn Batten
I don’t think it was one of Peter’s best days… I wonder if he will appeal now and where he will go from here.
Peter Ricci
Well it could be that the Estate Agents Act is outdated. Peter obviously thought he had a case and it has been heard. I still dont think it should effect a person being able to promote listings for sale outside of being a real estate agent.
So Peter could very easily continue his business with modifications to his promotion and business model.
Glenn Batten
Regarding your comment about a person able to promote listings for sale… the judgement deals with that very well Peter R. It seems several tactics were suggested by his defence team of why he would be outside the act and all were rejected including what I describe as “the pigeon hole defence” which is what a private sales website would be able to use. I suggest you read the full 26 pages as the Judge explains quite well why those defences were not applicable in this case. In essence though, this decision to me does not effect a non real estate agent promoting a property for sale in circumstances ike a private website..
Peter could have fought for changes to the Estate Agents act but instead he chose the opinion that the act did not apply to him for nearly 10 years. He assumed it was fact and quoted it as fact to customers and clients. The court has ruled that it was not fact and he was wrong in his arguments and he should never have advised clients that he did not need a real estate license. Outside of an appeal Peter has to accept the verdict of the judge.
Peter could have continued his business with modifications prior to this judgement but now I am not so sure as it brings up many new questions now..
Penalties and Fines? Trading without a license offences alone seems to be over 2500 penalty units ($250k+ ???). If he has to pay his own costs, CAV costs and fines then it could be financially crushing.
Will he be asked to refund Real Estate Fee’s he has charged over the past 8 years? That’s a scary scary thought.
Will the REA and Domain Accounts stay open now that there is a court decision he has not traded as a real estate agent? He has it now so this is probably unlikly whlst he continues to hold a license.
Will he keep his RE License given the findings?
The act references jail time as a penalty, could that be on the cards or is that just if he refused to pay the penalty fines or for repeat offenders?
Will the Vic Law Society take action over the findings re deceptive and misleading conduct and is his ability to practice law at risk?
Will there be an appeal?
What does he have to put in the newspaper??
According to the judgement CAV partially spoke to the orders they are chasing in their closing arguments so Peter M should have an excellent idea of what they are chasing and if any or some of the above issues are going to be valid.
I disagree with Peter’s opinions on the real estate industry however I certainly don’t wish him and his family financial oblivion over it. He knew the risks and he chose to take them and it seems to have backfired spectacularly.
He really has only himself to blame but I am sure he will continue with his ridiculous rhetoric about the real estate industry “tentacles” corrupting everything around him… He needs to take ownership of his own decisions.
The funny thing is that as we change to be a national industry apparently one of the considerations on the table for discussion regarding national legislation is if lawyers can sell real estate.
Was he just a decade to early and simply too stubborn for his own good??
Lisa Tremolada
I’m glad you said that Glenn. I would never want to see Peter or his family destroyed. I hope he can learn from this and pick up the pieces and grow as a person and business. Yes, it’s all choices he has made. Now let’s hope he makes other choices that will serve better.
Brett
“The funny thing is that as we change to be a national industry apparently one of the considerations on the table for discussion regarding national legislation is if lawyers can sell real estate. ”
Well, looks like that question has been answered and is now a precedent.
I can’t see the likelihood of an appeal, as from memory, the next step from a Supreme Court Decision is The High Court of Australia, and the costs involved and the time to wait is exhorbinant.
I enjoyed reading the Judgement from a legal point of view, as they smacked down nearly every argument that he has put forward over the years and he has attacked us over.
My bet on the penalty will be a significant fine, repayment of ‘commissions’ collected and the stripping of the real estate licence -either 3 year ban or lifetime, as he was practicing without one for many years.
Which brings possible another issue – Trust Account?
Glenn Batten
Brett,
This decision is about a state legislation and would have no precedent over upcoming national legislation. My understanding is that the courts interpret and uphold the legislation. Bring in a new act and it trumps.
vic Del Vecchio
For readers of this blog I’d recommend you spend some time reading through Greg Vincent’s article on the subject dated 2/9/2010. Greg raised the issue of legality of Peter Mericka’s business model and the thread was 247 comments long.
Readers will see Peter M’s arguments that preceded the court case and will see comments from those in favour and some for his stand.
It really does make for interesting reading.
If Peter M decides to appeal the court’s judgement it would be highly unlikely that he can offer any prejudicial comment on this blog.
Whether Peter M was originally driven by principle ie that he knew the law and thought it to be a bad one, or really believed that he was operating within the law, only he really can say. But the fact that, during the course of the debate raging from Sept 2010, he actually obtained his real estate agents licence, suggests that he realized at that point that he had been breaking the law.
We may never know.
The cost to Peter M with this judgement cannot be measured in $’s alone. The publicity will no doubt kill off his business
Nick
I just can’t get past the irony of “Lawyers” Real Estate being taken to court and losing. 🙂
Craig
Well in every case there is a 50% chance one of the lawyers will lose. It’s not like he was up against real estate agents, he was up against other lawyers (probably Barristers).
Peter Mericka
Hi Everyone,
While I will have more to say on the matter in due course, let me make just a few comments.
I have always acted according to my conscience in attempting to demonstrate that there is another way to assist consumers who want to sell real estate.
My openness and honesty in describing precisely what I do has been used against me.
No client of mine has ever lodged a complaint of any kind with CAV about the services I have offered or provided.
The court has not nominated a single function that I must cease. For example, the court has not said that I have to refer a client to a real estate agent to have a particular service provided. I would go further and say that if, as a lawyer, I were to a refer a client of mine to a real estate agent to have that client’s contract negotiated, I would risk being found negligent.
CAV does not want me to compete with real estate agents, and this is the sole motivation behind this court action. Consumer protection had absolutely nothing to do with the case.
The court has accepted CAV’s assertion that if I offer to do things for my client that a real estate agent may ordinarily do, acts which individually I am not prohibited from dong, then my business takes on the characteristics of a real estate business.
Read the headings of the judgement – they are all about “business as estate agent”.
I realise that having me out of the way will delight most real estate agents, but I do not see how the outcome of this case benefits consumers.
Glenn Batten
Peter,
Do you mind sharing just what was CAV asking for by way of penalties, fines and costs in their closing argument?
I think CAV dont want you competing as a lawyer against real estate agents in the business of selling property.. that’s pretty clear.. but they did give you a real estate license… so they have no problem with you competing as a real estate agent with other real estate agents.
>>>>>I realise that having me out of the way will delight most real estate agents,
Many agents will be delighted with the court ruling because of your attacks on the industry and it’s participants… but having you “out of the way” as such is not really correct and if you think the collective think that way I think you have got it wrong. I don’t think it really bothers anybody from a competitive standpoint. I have always contended that there is a far bigger threat from online agent assisted models than your lawyers real estate model even if you were found correct in court.
Are we to assume that from your comment you are not going to continue the business using your real estate license?
I can’t see how your model does not work just because you have a real estate license. You would be one of the most qualified real estate agents in the state and probably the country and that is marketable you just have to change your approach. You got your license at the end of last year and have been continuing to trade so I dont see a problem other than some penalty from the court brought about by your actions prior to gaining your license.
Christian McDonald
I dont want him losing everything but He deserved this, he is arrogant and disrespectful to agents yet acts like their friends while knifing all of them. If he wants to be a Real Estate Agent he can be one, but don’t mislead and trick the public like he has. He is unethical the way he advertises different links on the internet for different articles all written by him. He bullies agents and he bullies Lawyers that do conveyancing for agents. Unfortunately Karma got him.
John
Christian, arrogant and disrespectful are how many ordinary people experience real estate agents, who operate in an unregulated environment with provisions and murky conventions stacked in their favour. The glee that this decision is being met with (by agents) reveals a nervousness that the utopia agents operate within is at risk. To label someone who links to their own articles as unethical seems very strange as the articles are clearly linked to his own name. Someone who is attempting to offer more transparant processes should be applauded not derided. The decisions is representative of a law and laws that are now out of date and do not amount to a condemnation of business model or process as a plausible and appropriate optio for the cosumer.
Peter Mericka
BTW Vic Del Vecchio, the court was told that the only reason I obtained an estate agent’s licence was to head off REA’s attempt to cancel my membership, and for no other reason.
Guy Robinson
CAV: “Peter, get a license”
PETER: “No way get stuffed!”
REA: “Peter, get a license”
PETER: “Sure, here you go!”
Brett
I guess is a case of jack of all trades master at none.
Peter Mericka
Just two more comments I’d like to make, having read over a few more above:
Dr. Claire Noone made it quite clear to me and to the court that she wanted me to get a real estate agent’s licence so that she could shut me down. In a letter to the Business Licensing Authority she stated that any licence issued to my firm should be endorsed so as to prohibit the licence holder from simultaneously offering legal services. In other words, Dr. Noone wanted my firm to stop offering consumers a one-stop-shop unless it held an estate agent’s licence, and then if it became licensed she would use the licence to achieve the same result.
As for the future, and lawyers selling real estate, the law was changed in New Zealand after lawyers were prosecuted there for selling real estate. Now lawyers and conveyancers can sell real estate. Similar in South Australia. Lawyers selling real estate is a move toward greater competition, and consequentially, consumer benefit.
Brett
No in South Australia we use conveyancer services to do Form 1’s ( vendor statement) . We also use Law Society Contracts for Agency agreements and Purchase contracts. I don’t know of a Lawyer selling R/E, however they do have conveyancing departments and draft documents for owner/sellers.They certainly do not advertise that they sell Real Estate.
Peter Mericka
Check your legislation Brett. Lawyers can sell real estate in SA.
Glenn Rogers
If he was unlicensed he had no legal right to charge commission so all commissions, if claimed upon, would have to be refunded, with interest.
Claims for negligence could follow if the seller was unhappy with the price.
Glenn Rogers
Sorry didn’t see you there ^^^ , I meant you Peter of course.
vic Del Vecchio
Yes, Sorry Peter,
REA was the reason you got your RE licence.
Didn’t mean to mislead on that point.
I really hope that you can continue with your vision. Cheers
Geoffrey
My understanding of the situation in SA follows:
– It is possible co-incidentally to carry on business as a legal practitioner (pursuant to a practising certificate) and as a real estate agent (where the person is registered as a real estate agent). That does not appear to be possible in Victoria from Peter M’s comments.
– Recognition of prior learning from subjects in a law degree give most but not all subject required to be registered as a real etstae agent. Hence, a legal practitioner would need to complete a small amount of additional study to be eligible to be regsitered.
Peter M’s point that the prosecution was primarily not undertaken for the benefit of consumers is both valid and important. CAV appears to undertake a relatively small amount of investigation and enforcement, proably owing to funding constraints. Given some of the activities (such as those that Peter M has reported), it would appear that CAV’s primary obligation to protect consumers from major harm would have ben better served by undertaking other matters. However, Peter M’s major marketing strategy appeared to be making vitriolic attacks on all and sundry (including CAV). After 8 years of those attacks, it is not surprising that CAV decided to squash him.
Peter Mericka
Glen Rogers, you’re introducing something that was never before the court. No-one has ever suggested that consumers were not happy. There has never been a single complaint from consumers in the 10 years that we’ve been offering our service.
We have never charged for a service that we were not permitted to provide, and neither Dr. Noone, nor the court has nominated any specific function that we could not perform for a client or is beyond our expertise.
Please get your facts right, and don’t start rumours.
The only reason Dr. Noone launched this action was to stop Lawyers Real Estate from competing with real estate agents – nothing more. There has never been any suggestion of consumer detriment.
Glenn Batten
Peter, to be fair, your claims over these matters has now been decided in court to be “entirely” off the mark so your opinion on just what was in someone’s mind when they decided to prosecute you I take with a grain of salt..
Sometimes you are too close to see the forest for the trees!
Your expertise was not the issue.
I really can’t see how something has to already be before the court or lodged with CAV for a claim of compensation to be lodged against you into the future. In fact if there was a past client who indeed wanted to seek compensation, if you were their solicitor wouldn’t you recommend they wait till this case was finalised before proceeding to maximise the chance of winning their own claim? I am not predicting that anyone will want their money back but isnt this true ?
Also If a real estate agent sold a home for your client and it turned out that whilst he had the expertise he was not licensed I reckon you would be the first in line to try and get your client out of paying the commission.
Just because you CAN do something does not mean you should or even that you are allowed to do it. I might be able to ride a motorcycle but without a motorcycle license I cannot legally ride it on the road even if I have a car license and the required skills and experience etc. If I get caught riding a motorcycle on the road without a license I know that I risk getting in serious trouble and I might even lose my car license.
IMHO CAV did not stop you competing with real estate agents. They gave you a license when you applied for it. I have read your belief that they only gave it to you in the hope they could take it off you… I don’t believe that at all.
They tried to stop you operating as a real estate agent when you did not have one… There is no Get Peter Mericka club that meets in secret on every second Thurdsay night.
You did not answer my earlier question on just what CAV asked for in their closing arguments regarding penalties/fines.. I am only asking for what they have already raised in court. Did they talk at all about refunding fees charged for Lawyers Real Estate ?
Brett
Glenn, you know that we don’t meet on Thursdays…
“Just because you CAN do something does not mean you should or even that you are allowed to do it. I might be able to ride a motorcycle but without a motorcycle license I cannot legally ride it on the road even if I have a car license and the required skills and experience etc. If I get caught riding a motorcycle on the road without a license I know that I risk getting in serious trouble and I might even lose my car license. ”
Great example.
Glenn Rogers
Peter I was only stating the obvious, if you were acting illegally at the time it opens all the doors.
Not starting rumours and just stating a fact, I’m sure everyone was happy but the door is open now the judgement is in, don’t shoot the messenger.
Vanessa
“Dr. Noone wanted my firm to stop offering consumers a one-stop-shop unless it held an estate agent’s licence, and then if it became licensed she would use the licence to achieve the same result.”
I don’t see why this would be such a a big problem. So many other businesses and industries offer a “one stop shop” model. Why should real estate be any different? Real – estate agencies could also get lawyers on board to handle the sale contracts etc. Last time i checked it only takes a few months to become a real estate agent, but years to become a lawyer. I guess when you compare the two, a lawyer would be more qualified and thats why the real estate agents are worried.
Im guessing it all comes down to the commission, no real estate license = no commission. So get a license.
Geoff
For ages have heard nothing but bad news about this bloke and that he has no hesiation in publically slandering real estate agents and our Industry. I have purposely ignored his rantings but now that karma has caught up with him I hope they throw the library at him. I have no sympathy for self serving, opportunistic mud slingers who hide behind social media and websites but who rarely have the courage to say the same sort of things in a face to face situation. Let justice be well and truly done! After all, justice is what he stands for as a lawyer isn’t it – or has that now gone by the wayside as a result of these findings. Oh, and let’s get on and sort out a couple of other “Messiahs” who promote their own interests on the premise of pretecting the public ffrom the masses of black cloaked, sickle yielding real estate agents…… Sympahy factor zero!!!
John
Sorry Geoff how does one hide behind social media formats which are allclearly labelled with his name, his company name. Also people who are calling for openness in the industry should be applauded, our name is mud publicly and better laws and regualtion would improve the situation for all of us. Some measure in the comments here and some self reflection is not too much to ask is it. Some of the tricks of colleagues that I see weekly make me sick…think of some of things you’ve done.
Peter Mericka
Well, it certainly got the hounds baying didn’t it!
Let me throw the dogs a bone by telling you all that it ain’t over yet. I’m still the only person who stands between you hungry lot and the consumers you exploit, and Dr. Noone and her crew are no more than speed hump in my journey to the reform of this corrupt industry.
Brett
So when does the penalties get handed down?
Peter Mericka
Dumb question Brett. You’re one puppy that’ll go hungry.
The reason CAV brought this matter was because they knew that a prosecution would not succeed because they could not come up with a single function or task that we perform that cannot be performed by a lawyer.
Confused? I’m not surprised.
Is there anyone on this page that actually understands what this court case was about? Greg Vincent, perhaps you can explain to this lot that “court case” does not automatically mean “criminal case” – you’ve got a handle on it, haven’t you?
The ignorance is astounding.
Glenn Batten
Seems you are going to resort to ranting again Peter… 🙂
>>>>>>>> Is there anyone on this page that actually understands what this court case was about?
According to the judgement that I read despite your best claims before and now afterwards you certainly did not have that good a grasp on the whole topic yourself. Given the decision handed down your endless spray against the real estate industry has proven to be nothing more than empty noise and IMHO you are now just embarrassing yourself even more. I know you don’t see that and no matter what anybody says you are going to claim conspiracy theories behind it but it is all getting a little too sad for me now.
Elvis is dead, man did land on the moon…. and agents are not out to get you…. like we have been telling you for a long time… you need a real estate license to sell real estate. Get over it and move on or this will consume you….
I will leave you to your misery from this point on!
John
Agents are not out to get him….not from what I’ve seen. I’m sure you got the same emails.
Glenn Batten
John, I have not seen any emails that you mention but I have no doubt that individuals are our for their pound of flesh but IMHO agents as a collective are not.
Peter has liberally attacked a lot of people and no doubt that some of those have deserved it but from what I can see many have not and its not surprising at all to hear that its come full circle with some returning the favour.
I guess those emails you mention are suggesting that people who live in glass houses shouldn’t throw stones?
vic Del Vecchio
Peter Merricka was not a threat to the industry as I see it. The REI’s and Industry Boards have a lot to answer for not dilligently enforcing codes of conduct and regulations.
I have heard it so often said that agent’s who are aware of bad and unconscionable practices find it difficult to report because of the difficulty in providing evidence of such practices. I can’t say I blame them as there seems no willingness on the part of the boards to set up a proper process to encourage such reports.
Peter Mericka
Does anyone else have anything meaningful to contribute, or is Glenn Batton the best you can come up with as a spokesperson?
Glenn Rogers
Sure glad to help, speaking as one of the “ïgnorant” I’d like to add that theres only one persón here as far as I know with a judgement against them in the Supreme Court.
Peter Mericka
A profound contribution Glenn Rogers, quite befitting a person of your status and intellect.
Glenn Rogers
as was your decision to sell real estate without a license, thats it for me you sort it out astute legal mind that you are.
Peter Mericka
🙂
Peter Mericka
All said? All done? This is the final call…
Glenn Rogers
Yes I think you’ve got better thtngs to do than argue the point in here, good luck.
Peter Mericka
You’re out Glenn, anyone else, final call…
Brett
And again, you are the last man left, ranting to no-one, hoping for someone to bite and validate your claims. Good luck
Peter
Peter, I feel for you. Going through a legal battle is very expensive and time consuming – I know all too well as I am in a legal battle with an individual who has thrown a small fortune at lawyers and the courts to ‘steal’ what is legally mine and thinking I will lay down and hand it over.
The are some agents out there frothing at the mouth believing that you will have to repay commissions to vendors. That simply does not happen. The government actually confiscates any commission earned whilst someone is unlicensed. The difficulty for them is that you did no earn commissions – you charged a flat fee for a total service. So if you do have to forfeit any money earned, you can easily argue that you earned the same as other internet based agent assisted real estate businesses – ie between $300 and $500 per sale. So if you do have to forfeit any money earned, (and I don’t think you will) it may somewhat less painful.
Greg Vincent
Peter, not everyone interprets the law and the real estate industry the way that you do. Thank heavens.
Peter Mericka
Thanks for the encouragement Peter. If you’re wondering why I keep coming back here because it’s my barometer for the attitude of the real estate agent community.
I get a great deal of comfort from the comments I read, not because they are supportive, but because they tend to be quite inane, harmless spleen-venting. Sure, I’ll snap and snarl in response occasionally, but that’s no different from when I rouse up the two little Jack Russells that rush at the fence of a property I regularly jog past.
I would be concerned if I ever read anything insightful or which raised points that I hadn’t considered. Most of the time, however, the most profound comments are like that of Greg Vincent above. Glenn Batten can be interesting at times, but he quickly dissolves after a paragraph or two.
Anyway, cogent argument, insight and plain common-sense are in short supply here, and that buoys me.
Glenn Rogers
[quote]Thanks for the encouragement Peter. If you’re wondering why I keep coming back here because it’s my barometer for the attitude of the real estate agent community.[/quote]
Are you serious ? What sort of attitude toward you would you expect from an industry you so publicly criticise ?
John
Care to question why teh industry is so easily criticised? Lack of transparancy etc.
Glenn Batten
The story was picked up by the AFR today..
<< link removed - the AFR site no longer displays the article >>
Peter Mericka
Hi Glenn,
Check the link in your comment above, and you’ll find that the AFR has removed that article. Remove your comment immediately as it is defamatory. My lawyers will communicate with you and with Mr. Ricci shortly. Please email me at [email protected] to confirm that the offending posting has been removed, and include the date and time that it was removed.
Glenn Batten
Thanks for the call Peter.. What was the particular part in the article that you believe is defamatory ?
Peter Mericka
Hi Glenn, as discussed in our telephone call, my lawyers will write to you at the email address you provided. I have been told that they will make contact with you on Monday.
Glenn Rogers
The article would be in print wouldn’t it ?
Peter Mericka
Don’t get yourself involved Glen Rogers – I can’t be fairer than that.
Peter Mericka
Hi Glenn, as discussed in our telephone call, my lawyers will write to you at the email address you provided. I have been told that they will make contact with you on Monday.
Glenn Rogers
Dont threaten people Peter, even indirectly. Clear ?
Peter Mericka
Peter Ricci, please remove this thread, and any other thread relating to me and the Supreme Court matter completely and immediately.
Please ensure that you have accurate records of the publishing of both articles (i.e. date first published, and date removed).
Thank you.
Peter Ricci
Peter, if you can demonstrate any part of the article or comments that are defamatory then please advise, if I believe it is, then I will remove it.
I am struggling to find anything though, except a little tit for tat between yourself and others on this site (which has been going on for over two years) , of which we clearly are not responsible for what others comment on.
Peter Mericka
Peter Ricci, I have provided the warning I was advised to provide. You should now seek your own legal advice, and should anyone who has contributed to either of the two threads.
Glenn Rogers
He may not be reading this why dont you try the usual method of contacting someone running a web site –
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Peter Mericka
Peter Ricci, I have provided the warning I was advised to provide. You should now seek your own legal advice, as should anyone who has contributed to either of the two threads.
Enquiry
Why would anyone seek advice in relation to this thread?
vic Del Vecchio
Peter M,
Just read the thread from last night. Wow, are we to take it literally, that you are asking all who contributed commentary to this article and to last years article, should seek legal advice ?
gordonc
Good on you Peter Merika, many of us know what it’s like to overcome the “old boy network” who looks after itself and bugger the consumer, which is supported by cronies and (some) bludging public servants who are totally committed to their own career path rather than being concerned with the public interest.
I am sure you are looking at an an appeal to the full bench of the Supreme Court, and although I am not deeply involved in your crusade, I sincerely support whatever decision you make.
SIGNED
Gordon Craven
Anon
What a motherhood statement Gordon. Do you imply that Sifris J yields to the old boy network, I would hope not!
The findings were based essentially about the “ordinary work” test which from the judgement hinged in most parts from LIV v Maric. It should be noted on this point the LIV in their recent newsletter to practitioners used this case to highlight their clear desire for a definition of legal work. What they failed to bring to the discussion was the merits of the ruling.
The legal profession act remains silent on such definitions to allow the courts to adapt to the ever changing commercial needs of the profession.
One possible avenue Mericka may have ventured on would have been a declaration by the court before he engaged in such conduct. However from viewing his arrogant attitude on today tonight and the way he writes it appears he wanted to pick a fight, he sure did get one.
The judgement has been delivered. He was found to beach the estate agents act with three legal entities in his controll. The flow on effect is now the label of deceptive and misleading conduct pursuant to the Fair Trading act.
Gordon you brandish an appeal like Mericka rants on. How about detailing you point of law in which you think Mericka could appeal. I can’t see one.
Mericka now writes as if he is stunned with the decision. I find this strange, he knows CAV at the request of his honour are drafting their desired orders. Mericka will then have a chance to respond and argue. Until then he won’t know what he can and can’t do.
So let’s digest the judgement and think about how Mericka will move on from here. He has a business built on real property transactions with the label of being deceptive and misleading for the rest of his days, save on appeal.
Orders will soon show what the repercussions of actions yield. I highly doubt his past clients would have a claim against him unless they can demonstrate they have suffered a loss. Perhaps a “real” agent could have achieved more $$ in the sale of his client’s properties. A hard task to prove.
Let’s see the orders.
Anon.
gordonc
Don’t be ridiculous Anon,
I was not implying anything about the judge, neither was I suggesting there were grounds for an appeal.
Stop misconstruing what I said (whoever you are) to further your own argument.
Anon
Gordon. Your comment on public servant implies CAV or the court? So as a consumer advocate do you support unlicensed parties? CAV seeks to enforce acts which protects consumers from unlicensed traders. Sometimes there are victimless actions brought about by CAV however they seek to test the law to ensure the law performs to deter opportunists.
Consumer advocates support the law and it’s enforcement. To change a law one goes back law 101, the three arms of government. Stop whining and start to lobby someone who can change the law if you and your supporters don’t like it.
Mericka broke the law, the law won.
gordonc
Well obviously the it’s CAV. I have never had any personal experience with CAV, but plenty with other government fair trading (and other) agencies around Australia which I have found to be useless packs of overpaid and unproductive public servants assisting to suck this country dry and do it disservice.
From what Peter Merica has observed about the CAV leads me to believe that CAV is no different.
My bloody oath I support unlicensed parties when the licensed ones fail to to their job. I have previously been involved in numerous successful litigation matters and currently involved in two where the so called consumer watchdogs have showed themselves to be no more than tame or inept poodles that spend their time dreaming up excuses to do nothing.
As such I have complete confidence in Australia’s judiciary, otherwise I would hardly bother.
And as for lobbying, I do not have the tact, demeanor or enthusiasm for that butt kissin pastime. Anyhow I am too busy attending to the litigation things.
Jason Hamer
Go to Jail, do not pass Go!
Merica thought he was playing monopoly. Monopoly is about real estate, but it’s fake!. And, being a fake Monopoly real estate agent does not make one a real agent. Peter, now go and get a license please – if the ruling does not now compromise the character test.
Poetic justice.
Peter Mericka
Peter Ricci, you were clearly warned by me above. You are the moderator of this site, and you have allowed the defamatory posting by Jason Hamer to be published on this page despite that warning. You are also aware that this page is syndicated to various other websites, both national and international.
The imputations of the Hamer comment are defamatory, and do serious and irreparable harm to my business and to my personal and professional reputation, and I require you to remove it immediately.
I will have my lawyers contact you about this matter as soon as possible.
Peter Ricci
Hi Peter, it was a comment by a person from the public that to say is defamatory is quite a stretch, he used a monopoly analogy in what he probably would consider a humorous manner.
So let’s break down his comment.
1. It is clear by law that to be a licensed real estate agent to run a business selling properties on behalf of others. You need to have a license!
2. If you do not do this (by law) then you are not a real – real estate agent.
Do I agree with these laws? Probably not, real estate has moved on from the old days and I think anyone should be able to market real estate (and I know most agents here would disagree) This way the best will still shine!
Note: We only moderate the first comment by a person, and if it is fine, then it can pass through. All other comments are the responsibility of the person commenting.
If we find anything defamatory then we either edit the comment or remove it (very rarely remove it). So Peter, you can keep going with these public threats but really, this was pretty soft. So I suggest you either move on or contribute something meaningful to the discussion.
If your Lawyer needs to contact me he can and my numbers are listed on this site. You can also contact me at any time, if you think we have broken any laws then please state which laws have been broken. We do not invite this kind of banter, but I want this site to be as open as possible. I dont want your reputation sullied in any way, but you are a vocal voice on this site and have served it up to these guys for a long time now.
They are having a bit of fun with your loss, but times change. I suggest you keep contributing like you have done so many times in a meaningful manner defending your business and the services they offer.
Yes you will cop it from many on here, probably because of your success so treat it as a badge of honor that you annoy so many 🙂
Peter Ricci
02 8006 0716
gordonc
Seems Peter Ricci has a point to make, maybe he consults in defamation?? unwise to aggravate the matter in my opinion.
Peter Ricci
Hi Gordon
No point to make, I have let all 150+ comments of Peter’s go through on this site and he has enjoyed the freedom to express himself just like everyone else.
I do know your fights over the years I was in Tassie at the same time you had your battles and know you well.
Hope your well
gordonc
Hi Peter,
Thought I recognised the name. Good to see you are keeping busy and wealthy I hope 🙂
Maybe I can submit a contribution at some time in the future? I have some interesting things happening concerning consumer law in the online space.
BTW did you see this one : ACCC wins appeal against Google, http://www.accc.gov.au/content/index.phtml/itemId/1043701/fromItemId/142
Best wishes
Gordon
Glenn Rogers
I don’t think he’s trying to make a point at all, why should he remove a thread because someone is making legal threats if he believe he’s in the right.
gordonc
Yeah, well Peter Mericka believes he was in the right too.
Glenn Rogers
Over on the ABC forums people are calling FWA corrupt, that gets published on the ABC web site no problems ……….so I think if you’ve had a judgment against you in the Supreme Court you should expect some flack and to try to scare that comment off with threats of legal action doesn’t help.
If Peter didn’t want this discussed he shouldn’t have contributed to the thread and inflamed the situation.
Peter Ricci did ask Mericka what sections of the thread he thought were defamatory and received no answer so …no explanation just a veiled threat.
I applaud Peter Ricci for sticking by his principles here.
vic Del Vecchio
Peter Mericka,
I don’t know if you realize what you have done by issuing threats of legal action against everyone offerring an opinion on this blog. You have every right to do and say what ever you want, but it is the tone in which you say it that becomes offensive and alienates even those who are supportive of your business model. I for one have understood your arguments that if you are qualified to perform the functions of a real estate agent, then you should be able to.
However, the issue in the judgement is not whether you can do the job effectively; it is not whether clients have never made a complaint; it was clearly because the law states that you needed a real estate agents licence to do so.
I also believe that the law is wrong and that this is where you would get a lot of support. But you do not need to inflame agents and the industry, in which they operate, which incidentally operates within this law, to do so.
You could definitely use this forum to help your cause and if you did so respectfully, you may be surprised at the level of support.
Anon
Delusional,
Mericka now seeks to hold himself as somewhat of a legal phenomenon. He now refers to his “landmark” decision as the MERICKA decision. On the LIV LinkedIn group he is the most vocal and still slams his detractors. Out of 500 + group members he hogs the mic and most aren’t listening. Sound familiar?
He even has the balls to repost a tweet from his pin up boy Neil Jenman about a “dirty cop”. Does Neil Jenman support you?
Peter Mericka you now wear the badge of being a deceptive and misleading lawyer who is a former cop. One of the clear defenses in defamation is truth. Squirm away from this name badge.
Mericka sensationalised his own judgement, before the Supreme Court published the judgement. Mericka do you believe by being on the front foot has some credibility? If you do you now have to follow through.
Mericka, now the stakes are raised, what are contained in orders CAV desire. What do CAV seek to befit your actions deceptive and misleading conduct? Do they want corrective advertising, in what publications, how about letters to your former and current clients, injunctions and what about penalties. This is what we want to know. This is what the media outlets want to know, feed them the titillating details just like you did with today tonight.
Truth hurts, what are your consequences?
Nicholas Lowther
Personally i think he got what he deserves the blokes nothing but a big mouth and is quick to jump to conclusions about people.
I hope this blog stays around long enough to for people to read what lies beneath Laywers Realestate the lost there legal battle. .. ironic..
This guy has absolutly no credibility
John
oh dear….nice logic…”the blokes nothing but a big mouth and is quick to jump to conclusions about people” and spelling…..
Brett
Well, since he is ignoring my tweets I will ask the questions in a public forum and see if he responds.
What has happened to your websites – http://www.lawyersrealestate.com.au and http://www.slod.com.au ? Are they just off line for the moment?
Nicholas Lowther
He came out squawked, made a heap of noise, got shut down – crawled into a ball and dissipated.
Anon
Well it looks like the Troll has been pushed into the stream.
The LIV has shut Mericka’s rant postings and now the Legal Services Board who is the statutory body which governs the legal profession in Victoria has published “Solicitor guilty of selling real estate without licence”. http://www.lsb.vic.gov.au/news/regulation-prosecutions-and-alerts-news/
The profession does not stand for deceptive and misleading conduct, Mericka your practising certificate renewal is now due, how is your “show cause” explanation going?
Websites are crippled, why not tell us of the orders CAV desire. Be upfront Peter, it’s been you modus operandi thus far. Indulge us, tell us all of the penalties Dr. Noone desires.
Or perhaps you will try and deflect the heat with a ranting on how you think the “Mericka” decision will effect the industry. Peter can’t you see the forest for the trees.
We are waiting…
Brett
Just having a read of the previous article and this one and it is a real shame that PM has decided to go to ground and not make anymore comments.
Looking at his FB page and the Linkedin convos, his attention has now been turned inward and the LIV is now bearing the brunt of his abuse. Lawyers turning against Lawyers…who would have thought.
But still, he still has Google+ to communicate with…oh, right.
Greg Vincent
The silence is deafening Brett
…interesting to see one of PM’s supporters suggested that “there has to be a light at the end of the tunnel”… it’s going to be interesting to see if there’s a light at the end of the tunnel or whether it’s a train coming?
Brett
For someone who bemoaned many times that he was being censored, I have asked some simple questions on his blog REIC – and have not had them published at all.
Oh, and Peter, since you are still monitoring all of the sites and you have decided to shut down your websites, can you please shut down the twitter auto feeds for SLOD, they are really annoying as they are now dead links.
Greg Vincent
Your other site Peter, http://relv.com.au/ also has some advertising of the Lawyers Real Estate service which may also need to remove.
city lawyer
Brett you are spot on with your comment above. Peter Mercika has now turned his attention (anger) against the LIV President, through a LIV group on linked in, and also collegues who dare to make a comment including a lawyer who spoke his own opinion and clearly stated it was his own and not his employer ( see my comment below). PM then demands to the LIV President that he not be censored and free speech for all. But Brett as you said he wont publish constructive comment on his own blog
This is his latest against the Firm Slater and Gordon :
http://reic.com.au/blogs/australian_real_estate_blog/archive/2012/04/23/slater-gordon-too-great-to-challenge.aspx
I sent the below comment to him more than 2 days ago and he wont publish it. Why not Peter ?
“Are you for real Peter? Firstly It appears you dont know the case in which the “Duck Test” was first used. Mr Kruger’s comment was not public it was limited to members of a group in linkedin. He was referring to the duck test case which you dont seem to get. There is a huge difference between a legal practitioner that acts for a client in the negotiation of a specific contract for real estate as part of many other legal services a firm supplies as opposed to you who set up an office that looks like a real estate agents office (duck) talks like one (insert quack here) and sets up to the public at large that you are in the business of real estate could not realistically expect to come within the “ordinary functions” exemption when the predominate purpose was to act like an estate agent (quack).
You can try and twist it as much as you like but you challenged CAV to take you on Publicly and they did.
You now try to assert that every other ILP is breaching the law and I doubt that the “ordinary functions” performed by ILP ‘s would be prosecuted. If anything comes of it an amendment will be made but your operation is still a duck.
By the way I didnt interpret Mt Krugers comments in way derogatory but your reverse attack on him bringing in his employer (when he was merely speaking as a lawyer) was misconstruing the whole approach from him and your conduct and badgering was poor conduct and most unprofessional for the restricted group blog.”
It seems People in glass houses shouldnt throw stones.
My admiration to Glenn, Greg and others on this website for providing rational, analaytical commentary on the two threads on this issue.
Country Lawyer
Mr. Mericka, do you have a nasty “to-do list”? So far, in as much as I come in late to this posting all I see is a lot of hate without substance.
Strike One – Take on a State Government body; dumb, dumb and dumber.
The decision by Sifris J is one which his Honour no doubt considered for some time. The effect on the profession and the drafting of the Estate Agents Act no doubt required good consideration. However viewing the spin which has taken place since, it has me scratching my head. The decision is right on the money, “in the ordinary course” allows a court to adapt modern business practices with consumer expectations. Once again a perfect amalgamation of the separation of powers at work.
Strike Two – Sensationalise your own loss and then try and poke fun at anyone who adds a named comment to their opinion. Especially another very deep deep pocket… Slater and Gordon
Mr. Mericka, someone offers an opinion, based on rational circumstance, fact and personal judgment, yet you attack and sensationalise your own failing. I am truly perplexed. The point of law in Sifris J decision is this “in the ordinary course”, this means and I feel embarrassed having to tell you what this means, but no doubt you haven’t been listening.
Here we go:
You are a lawyer, the Priestley 11 establishes the essentials for a law student, this is the start of a practitioner’s career. Not advertising consumers property , not marketing their homes, not saying statements in your websites inferring you are like a real estate agent. This means you are not doing what a consumer would expect a lawyer to do. DO the conveyancing, do a Will, commence proceedings, these are things a consumer expect of a lawyer.
Your version of ethics I feel is so far stuck in the past it exists before the concept of the Court of Chancery.
Yet then you attack another Solicitor, just as you have done to conveyancers, just as you have done to real estate agents and as well as government departments. If you attack, then do so within the system in which society expects you to. Seek declarations, lobby members of parliament for change and then scream it to the world. No one likes a bully, you Sir are very much a bully.
Mr. Mericka, you have failed.
You have demonstrated ignorance of the law, your visceral reaction to comments of others ignore the point in law in such decisions and overall you are an embarrassment to the profession.
Your time in the profession is up.
Mr. Mericka, you have shamed the profession to which I hold the up-most highest regard for. You have let the consumer and public down and no doubt yourself (yet I feel you don’t even know this yet). Your supporters are silent, the “maintain the rage” consumer advocates are steering well clear of you.
What is next? Who will you attack? A change in the law perhaps? I doubt it…
The orders are in, you have to pay, and now the shame attached to the publications in the Age and the Herald Sun are approaching fast. Just like all the dodgy builders, car park shonks, door to door sales people…. you have dragged yourself into their realm. Unfortunately the profession is also dragged into your swill which the rest of us have to deal with when you Sir are long gone.
Do the right thing, don’t embarrass yourself any longer, save yourself the money, don’t renew your practising certificate. Leave the noble profession of the law to those who love it day to day, not twist it to serve themselves.
Leave it to the next generation; your glass house is too broken to fix.
Cindy
I would like to add a comment to this very interesting post from the perspective of a former client of Lawyers Real Estate.
Firstly, I would like to say that I have thoroughly enjoyed reading the posts and the fascinating chain of comments from contributors who are clearly knowledgeable on the subject matter, articulate and compelling in their arguments and assertions.
I am impressed by the level of (emotional) restraint many of the comment posters have shown. Instead of fanning peacock feathers and puffing out chests, points have been driven home with facts, rational arguments and unwavering logic (hooray for the much underrated logic!). However I wasn’t particularly impressed with Mr Mericka, prompting me to post this comment.
So I would like to say to Mr Mericka’s quote “There has never been a single complaint from consumers in the 10 years that we’ve been offering our service.” This doesn’t necessarily mean no one has complained. Consumers will vote with their feet and my husband and I did just that. Sometime in 2004, we used Lawyers Real Estate to sell our house. All went relatively smoothly, we sold the house and moved on. Not long after we contacted them again to get some legal advice on a contract we had signed to purchase a property, the developer had gone broke and we needed legal advice – his advice was go get legal advice…..from a barrister…. Um ok.
Then we contacted them him again to purchase some land and this unfortunately ended with us having to cease the engagement of Lawyers Real Estate half way through the purchase before settlement due to, what I will say in my opinion, was Mr Mericka’s conduct, attitude and difficult behaviour when dealing with the other parties to the transaction (his disdain for everyone in the industry such as banks, conveyancers and real estate agents hung over everything like a black cloud). In short, we contacted another conveyancer half way through and asked Mr Mericka to cease acting for us and send the file on so we could get the purchase finalised minus the attitude and difficulty from him. We never again contacted their office.
Yes it is easy to see whose side mostly everyone is on here but I must admit, there have been times where I wanted him to make sense, I hoped he would emerge from the pool of paranoia and bizarre rantings, like when you are trying to work out who the bad guy is in a movie. Half way through you find yourself thinking he might be ok, a few statements here and there will draw you in, everyone wants to believe in someone who is following their passion, someone who really believes in a cause is an inspiration, a hero, a glimmer of hope in a sometimes routine and robotic world. Your compassionate human side softens your opinion and you almost lean into his cause and BAM! – he lets rip little gems like this: “The reason CAV brought this matter was because they knew that a prosecution would not succeed because they could not come up with a single function or task that we perform that cannot be performed by a lawyer.
Confused? I’m not surprised.
Is there anyone on this page that actually understands what this court case was about? Greg Vincent, perhaps you can explain to this lot that “court case” does not automatically mean “criminal case” – you’ve got a handle on it, haven’t you?
The ignorance is astounding.”
Lost me.
You know what I find astounding? With all due respect to Agents, someone who would go to law school to become a real estate agent.
Why not get a real estate licence, a superhero cape and then go about your mission of reforming ‘this corrupt industry’?. I AM ALL FOR ADVOCATES but there is a saying: “Be the change you want to see in the world”. Everyone knows two wrongs don’t make a right. The movie ends with:
“Mr Mericka, show ‘em they can’t be corrupt, they can’t ignore the law, they can’t behave like that, you don’t ignore the law, you follow the rules! Oh wait. No you don’t.”
Anon
It looks like it runs in the family for Peter Mericka http://www.petermericka.com.au . He just can’t escape he has been labeled by a judge, Peter Mericka is a deceptive and misleading solicitor.
Corrective advertising is now on his website, no more property displayed in his windows and no doubt it will be the papers this weekend.
How’s work Peter? Got enough to cover CAV costs?
city lawyer
Well expressed Cindy, Mr Mericka did offend and burn so many others in the real estate and legal industry that little sympathy is proffered for him.
On his new site he seems to indicate its everybody elses fault and not his and waters down the reasoning for the decision that he just said one thing wrong. Thats not the case he set about acting like an agent without getting a licence and now says he thought he was in the exemption provided. He never said that in any of the threads rather he said he didnt need a licence as he was better qualified. He just doesnt seem to get it and take responsibility for getting it so wrong.
In Nooone V Maricka no 2 paragraphs 19 and 20 The judge expressed his concern that the Defendant ” doesnt fully comprehend the extent of their conduct. and ” they dont understand the law”
the case is here :http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VSC/2012/2.html?stem=0&synonyms=0&query=noone%20and%20mericka
I think the posting reflects the judges concern and in my view wrongly states the circumstances and to advertise it under the corrective advertisements in the paper and website is bordering on contempt.
I dont think the issue is over just yet
city lawyer
I should just explain my last paragraph in my post above . when I say the posting I am referring to http://www.petermericka.com.au and his latest lengthy view headed “What’s all this about misleading and deceptive?” which anon provided a link to.
The judges concern in mericka no2 case as quoted in my post above has been proved correct by peter merickas new website and topic. His action in providing a link from the old websites to this new topic as well as promotoing the link under the newspaper publications not only leaves some readers with the view ( his view) that CAV may have been too strong, (which is not the case), but also undermines the purpose of the advertisment and leaves CAV without a right to reply.
keen observer
Ive looked at peter merickas site above and cannot understand why he says “he made one silly mistake” as he said he didnt need a licence to sell real estate.
It seems there is a lot more to it than one silly mistake, the Judge said ;
“The defendants are involved in or responsible for the ongoing and systematic marketing and advertising of clients’ properties. This is not the ordinary function of a lawyer. Rather, it is engaging in the business of a real estate agent,”
The judge also said in No 2 case (above) that the first defendant appears to be looking for “vindication and approval” I believe his new website continues this and CAV should look again his conduct is most unprofessional.
city lawyer
Back on 2 September 2010 on the previous thread Peter Mericka responded to Enzo Raimando post and said
“Hi Enzo,
First, let me point out that I am more qualified and experienced than you are in the law and in the sale of real estate. I also have a greater knowledge of the Estate Agents Act 1980 and the Legal Profession Act 2004 than you do, and so I feel that I am better qualified than you are to comment on the legal status of Lawyers Real Estate and its operations.”
I wonder if he has sent an apology to Enzo?
George Konidaris
I haven’t read the judgment but I am not surprised by the result. I am curious as to why Peter is saying that CAV wants to shut him down even though he does now have a RE licence and why he is saying that a person can not operate both an Estate Agent’s office and a Law Office (one stop shop scenario) peven though both licences are held?
Rohan Hamer
I too am a 2 time previous client of Lawyers Real Estate and about to become a third, and would like to offer up my experiences.
Firstly I don’t know about all the legal legislation and what laws have or haven’t been broken by whom. Suffice to say after using Google to look up Lawyers Real Estate’s contact details, I came across this and many other articles, posts and blogs on the subject of the court case against LRE.
In my view almost everything I have read is a thinly veiled attempt at pushing the line that suits the writer. Nobody has really commented (apart from Cindy) from an objective point of view, and all are guilty of ranting in their own way (perhaps even me now).
So here is my story;
When I first became aware of LRE I was beginning on the journey of selling my first house. As with all things in life, experience is the best teacher, and given I had never been involved in selling a house before, I was as green and naive as anyone. I initially consulted the elders in my family, who sat me down and gave me the benefit of their many combined years of experience, told me what to say, and interestingly told me what to watch out for. This last part worried me, “what to watch out for”. Why was I going to need this? Wasn’t the agent going to be my representative and act in my best interest? The Elders reply was along the lines of “Real Estate agents will try and rip you off, They play both sides of the fence with the sole purpose of maximising their commission. It’s unfortunate but that is just the way it is, there is no alternative, you have to use a Real Estate Agent to sell a house”
By now I was getting seriously worried about my ability to get through this without some sort of permanent financial scaring, I needed help and something much more comforting than the wisdom of past generations. I needed somebody squarely in my corner and nowhere else, someone who would protect me from my silly mistakes, and ultimately help me get the job done.
It was then I found LRE, and it all seemed a bit too good to be true, I read everything I could about their services, and widely distributed this information to friends and acquaintances to see if they could spot the scam. None could.
So I “signed” with LRA (there was no exclusivity contract) and for the first time, felt safe in the hands of a lawyer.
To cut to the chase, I sold my house and it cost me 1/5 of the price that the Real Estate Agents wanted to charge for the same work. I ran the open for inspections and without a single exception (as we made a point of asking every visitor) they all were surprised to find out we were the owners, but much preferred to talk to us, because they didn’t trust Real Estate Agents….. how telling.
Sometime later I sold another house with a similar result, and I’m now going back for a third, and why wouldn’t I? LRE saved me money, buckets of it, and provided me with everything I needed to get the job done. Sure I did a little more legwork, but at all times I was in control of selling my houses, and not refused entry into my own home when potential buyers were being shown around. I knew what was being said and offered, and with LRE watching my back felt confident the whole way.
So what has all this got to do with LRE being taken to court? Probably not much really, but the point I am trying to make is LRE was offering an alternative to the age old monopoly of the Real Estate Agents, for a flat fee regardless of the sale price. They only ever dealt with me and never met any potential buyers until it was time to sign the contract. In short they were on my side, and not both sides i.e. their own. As a side note, I’m not even sure how in this day and age, not having a clear line of division between two parties in a contract could even be legal, but as I have stated, I know nothing about the law. Then again perhaps it’s more about “the way it’s always been done”?
During our meetings Peter spoke many times about his belief in what he was doing, and I was never in doubt that he was acting within the law as a lawyer. It seems now that this was not true, but it was never hidden from me that he was just a lawyer and not a Real Estate Agent. In fact that was the whole point, in my view he was bound by the law as a lawyer, much tighter than a Real Estate Agent (my view only)
There is also a lot of attacks about the character of posters here (in both directions) and in my experience that is the sign of passion and belief in ones convictions. Personally I would rather have allies who fight hard for what they believe is right, and in so doing so fight for me, rather than one that accepts the status quo. So in my dealings with LRE, do I think they are honest and reputable? Yes and am I happy with their alternative to the use of a Real Estate Agent and the saving of commission fees? Absolutely.
As for the other criticisms levelled at LRE and Peter Mericka in particular, about his online presence and comments, I don’t really care, I am selling my third house in my lifetime, and so by definition, it is not a common occurrence. I don’t have a particular axe to grind about the industry, as I am an infrequent user of it, as would be the vast majority of others. But what I did, and do, want is to pay a fair price for a fair service provided, and in my opinion commission based systems such as those employed by Real Estate Agents are not fair. Regardless of the outcome for LRE, the tide is slowly turning. The way people do business is much different to the ways of old, and long term relationships with services such as lawyers and Real Estate Agents (just to name two) are becoming less of the norm. The next generation are dynamic and will chase the best deal at the time, and unless the system changes, it won’t be from a Real Estate Agent, but more likely Ebay or some other online provider (I wonder if they will need a Real Estate license….)
Well it looks like I too am guilty of pushing my rant, and it’s also clear I am a supporter of LRE (and others like them), but only by experience and not because I have some vested interest in the industry, and for the record, I have no association with LRE, Peter Mericka or anyone else from that company or any company in the Real Estate industry, other than what I have detailed above.
I am just a consumer who likes the product on offer.
Regards
Rohan Hamer
Emma
Rohan please take the time to read the judgement and also the the final orders for your own peace of mind and education.
No one is disputing the fact that Mr Mericka might have a good idea to compete with Real Estate Agents or the fact he makes his customers feel ‘comfortable’ to sell their house through a Lawyer. However think about the following…
A Judge of the Supreme Court has clearly found Mr Mericka, a Lawyer, to have been breaking the law. Furthermore the Judge comments in his orders that Mr Mericka does not appear to understand why this judgement has been made against him (this is a big statement from a Judge to a Lawyer and this is also clear to us that understand the law). Mr Mericka is then ordered to stop selling Real Estate, post on two of his web sites, the Herald Sun and the Age a clear notice to consumers (as I am sure you have seen). This is not a small ‘glitch’ against your name, this is huge, this is the Supreme Court of Victoria that says “Mr Mericka you have clearly broken the law”.
The law is there to protect us all and if a lawyer out of all people does not (or refuses) to follow the law… is this really the type of person you want to be trusting your biggest assets or legal matters to? Lawyers are meant to uphold the law and are held to a higher standard, not break the law and rub legislation in the mud just because it doesn’t suit their own personal objective.
If Mr Mericka has trouble understanding and following clear legislation what else is he doing (or not doing). Im not sure this is the type of character I would be looking for in a lawyer.
vic Del Vecchio
Emma,
I understand exactly what you are saying. I don’t think the Supreme court’s judgement is at all ambiguous.
However, I dont think the judge said that he was not permitted to sell real estate. Peter Mericka can only sell real estate if he has a licence and HE HAS ONE. The court case refers to the period that he DID NOT HAVE A LICENCE.
You are purporting that he does not have the character to sell real estate. Well, let the licencing board of Victoria decide this and rescind his licence if they think he does not have the “Character”.
Glenn Batten
The problem Vic is that he conducted his real estate sales through two businesses, and they never had a license nor do they now. He has one personally but when you conduct business as a company, the company also has to be licensed.
It has been interesting to see the reaction from the legal fraternity regarding the whole issue. I think the next issues for Peter will be whether he considers an appeal and will anybody including CAV challenge his right to practice as a lawyer and as a real estate agent.
My whole issue with Peter’s position has always been that he needed a real estate license and that turned out to also be the opinion of the Supreme Court of Victoria. I have stated many times before, I think he has a great niche business. There are clients that will engage him just as they have in the past because he is not a traditional real estate agent. But IMHO it will always be a niche offering much the same as his mate Neil’s positioning in the marketplace.
I hold out hope that he just gets on with business now.
vic Del Vecchio
That’s interesting Glenn. I would have thought that a licence can only be given to an individual. Notwithstanding that a company is a separate legal entity, only an individual can sit for exams and pass to qualify for a licence.
Here in Tasmania, there are companies that own real estate businesses, where the principal/director of the company holds the licence. I assumed that this was the case with Peter M.
In fact, on a related issue, a number of real estate agencies, in Tassie, are owned by an individual who runs the day to day business only ho;lding a reps licence, whilst a retired fully qualified agent holds a directorship in the company and does not run the day to day operations. He simply gets a fee for use of his name.
Not a good system but it happens.
Glenn Batten
I cant see TAS being any different than the other states Vic. A company has to be licensed AND there has to be a licensed individual in charge that has met all the requirements. Both the company and the licensee needs to be licensed.
Re your examples, if the official licensee is not in effective charge of the day to day operations of the office then I think they may be breaking the law… I can’t see how Tasmania is any different and you can’t rent out your license for a fee and such deals are a timebomb waiting to go off and should be kept out of the industry.
vic Del Vecchio
Glenn,
It is happening here. I did some consultancy work for an agency where the “licensee” happened to come in and do his monthly audit on the trust account to cover his arse. I refused to do anything further for them.
Had a good talk to him and as I described above he was “renting” his licence out. He also mentioned that it was common place practice. Maybe the same on the mainland. The owner of the business had done his two week reps course only.
Another example is in the reverse. A local real estate agent sold his business to an local businessman, who did not have any RE training. The agent kept his name in the company to “fulfill” the requirement. Needless to say the business is no longer operating.
city lawyer
Hello Glen and Vic
Peter Mericka did get his licence for his companies both the trading name and PTY LTD as lawyers real estate on 11 May 2012 . see below link
https://online.justice.vic.gov.au/cav/bla-estate-agent-partial-extract?orgnum=107397&mode=E&result_page=1
Glen, he should have taken your advice all those years ago. Im guessing the $1,000 fee or what ever it is would be better than a legal bill in excess of $500,000 plus whatever CAV costs will be.
I dont think he will “just get on with business” if you read his current inflammatory site at http://www.petermericka.com.au where he seeks vindication and waters down his version of the whole story making out Consumers affairs to be the bad boy.
vic Del Vecchio
Hi City Lawyer and Glenn,
I accept your explanation that Peter Mericka had to have a licence for himself, his firm and his company and that he now seems to have this covered.
Reading Peter’s site information and in particular letters which flowed between him, CAV and LIV I can understand how he felt he was in a sound legal position to continue to sell without a licence. I can also understand how he believed he could win a case brought to court by CAV. After all, CAV did not appear to have had any “consumer” complaints lodged against him which makes me wonder why it became an issue for CAV to take up.
The matter has become now more than whether Peter Mericka himself can operate as a real estate agent, but has become a cause for Peter to fight. I have to admire his persistence.
The next step for Peter could be the making of a TV documentary on the saga of the past 10 years and Peter’s assertions re the “injustices” inflicted on his father and grandfather. The mind boggles at what could be put together.
city lawyer
Vic I think you are a little too sympathetic for Peter.
Firstly there area number of lawyers who have both licences. A simple reading of the exemption in the estate agents act made it pretty clear it was a subjective test on “the ordinary course of a legal practitioner”. Whilst Peter’s idea was, as Greg says , a Niche market, he should have, as a lawyer looked at the exemption and should have seen he was not operating in the ordinary course of a lawyer. To most lawyers it was blatantly obvious the exemption didnt apply to his type of operation.
Secondly Peter never said in either this thread or the other related thread that he relied on the exemption. He actually said he didnt need a licence, as he was “better qualified” and that the work that he does was all legal work and he didnt need to get one as no one could distill the functions of a real estate agent. At one point he said what he offers is a complete conveyancing package (and adds on the selling part ) and just assists the vendor client with selling.
The Court didnt accept that version but I really think apart form his generalisations that the whole real estate industry is corrupt he went too far with his corruption allegations and if you just re-watch the today tonight interview (on the other thread) his arrogance of predicting to all that he would win and CAV would pay his costs was laying down the gauntlet for them to act. And they did, so he got what he asked for and there is not much sympathy for him as most in the legal, conveyancing and real estate industry have had enough of his rantings, uncooperative nature, and bullying nature.
Rohan Hamer
I fully understand what I am doing, and have complete peace of mind, but thanks for your concern Emma.
The way I see it is quite simple, I wanted an alternative to a Real Estate Agent and LRE was offering it.
I accept that what LRE was doing has now turned out to have been illegal, but they did not set out to break the law, they believed they were offering an alternative to the traditional, and all within the law.
Now you can snipe all you like about if he was any kind of real lawyer he would have known the law and so forth, but it was not that clear cut, it still took a court case to determine the ruling, as both sides believed they were right. After all every case that ever goes to court has at least 1 lawyer who is proven wrong.
So I have no problem with LRE’s morals as they believed they were adhering to the law and providing a service that I wanted. They openly advertised the facts around what they were doing, to me as a customer, and everybody else who researched them via ther web site, and yet they were allowed to continue for at least 10 years that I knew of. If it was so obvious a breach of the law, why did it take 10 years to come to a head? the simple answer is because it was not a clear case, and LRE believed they were operating legally.
It just seems quite simple to me, LRE is arguing that they operated for over 10 years without any legal challenge to their “modus operandi”, when suddenly it was decided to challenge the legality of what they were doing. Why? could it have been an orchestrated attempt to wipe out somebody who was starting to make people like myself realise that the Real Estate commission system is at best questionable?
For the record, I am making no call on the personality of LRE’s owners and whether they are outspoken loud mouths, bullies or anything else, perhaps they are, I hardly know them. But if they were then that would be a matter of how I perceived their customer service, and whether I used them again or “voted with my legs” (as another has previously said), and has absolutely no bearing on their ability to do the job for which I engaged them.
Too much of what has been written about this affair has nothing to do with the facts, and is more about nasty personal views, of both a person and the process.
And once again I state that I have no connection to anybody or anything to do with this case, I’m just a customer, who by the way, did not need the services of anybody to sell my current property, and only the services of LRE to do the paperwork. This saved me (and the buyer) over 25K in agents commission, for a house that was so unique, it almost sold itself. I bet no agent would have offered to reduce the commission because the house sold in 1 day………
My last point, is everything I have written is my opinion, and it is not my intention to put words in anybody mouth, nor am I speaking on behalf of anybody other than myself.
Regards
Rohan Hamer
city lawyer
Rohan you make some good points from a customer point of view.
I trust that you have read all the comments in this blog and the previous one Are LRE breaking the law.
I am sure you would be surprised to see the way Mr Mericka speaks back to those who profer an alternate opinion or challenge his comments and I guess you would wonder if by his insolate and belittling responses it is the same person you know. As you said it doesnt matter as you are price and service conscious and thats your choice.
Most of us in real estate and law industry try to provide good service to our clients and build our reputation both with customers and peers to have professional respect about our service and ourself.
Some like to be on the edge and blame everyone else, (see his current website) and tell everyone else what they are doing wrong like Peter’s continual assertion the whole real estate industry is corrupt including those who have the responsibility to enforce it. His mission is to change it.
Your comments offer a different view as a customer and as everyone said here the idea is innovative (although scotland have done it for years) but there is two ways to build your business, promote the positive things that you ahve to offer or promote why everyone else is wrong leaving narrow minded people to follow the negative.
Rohan Hamer
Your making my point for me.
I’m not defending LRE and their public attitude, or contempt, or loud mouth comments or anything else they may have done in that vein. If that is how a company chooses to display their professionalism, then so be it. Potential customers may take offence and walk away, and they are perfectly within their rights to do so.
But that has nothing to so with the court case.
Being openly opiniated or anything else they have been accused of is at worse bad customer service. I have never seen it, but I accept others have.
I applaud companies that strive for better customer service, and improvement, but just because another company may not, does not make them automatically guilty of some offence.
If necessary let LRE fail through poor customer service if that is what you believe, but don’t judge them guilty of something else for the same reason.
By way of an example, we all know of the brilliant surgeon who has an appalling bedside manner, yet we still want him to operate on us, because we are hiring him for his surgical skills, and not his persona.
LRE may be all the things you say and have a lousy bed side manner, but they also are dedicated and passionate about what they are doing, which includes industry reform for the benefit of their customers.
Yes it appears they got it wrong, and have been judged so, but if necessary condem them for that, and that only.
Remember there will always be those that want the traditional “full” service of a real estate agent, but for those like myself that don’t, there should be an alternative.
Regards
Rohan Hamer
George Konidaris
Rohan, it is great to see that you are happy with Peter’s services, but your whole premise appears to be based upon the assumption that Peter achieved a better price for you than an estate agent would have. By saving some commission on agent’s fees, doesn’t necessarily mean that LRE achieved a better price than would otherwise have been the case had you engaged an agent. Perhaps having a real estate agent might not have made a difference or you may have been worse off but you can’t know for sure that you were better off financially using LRE’s services. You also did a lot of the work yourself and that time you spent also has a cost to you.
As for your elders giving you the advice about how to sell your home, most of us have heard the stories of dodgy agents, lawyers, mechanics, doctors etc. You can’t assume that all agents are dodgy just because of some bad apples.
Whether LRE provides a good service or not is not the issue about the court case. If there is a law that requires estate agents to be licensed or those running estate agent businesses to be licensed, then the agent or business owner should get the licence.
Peter thought that he found a loophole to get around the licensing laws because of his legal qualifications but the Supreme Court thought otherwise. Perhaps he should not have taunted CAV to bring the case against him but he was quite outspoken about it and adamant he was in the right.
So no one is saying that Peter should not run his business model for consumers such as yourself who seem perfectly happy with his services, he just made the mistake of taking the risk of running LRE without a real estate licence (which apparently he now has).
If he had obtained the licence in the first place (even if he thought it wasn’t necessary) and perhaps not taunted or challenged CAV to take him to court, he would probably have avoided all the inconvenience, expense etc associated with the court case.
Rohan Hamer
George, you seem to be implying that real estate agents have some magic method to achieve above market value prices, or a secret stash of potential buyers that only they have access to.
The reality is all buyers find properties in the same way, and so long as you use the same methods, you will attract the same buyers. There is no magic here anymore, the Internet has seen to that. Nobody drives around all the agents and looks in their windows like they used to, if your lucky you might get a glance from somebody waiting for their fish and chips on a busy Friday night.
The playing field is almost completely flat these days, and the idea of having a potential buyer as yours and no one else’s is just not true.
BTW do you know exactly how the LRE method works and how the pricing is established? For the record the only extra work I did was run the open for inspections, which by the way was universally acknowledged by the buyers to be a good thing.
Now I know there are always exceptions to the rule, and stories of unbelievable prices, but they are not the norm, in either model. The important thing is that either model does not exclude the possibility of them happening, should the planets be aligned that day. The LRE method certainly allows for vigorous offer and counter offer by potential buyers, and I have seen it first hand myself.
I know all my previous posts here have been pretty harsh on the traditional real estate model, but I’m not anti real estate agents, just anti commission based fees.
Take a look around, and you will see more agencies emerging offering flat rate fees, it is enevidable that eventually it will become the norm.
Technology and the Internet is the great leveller here, it shifts the knowledge and balance over to the buyer and seller, who are now more informed than ever, and are prepared to challenge the notion of why it costs more to sell a property that is worth more.
Conveyancing will be next, I already know of people who do their own, as the information is readily available if you know where to look. The advantage they have is of course they offer a flat rate fee, so most people probably won’t bother.
And lastly the lawyers, and yes possibly even LRE. Standard house sale contracts are just bought from a specialist contract writing company and can be used for most cases, they will become like D.I.Y. Will kits.
So how do you survive?
Simple provide good service for a reasonable price. I will always pay somebody to do something for me if I believe it is good value for money. That’s why I don’t mow my own lawns……
Regards
Rohan Hamer
Otis Papadopoulos
Rohan,
You need an introductory lesson in marketing. Have you ever heard the saying “you get what you pay for”? Well, if you pay any less than $1,000 in marketing costs, chances are you will not be able to afford:
a) Decent internet exposure (you’ll probably fall back to the lower spots as a non-feature property on realestate.com)
b) DIY photography (if you don’t have decent photographs taken by a professional then you’re not going to attract enough buyers).
c) Print media – local papers, magazines etc
d) An agent’s email database (in some cases this has tens of thousands of current buyers, depending on the agency).
When you employ somebody with budget agency fees (budget commission) then don’t expect there to be any incentive from their end to actually work on your property and negotiate a decent price for you. An agent’s job (or their “magic method” as you put it) is to attract as many buyers to your home and “negotiate” the best price possible. LRE and most Jenman models fail in category (A) and category (B) is non-existent or entirely up to the vendor.
If everything is now “internet based” then buy all of your gadgets from budget Asian sites like shoppingsquare.com and let me know how professional the experience is. In fact, navigating from point A to point B is a nightmare, let alone their sales service. Peter’s current conveyancing website is also a shambles, the graphical user interface is a mess and far too busy. Peter should employ a web-designer for $5,000 to make it more visually appealing. This is 2012 afterall… or maybe he too is “getting what he paid for”.
Save your pennies, Rohan. Save $5,000 to $10,000 in commission and advertising combined, and sell your home for $50,000 below market value. If you didn’t sell well below market value and lose out by going through LRE, then you’re one of the very few and I congratulate you.
Regards,
Otis.
George Konidaris
Rohan
If you are “anti commission commission based fees” then you must be advocating a service based fee structure for agents. But what would be the incentive then for an agent to get the vendor the best price if the agent gets paid the same no matter what happens. Sale or no Sale?
How many vendors will be lining up to pay agents a fee for their service if no sale is achieved?
You have to understand that what is added to the commission is the risk of an agent not getting paid at all for the many hours spent marketing a property if it doesn’t sell. Ie the good needs to cover the bad. That is why there is a loading for that contingency in a commission.
If agents were paid on the basis you are suggesting, then probably their fees will be much less because they would be paid for the time lost in marketing unsuccessful campaigns or dealing with unrealistic vendors but I would say most vendors would prefer to pay commission based sales and negotiate the commission rate with an agent rather than pay on a fee for service basis as you are advocating
Sandman
Rohan Hamer sounds suspiciously like a previous poster … Just sayin’
Anon
Peter Mericka simply can’t deal with being labeled as a deceptive and misleading lawyer. Stupid enough to challenge Consumer Affairs he has now attacked the judiciary.
Peter Mericka post his most spectacular loss and failure in the Supreme Court looks like he will be having another day in court, well at least VCAT anyway. You see it appears Peter Mericka couldn’t handle that Justice Sifris found in favor of Consumer Affairs and noted his actions as a lawyer were deceptive and misleading, he went on the attack just like any internet troll would.
Peter started to fire off letter after letter now professing that judiciary were peddling in corrupt behavior (there’s that favorite word of Peter’s) such as “laundering of corrupt conduct” he has called for the resignation of the Chief Justice of the highest court in Victoria! Relentless in his pursuit of “truth, justice in the Captain Mericka way” the Legal Services Commissioner has now charged Peter Mericka. The charges are:
Charge 1
The Respondent is guilty of professional misconduct within the meaning of section 4.4.3(1) OF THE Act, namely misconduct at common law, in that in the period between 29 May 2012 and 30 August 2012, he signed and caused three letters (dated 29 May 2012, 19 August 2012 and 30 August 2012 respectively) to be sent to the Chief Justice of the Supreme Court which, by reason of the content of the letters, constituted conduct that other lawyers of good repute and competency would regard as dishonourable and disgraceful.
Charge 2
The Respondent is guilty of professional misconduct within the meaning of section 4.4.3(1) of the Act, namely misconduct at common law, in that on or about 19 February 2013 he signed and caused a letter to be sent to the Premier of Victoria and others which, by reason of the content of the letter, constituted conduct that other lawyers of good repute and competency would regard as dishonourable and disgraceful.
Let’s see where this goes, what will happen to Peter Mericka? Considering his age, his retirement plans must be pretty shot, lawyers cost money. The legal profession apparently think he’s not worthy… sit back and watch from afar as Peter Mericka explodes into insignificance (except in his own mind and facebook page).
If you have nothing better to do and want a giggle. Read his own webpage, http://www.petermericka.com
Anon
Anon
Peter Mericka, who now wears the badge of being “deceptive and misleading conduct” by a lawyer courtesy of the Supreme Court of Victoria has gone very quiet. His website http://www.petermericka.com.au where he posted VCAT documents about his latest crusade by saying judges of the Supreme Court were laundering corruption has been pulled down. His facebook pages mention nothing of his battle and neither does his other websites http://www.reic.com.au or http://www.lawyersconveyancing.
Peter please tell us what is happening, you were once the ever courageous consumer advocate however now the silence is deafening. Did you settle your latest dispute with the Legal Services Board or did Mr. Michael McGarvie silence you. The Legal Services Board who regulates lawyers in Victoria still has Peter Mericka on its shame list http://www.lsb.vic.gov.au/court-finding-of-solicitor-selling-real-estate-without-a-licence/
Could Peter Mericka please step up tell us what is going on. Many of us want to know.
Peter Mericka
Hi Everyone,
I am not sure if you are aware of it or not, but this whole mess is the subject of a corruption complaint against Consumer Affairs Victoria (CAV), and is ongoing.
Sure, I was advised by my legal team to obtain an estate agent’s licence as the matter was heading to court, but this only caused show their hand and to disclose their true agenda. Dr Claire Noone, Director of CAV asked the Business Licensing Authority to ensure that any estate agent licence issued to Lawyers Real Estate would be endorsed to state that the holder of the licence could not simultaneously offer legal services. Why would CAV want this other than to ensure that I could not compete with estate agents in any circumstances at all? Actually, I was aware of this strategy way back in 2002 when CAV first threatened me with legal action unless I applied for a licence. You see, by having me apply for a licence back they would have done the same thing, but I didn’t fall for it.
As a result of the ridiculous Supreme Court decision, I am now the only lawyer/conveyancer in Australia who must hold an estate agent’s licence just to provide conveyancing services to my clients. Why? Because CAV will prosecute me if I represent any clients in “negotiations” (which lawyers and conveyancers undertake every day. Even Slater & Gordon Conveyancing had to pull their heads in on this issue, and changed their website to remove the word “negotiation” from the services they offer. Everyone does it, but I’m the only one that CAV requires to be licensed as an estate agent.
Anyway, it ain’t over yet!
Anon
Hey Peter Mericka is it over yet? We can see your rage against the Supreme Court didn’t go unnoticed. Not only now you have the proud badge of “deceptive and misleading” you also can add to your collection “professional misconduct”.
Clearly from the judgement
http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2014/1576.html?
stem=0&synonyms=0&query=%22legal%20practice%20list%22%20%20mericka
We can you see you pleaded guilty to your “dishonourable and disgraceful” behaviour.