Melbourne Property v St Kilda Estates - [2020] VCC 570

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMERCIAL DIVISION
GENERAL cASES LIST

Revised
(Not) Restricted
Suitable for Publication

Case No. CI-16-01377

MELBOURNE PROPERTY INVESTMENTS REAL ESTATE PTY LTD (ACN 088 926 014)		Plaintiff
v
ST KILDA ESTATES (NO 2) PTY LTD (ACN 147 530 103)		First Defendant
and
THE REAL ESTATE INSTITUTE OF VICTORIA LIMITED (ACN 004 210 897)	Second Defendant

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JUDGE:	HER HONOUR JUDGE MARKS
WHERE HELD:	Melbourne
DATE OF HEARING:	20 November 2019, with further submissions filed up to 25 February 2020
DATE OF JUDGMENT:	8 May 2020
CASE MAY BE CITED AS:	Melbourne Property v St Kilda Estates
MEDIUM NEUTRAL CITATION:	[2020] VCC 570

REASONS FOR JUDGMENT
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SALE OF LAND – Estate Agents – Regulated estate agent authority – Estate Agents Act 1980 (Vic), s49A disclosure requirements – Agent barred from commission and liable to penalty if exclusive sale authority is non-compliant – whether rebate statement contained in exclusive sales authority was in ‘a form approved by the Director’ of Consumer Affairs, within the meaning of s49A(6) – whether strict or substantial compliance required – whether there was substantial compliance.

STATUTORY INTERPRETATION – meaning of ‘in a form approved by the Director’ under s49A(6) of the Estate Agents Act 1980 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the plaintiff	Mr M Ravech	Holman Webb Lawyers
For the defendant	Mr P Ehrlich QC with Mr J Claridge	Property and Business Lawyers
For the second defendant	Mr S J Hibble	Gilchrist Connell

Contents

Summary

ESA rebate statement

The Director’s Forms

Short Form
Long Form

Estate Agents Act s50 and s49A
History and purpose
Rebate statement is in a form approved by the Director
Rebate statement substantially complied with a form approved by the Director

Conclusion

HER HONOUR:

Summary

The first defendant was a vendor seeking to sell its property. On 15 April 2015 the vendor signed an exclusive sales authority (ESA) with the plaintiff, a real estate agent (the agent). Subsequently, the agent marketed and sold the vendor’s property. The agent has sued for the commission it says is due under the ESA.
Section 49A of the Estate Agents Act1980 (Vic) requires certain information set out in s49A(4) to be included in exclusive sales authorities as a precondition of agents recovering commission.
The parties agree that in this case, information required by s49A(4)(c) was not included in the ESA rebate statement. They also agreed that that does not matter, provided the ESA rebate statement is ‘in the form approved by the Director’. Section 49A(6) of the Act has the effect that if the rebate statement contained in the ESA ‘is in the form approved’ by the Director of Consumer Affairs Victoria (the Director) then it does not fail to comply with s49A(4) merely because it does not contain the statements referred to in s49(4)(a) or (c).
The question to be decided is whether the ESA rebate statement is ‘in a form approved by the Director’ within the meaning of s49A(6) of the Estate Agents Act 1980 (Vic).

ESA rebate statement

The ESA consists of a five page Real Estate Institute of Victoria (REIV) Exclusive Sale Authority Form. The ESA rebate statement is item 6 of various terms and conditions. It states (bold formatting replicated):
Item 6. Rebate Statement – Section 48A-E of the Act
*The Agent will not be, or is not likely to be, entitled to any rebates. A rebate includes any discount, commission, or other benefit, and includes non- monetary benefits.
(*If entitled to a rebate, complete and attach the rebate statement approved by the Director of Consumer Affairs Victoria, at the time of signing this Authority. The statement can be downloaded at >
The Director had authorised two relevant Forms at the time. Both were available for download from the Consumer Affairs Victoria (CAV) website. Those Forms were described in this proceeding as the ‘Long Form’ and the ‘Short Form’.
The Short Form has a heading Rebate Statement – No Rebate will be Received. As noted above, item 6 of the ESA has a heading: Item 6. Rebate Statement – Section 48A-E of the Act.
The relevant difference which I am asked to consider, between the ESA rebate statement and the Short Form comes down to five words. No Rebate will be Received is included in the Short Form heading, but not in the ESA rebate statement heading. The vendor says that this means that the ESA rebate statement is not ‘in a form approved by the Director’ under s49A(6).
If the rebate statement contained in the ESA is not in the form approved by the Director, then the effect of s49A(6) is that the agent cannot sue for commission.
If the Court were to find the ESA rebate statement was not in the form approved by the Director, the agent would prosecute its alternative case against the REIV (the second defendant). The agent claims that it used the REIV form for its ESA, relying on it as being compliant with the Act.
For the reasons that follow, I am satisfied that the ESA rebate statement is ‘in a form approved by the Director’. The heading to the Short Form is not part of the form of the rebate statement approved by the Director.
In any event, where information is required to be conveyed in an approved form, it is sufficient if the information conveyed is substantially the same as the approved form. I am satisfied that the information conveyed by the ESA rebate statement is substantially the same as that conveyed by the Short Form (including the Short Form heading). That is, relevantly to the issue before me, that the agent will not be, or is not likely to be, entitled to any rebate.

The Director’s Forms

At the hearing in November 2019, versions of the Short Form and the Long Form that the parties agreed were the relevant ones were produced (as Exhibit 1). Submissions were made about their effect. However, those Forms could not have been the relevant Forms as at the date of the ESA – the dates printed at their footers showed they had been produced after the date the ESA was entered into. I asked the parties to provide the Court with the Short Form and the Long Form available for download on the Director’s website as at the date of the ESA. On 3 December 2019 the parties provided black and white versions of the correct forms (Exhibit 3). They sought to obtain coloured versions of these documents from the Director, but were not successful. They then filed further submissions in late February 2020 in relation to the submissions they sought to make in this proceeding, given the differences between Exhibit 1 and Exhibit 3.
The Short Form and the Long Form approved by the Director as at the time of the ESA (Exhibit 3) are reproduced below.

Short Form

Long Form

Estate Agents Act s50 and s49A

Section 50 of the Act states, relevantly:
(1) An estate agent is not entitled to sue for or recover or retain any commission or money in respect of any outgoings for or in respect of any transaction unless –
…
(b) the agent has complied with section 49A(1) with respect to the engagement or appointment to undertake the transaction and is not in breach of s49A(2) with respect to the engagement or appointment; and
…

Section 49A states, relevantly:
49A Offence not to give certain information about commission
(1)   An estate agent must not obtain, or seek to obtain, any payment from a person in respect of work done by, or on behalf of, the agent or in respect of any outgoings incurred by the agent unless—
(a)the agent holds a written engagement or appointment that is signed by the person (or the person's representative); and
(b)before obtaining the person's signature to the engagement or appointment, the agent (or an agents' representative employed by the agent) informed the person (or the person's agent or representative) that the commission to be paid to the agent under the engagement or appointment and any money to be paid by the person in respect of outgoings were subject to negotiation; and
(c) the engagement or appointment contains—
(i)    details of the commission and outgoings that have been agreed; and
…
(iii) a rebate statement that complies with subsection (4); and
...
(4)   A rebate statement complies with this subsection if it is in a form approved by the Director and it contains—
(a)a statement of whether or not the agent will be, or is likely to be, entitled to any rebate in respect of—
(i)    any outgoings; or
(ii)   any prepayments made by the person engaging or appointing the agent (the client) in respect of any intended expenditure by the agent on the client's behalf; or
(iii) any payments made by the client to another person in respect of the work; and
(b)if such an entitlement will, or is likely to, occur, details of—
(i)    the goods or services to which the rebate relates; and
(ii)   the name of the person providing the rebate; and
(iii) the amount of the rebate that will be attributable to the engagement or appointment, or if that amount is not known at the time the statement is made, an estimate (in dollars) of the amount; and
(c)a statement that the agent is not entitled to retain any rebate and must not charge the client an amount for any expenses that is more than the cost of those expenses; and
(d) any other statements or details required by the regulations.
…
(6)   An estate agent whose rebate statement contained in an engagement or appointment is in a form approved by the Director does not fail to comply with subsection (4) merely because the rebate statement does not contain—
(a)the statement referred to in subsection (4)(a); or
(b)the statement referred to in subsection (4)(c).
(7)   Subsection (6) applies only to a rebate statement contained in an engagement or appointment entered into before the day after the day on which the Justice Legislation Miscellaneous Amendment Act 2018 receives the Royal Assent.

History and purpose

The Court of Appeal decision of Advisory Services Pty Ltd (t/a Ray White St Albans) v Augustin [2018] VSCA 95 (Advisory) helpfully sets out the structure of Part III and Part IV of the Act, and describes the ‘strong and consistent theme of consumer protection’ which runs through Part IV of the Act (see in particular [37]-[42]).
Sections 49A(6) and (7) were inserted into the Act following the Court of Appeal decision of Advisory. That decision arose when an agent sought commission based on a sales authority which included a rebate statement that replicated the wording of the relevant Short Form approved by the Director at that time – but which did not contain certain information required by s49A(4)(c). The issue was whether the sales authority complied with s49A(4) in those circumstances. It was held that it did not, and so the agent was not entitled to commission. The Court of Appeal stated at [50]:
… The authority simply did not say that the agent was not entitled to retain any rebate. Despite the heading ‘No rebate will be received’, the text went on to say, as s 49A(4)(a) contemplates, only that no rebate would be, or was likely to be, received. This fell well short of saying that a rebate could not be retained. There was no statement at all in respect of the agent’s obligation with respect to expenses. The rebate statement therefore did not contain the information required by s 49A(4)(c). As a result, s 49A(4) was not satisfied and s 50 was attracted. It follows that the appeal must fail.
The government decided to amend s49A.
Sections 49A(6) and (7) were added to the Estate Agents Act 1980 (Vic) by the Justice Legislation Miscellaneous Amendment Act 2018 (Vic). It received Royal Assent on 25 September 2018.
The Second Reading Speeches for the Amendment Act were identical in both Houses of Parliament. I have added underlining for emphasis:
Estate Agents Act 1980 — Rebate statements
This Bill makes urgent remedial amendments to the Estate Agents Act 1980 (Estate Agents Act) to address an issue arising from the decisions of the County Court and Court of Appeal in Advisory Services Pty Ltd (trading as Ray White St Albans) v Augustin & Anor ('Advisory Services v Augustin') in order to ensure that vendors pay commissions owed to estate agents under sales authorities.
The Estate Agents Act provides that estate agents must not seek payment for work done on behalf of the vendor unless the written engagement contains a rebate statement that complies with the Act. The Estate Agents Act provides that a rebate statement is compliant if it is in a form approved by the director of Consumer Affairs Victoria (CAV), and contains certain other statements, including a statement that the estate agent is not entitled to retain any rebate, and must not charge the client an amount for any expenses that is more than the cost of the expenses. Estate agents may not sue for, recover or retain any commission in respect of a transaction unless they have complied with these requirements.
For a number of years many estate agents have used sales authorities which include a rebate statement in a form approved by the director of CAV, but do not also include the certain other statements required by the Estate Agents Act. This was highlighted by Advisory Services v Augustin, which held that the sales authority was non-compliant. As such, the estate agent was not entitled to be paid any commissions for their work.
There is a risk that some vendors may seek to use the decision in the Augustin case to refuse to pay commissions to estate agents who have used the non-compliant sales authority for past sales. Whilst action has been taken to prevent this problem from arising for future sales, the risk for past sales remains.
It is therefore appropriate and necessary to retrospectively validate rebate statements that were used in good faith to ensure that estate agents who have legitimately performed work are paid. The Bill therefore amends the Estate Agents Act to provide that an estate agent is not to be taken to have failed to comply with their disclosure requirements only by reason that a sales authority they have entered into does not include the specific statements required by the Act, provided that the authority included a rebate statement in a form approved by the director of CAV.
…
The Explanatory Memorandum for the Amendment Act relevantly sets out (at page 33):
…
Part 7 of the Bill amends the Estate Agents Act 1980 to respond to an issue arising from County Court and Supreme Court proceedings in Advisory Services Pty Ltd (trading as Ray White St Albans) v Augustin & Anor regarding the validity of rebate statements contained in sales authorities used by estate agents. As the rebate statement did not contain the statement required by section 49A(4)(c) of the Estate Agents Act 1980, it was found that it did not comply with requirements of section 49A, meaning the estate agent was not entitled to be paid commissions by the vendor for work undertaken.
Division 1—Rebate statements
Clause 53 provides for the amendment of section 49A of the Estate
                 Agents Act 1980 to insert 2 new subsections. Subsection


49A(6) provides that an estate agent whose rebate statement


contained an engagement or appointment in a form approved


by the Director of Consumer Affairs Victoria does not fail to


comply with section 49A(4) of the Estate Agents Act 1980
                 merely because the rebate statement does not include the


statement referred to in either subsection (4)(a) or (4)(c).
…

Rebate statement is in a form approved by the Director

I am satisfied that the ESA rebate statement is ‘in a form approved by the Director’.
The Macquarie Dictionary (online at 6 May 2020) defines ‘statement’ relevantly as follows:
1.  something stated.
2.
a communication or declaration in speech or writing setting forth facts,


particulars, etc.
…
6.  the act or manner of stating something.
The word ‘form’ is relevantly defined in the Macquarie Dictionary (online at 6 May 2020) as:
…
15.  a set order of words, as for use in religious ritual or in a legal document.
16.  a document with blank spaces to be filled in with particulars: a tax form.
17.  a typical document to be used as a guide in framing others for like cases: a form for a deed.
…
I do not consider that the heading of the Short Form was an integral part of the form of the rebate statement approved by the Director. Similarly, the heading of the Long Form – which simply states Rebate Statement, is not part of the form of that rebate statement approved by the Director. The headings are titles. They are not themselves part of form of the rebate statements approved by the Director.
I consider that the ‘form’ of the rebate statement which the Director approved as set out in the Short Form consisted of:
·the words ‘The agent will not be, or is not likely to be, entitled to any rebates. A rebate includes any discount, commission, or other benefit, and includes non-monetary benefits’; and
·the requirement that signatures be included on the same page as the rebate statement if that statement was on a separate page in an agency authority – (Instructions: If this statement forms a separate page in an agency authority, provision for signatures should be included).
The ‘form’ of the rebate statement approved by the Director as set out in the Long Form included different information (including all the words in the boxed square in the Long Form, commencing with the words: Important Information for Vendors/Landlords.)
But the headings to those Forms were no more part of the ‘form’ of the rebate statements approved by the Director, than the boxed instructions on the Short Forms. Neither the boxed instructions nor the heading to the Forms were required to be replicated in the rebate statements set out in exclusive sales authorities in order for those rebate statements to be in the form approved by the Director under s49A(6).
It was not necessary for the Short Form to be effectively copy-pasted into a sales authority, in order for the rebate statement in that authority to be in the form approved by the Director.
The vendor does not take issue with other differences between the Short Form and the ESA rebate statement (or say that they mean the ESA rebate statement is not in the form approved by the Director):
·The reference to Section 48A-E of the Act included in the heading of item 6 of the ESA (but not in the heading of the Short Form);
·The inclusion of additional wording in item 6 of the ESA, which appears to advise using the Long Form approved by the Director if a vendor is entitled to a rebate (these words are not part of the Short Form):
(*If entitled to a rebate, complete and attach the rebate statement approved by the Director of Consumer Affairs Victoria, at the time of signing this Authority. The statement can be downloaded at >
The vendor submits that the words ‘a form approved by the Director’ in s49(6) refer to the actual Short Form:
30 When section 49A(6) refers to “a form approved by the Director” it is


not referring to the form of words used in the rebate statement. It is


referring to the actual Form approved by the Director for the purposes


of section 49A(4).
31 It could not be otherwise given the use of the phrase “and it contains”


in the chapeau to section 49A(4) and the conforming use of the phrase


“does not contain” in the chapeau to section 49A(6):
“49A(4) A rebate statement complies with this subsection if it is in a form approved by the Director and it contains— …” (underlining added)
…
35 Thus, section 49A(6) draws a distinction between:
(a) the words required to be included as ‘statements’ in a complying


rebate statement by section 49A(4)(a) & (c);
AND
(b) the actual form (rebate statement) in which those statements are


required to be contained.

I reject this analysis. As indicated above, I consider the form of the rebate statement approved by the Director in the Short Form consisted of more than just words. It also included instructions as to the placing of signatures in certain circumstances. And as is shown by the Long Form, the form of the rebate statement approved by the Director can include more than the words set out in s49A(4).
The vendor then submits that the contention that the ESA rebate statement is in a form approved by the Director should be rejected, because:
[66]… it renders the use of the words “in a form approved by the Director” in section 49A(6) redundant. Indeed, if the Plaintiff’s submission was accepted, section 49A(6) would only have been required to read as follows:
“49A(6)~~An estate agent whose~~ A rebate statement contained in an engagement or appointment ~~is in a form approved by the Director~~ does not fail to comply with subsection (4) merely because the rebate statement does not contain—
(a)the statement referred to in subsection (4)(a); or
(b)the statement referred to in subsection (4)(c).”
I reject this interpretation. As set out in the decision at first instance in Advisory Services Pty Ltd v Augustin & Anor [2017] VCC 1195, at [64]-[65]:
… the effect of s49A(4) is that the Authority must be in a form approved by the Director and contain the matters set out in s49A(1). There are other matters that the Director might decide should be included in an Authority, apart from the matters the Act regulates must be included. For example, the second of the two approved forms which agents can download contains the following matters required to be included by the Director that are not required by s49A:
·A heading at the top of the document titled – “Important Information for vendors/landlords”;
·A statement at beginning of document that it is illegal for agent(s) to retain rebate;
·The following words:
“List of rebates:
·any outgoings; or
·any pre-payments made by the person engaging or appointing the agent (the client) in respect of any intended expenditure by the agent on the client’s behalf; or
·any payments made by the client to another person in respect of the work”
·A table to be completed, which sets out the goods or services to which the rebate relates, the name of the person or organisation providing the rebate and the total amount (including GST), stating “if amount not known, provide an estimate”.
The fact that the Director approved the form does not have the effect that therefore it complies with s49A(4)(c). Section 49A requires that an Authority contain the matters set out in s49A(1) as well as being in a form approved by the Director.
(I note that in the extract above, the reference to the ‘second form’ that can be downloaded is a reference to the relevant Long Form. The reference to the ‘heading at the top of that document’ is to the heading ‘Important Information for Vendors/Landlords’, which is a part of the form of the rebate statement set out in the body of the Long Form. It is not a reference to the heading of the Long Form itself.)
The vendor submits that all Forms approved by public authorities contain headings (and a folder of examples of such forms was handed up). But the fact that Forms include headings does not assist in answering the issue here, of whether the heading to the Short Form is part of the ‘form’ of the rebate statement approved by the Director under s49A(6).
The vendor initially argued that the rebate statement needed to be in complete agreement with the Short Form, referring to Re LA v Federated Furnishing Trade Society of Australasia (1993) 41 FCR 151. (As discussed below, it later accepted that substantial agreement was sufficient). Re LA v Federated Furnishing concerned an application made under section 253M(1) of the Industrial Relations Act 1988 (Cth) which, by regulation 98 of the Industrial Relations Regulations 1989 (Cth) ‘must be … in accordance with Form 11’. Gray J held (at p158) that ‘in accordance with’, in that context, meant in complete agreement with Form 11. He continued:
Attention was then directed to the requirement that an application must be "in accordance with" Form 11. Some argument took place on the meaning of the phrase "in accordance with". Counsel for Mr La referred to the definition of "accordance" in the Shorter Oxford Dictionary. He contended that "accordance" in reg 98(1)(a) means "harmony''. In my view, the alternative meaning, "conformity'', is more appropriate. The notion of a document being in conformity with a form is easier to grasp than the notion of the document and the form being in harmony. Alternatively, disconformity is easier to recognise than disharmony. In my view, "in accordance with" in reg 98(1)(a) means in complete agreement with.
Reference was also made to s 25c of the Acts Interpretation Act, under which, unless a contrary intention appears, strict compliance with a form prescribed by an Act is not required and substantial compliance is sufficient. Counsel for the Society pointed to a number of aspects of the regulations which lead to the conclusion that a contrary intention does appear. The most important is the use of the word "must" in reg 98.
Re LA v Federated Furnishing is distinguishable from this case. It concerned a prescribed Form used in relation to an inquiry relating to a ballot of the members of the Federated Furnishing Trade Society of Australasia. Two significant aspects of the Form had not been complied with (see pp. 159-160 of the judgment):
·incorrect details of the facts relied on in support of the application were included (the solicitors had transposed facts on the second pages of the forms, referencing a ballot for the Operative Painters and Decorators Union – not the Federated Furnishing Trade Society); and
·the document did not bear the signature of the applicant (the applicant’s solicitors had signed on their client’s behalf, in place of the applicant himself).
I agree with the REIV’s submissions, that the vendor’s submission:
…conflates the phrase "in a form approved by the Director" (as used in the Act and Amending Act) with "in the Form prescribed by the Director". In other words the [vendor] is submitting that a rebate statement must be in a capital F prescribed form (Prescribed Form), for example, the Prescribed Forms included in the County Court Civil Procedure Rules 2018 (Vic) at pp.463ff.
The agent also submitted that it is relevant that the Court of Appeal included the heading to the relevant sales authority in its decision in Advisory, at [8]. The Court of Appeal there said:
The authority appointing the applicant did not contain a statement in the exact words set out in s 49A(4)(c). The relevant language in the authority was based on one of two forms approved by the Director of Consumer Affairs Victoria and available for download by real estate agents. One of those forms contained the words in s 49A(4)(c) and the other did not. In accordance with the latter form, the authority used in the present case stated, as item 6:
Item 6: Rebate Statement – No Rebate will be received
*The Agent will not be, or is not likely to be, entitled to any rebate. A rebate includes any discount, commission, or other benefit, and includes non-monetary benefits.
(*If entitled to a rebate, complete and attach the rebate statement approved by the Director of Consumer Affairs Victoria, at the time of signing this Authority. The statement can be downloaded at omitted]
However, the Court of Appeal in Advisory did not have the issue which presently requires determination before it.
The parties agreed that the phrase ‘form approved by the Director’ appears nine times in Version 124 of the Act in the following sections:
·s.47A(1)(b) – “Seller must be given estimated selling price”;
·s.47AF(2)(g) – “Statements of information”;

·s.48(3)(d) – “Notice of commission sharing must be given”;

·s.49A(1)(c)(iv) – “Offence not to give certain information about commission”;

·s.49A(4) – “Offence not to give certain information about commission”;

·s.49A(6) – “Offence not to give certain information about commission”;

·s.55(4)(a)(i) – “Restriction on agent purchasing property”;

·s.64(9) – “Annual audit of trust accounts”; and
·s.81(1) – “Claims against the Fund”.

The relevant version as at the time of the ESA was version 117. The phrase occurred six times in that version of the Act:
·s.48(3)(d) – “Notice of commission sharing must be given”;
·s.49A(1)(c)(iv) – “Offence not to give certain information about commission”;

·s.49A(4) – “Offence not to give certain information about commission”;

·s.55(4)(a)(i) – “Restriction on agent purchasing property”;

·s.64(9) – “Annual audit of trust accounts”; and

·s.81(1) – “Claims against the Fund”.

None of the references in those sections assist in construing what the use of those words in s49A(6) mean.

Rebate statement substantially complied with a form approved by the Director

My finding that the ESA rebate statement is in a form approved by the Director determines the matter.
But if I am wrong – and the heading of the Short Form was also required to be replicated in the ESA in order for the ESA rebate statement to be in the form approved by the Director – then in any event I am satisfied that the ESA rebate statement substantially complied with the Short Form rebate statement approved by the Director.
Although initially the vendor argued that strict compliance with the Short Form approved by the Director was required (and that only then would the ‘safe harbour’ provided by s49A(6) be reached) in the course of the hearing it accepted that substantial compliance was sufficient.
Strict compliance with a form prescribed by an Act is generally not required unless a contrary intention appears. There is no contrary intention here.
Section 53 of the Interpretation of Legislation Act 1984 (Vic) states:
Where a form is prescribed by an Act or subordinate instrument for any purpose, any form in or to the like effect of the prescribed form shall, unless the contrary intention appears, be sufficient in law.
In Advisory (at first instance), I said:
[37]The difference between strictly complying and substantially complying is illustrated by the case of Equipment Investments Pty Ltd v M J Dowthwaite & Co Pty Ltd (1969) 16 FLR 23, which involved the interpretation of the Hire Purchase Act 1960 (NSW). There Gibbs J, as he then was, sitting as the Supreme Court of the ACT, considered various questions as to whether the form of a hire purchase agreement before him complied with a number of different requirements of that Act. The first requirement was that a statement had to be given “in accordance with the form” in that Act.   His Honour noted at [31] that:
“…a statement is ‘in accordance’ with the form [within the meaning of that Act] if it is substantially in accordance with it and does not depart from it in any material respect. A divergence from the form would be substantial or material if it caused the statement to convey less information than the form requires or to confuse or mislead the prospective hirer as to the matters which the form is designed to bring to his notice.”
[38]The second question before his Honour related to the fact that the hire purchase agreement was required to specify the date on which the agreement was deemed to have commenced. At [37], his Honour determined that on the proper construction of the agreement, the intention of the parties was that the hiring was to commence on the date of the agreement at [57]. However, his Honour held that the fact that the agreement contained terms from which the date required to be specified could be determined by implication, or by interpreting the agreement, was not sufficient compliance with the Act. The date had to be specified. Anything less was not sufficient compliance. There, strict compliance was required.
[39]Dowthwaite is authority for the following:
·     It is a question of construction of legislation whether particular requirements to include statements or other information in certain agreements must be strictly complied with, or whether substantial compliance will suffice; and
·     Where substantial compliance is sufficient, the statement or information in fact provided must not depart from the wording or form required by the legislation in any material respect, and any divergence which causes the statement or form to convey less information than the legislation requires or to confuse or mislead the class of persons the legislation is intended to protect as to matters required to be brought to their notice will not comply.
The vendor argued that substantial compliance did not occur here because of the failure to include the words ‘No Rebate will be Received’ in the heading to the ESA rebate statement. This means, it says, that the ESA rebate statement is not to ‘like effect’ ‘to the Short Form rebate statement.
It argues that the information that ‘No rebate will be received’ is not advised to the vendor in the ESA rebate statement (and it says this information is included in, and required by, the Short Form, by its heading).
It says this ESA rebate statement is ‘more problematic’ than the rebate statement considered in Advisory, because the words ‘No rebate will be received’ were included in the rebate statement in question there.
However, I am satisfied that substantially the same information – or information to ‘like effect’ – as in the Short Form is conveyed by the ESA rebate statement.
Although the heading of the Short Form (unlike the ESA rebate statement) conveys that ‘No rebate will be received’, the wording in the body of the Short Form (like the ESA rebate statement) conveys that the ‘The agent will not be, or is not likely to be, entitled to any rebates’. (It also specifies that if the agent is entitled to a rebate, a (different) rebate statement should be completed and attached at the time of signing the ESA).
In the course of the hearing I asked Mr Ehrlich QC for the vendor whether the words ‘the agent will not be entitled to any rebates’ were any different to saying, ‘no rebate will be received’. He answered, ‘No’.
He went on to draw the distinction, that unlike in the heading, which only says ‘no rebate will be received’, the body of the Short Form gives an alternative: that the agent is not ‘likely to be entitled to’ any rebates. But he said ‘the consumer is not told which’ of the alternatives it is, whereas with the Short Form Heading the consumer is told that it is the first of the alternatives. He said:
…the heading. It says Rebate statement: No rebate will be received. Now in my respectful submission that’s a better outcome for a consumer than not being told’.
But the consumer is not told by the heading of the Short Form that it is the first of the two alternatives which applies. The consumer is given a heading that picks up one of two alternatives set out below it, and both those alternatives remain in play. (If anything, that is a worse outcome for the consumer).
In any event, since both alternatives are included in the ESA rebate statement, I am satisfied there was substantial compliance with the Short Form.

Conclusion

The question to be decided is whether the ESA rebate statement is ‘in a form approved by the Director’ within the meaning of s49A(6) of the Estate Agents Act 1980 (Vic).
The answer is ‘yes’.
I direct the parties to consider the orders that should be made as a result of these reasons and provide proposed orders by 4.00pm on 15 May 2020. If the parties cannot agree, a hearing may be listed and take place via Zoom.

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Certificate

I certify that these 21 pages are a true copy of the reasons for judgment of Her Honour Judge Marks, delivered on 8 May 2020, revised on 11 May 2020.
Dated: 11 May 2020

Lauren Miller
Associate to Her Honour Judge Marks