Noone v Mericka - [2012] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

COMMERCIAL COURT

List B
No. SCI 4660 of 2010

DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA	Plaintiff
v
PETER MERICKA & ORS	Defendants

---

JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 and 7 December 2011
DATE OF JUDGMENT:	27 March 2012
CASE MAY BE CITED AS:	Noone v Mericka & Ors
MEDIUM NEUTRAL CITATION:	[2012] VSC 101

---

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.

---

APPEARANCES:	Senior counsel	Solicitors
For the Plaintiff	Mr P D Crutchfield SC with Mr R Knowles	Consumer Affairs Victoria
For the Defendants	Mr P N Wikramanayake SC with Mr W Rimmer	Stynes Dixon Lawyers

HIS HONOUR:

A. Introduction

The plaintiff, Dr Claire Noone is the Director of Consumer Affairs Victoria (the ‘Director’).

The first defendant, Peter Mericka is the sole director and secretary of the second defendant, Lawyers Real Estate Pty Ltd (‘Lawyers Real Estate’) and the third defendant, Slod Pty Ltd (‘SLOD’). Mr Mericka is also the sole shareholder of Lawyers Real Estate which is, in turn, the sole shareholder of SLOD.

The Director alleges that the defendants have contravened the Estate Agents Act 1980 (Vic) (the ‘Estate Agents Act’) by, among other things, carrying on the business of an estate agent without the necessary licence. The Director also contends that the defendants have engaged in misleading and deceptive conduct in contravention of the Fair Trading Act 1999 (Vic) (‘FTA’). The defendants contend that they are not carrying on the business of an estate agent and, in any event, that Mr Mericka and Lawyers Real Estate do not require a licence as they are covered by an exemption.

B. Background
Mr Mericka

Mr Mericka is, and at all relevant times has been, an Australian Legal Practitioner within the meaning of the Legal Profession Act 2004 (Vic) (the ‘Legal Profession Act’). Prior to 30 November 2010, he did not hold an estate agent’s licence under the Estate Agents Act (‘estate agent’s licence’).

Mr Mericka has exercised direct and personal control over Lawyers Real Estate and SLOD at all relevant times.

Lawyers Real Estate

Lawyers Real Estate was incorporated on 1 November 2004. It has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Noone v Mericka

Details

AGLC: Noone v Mericka [2012] VSC 101
Case: [2012] VSC 101
Decision Date: 27 March 2012

CaseChat Overview and Summary

The case of Noone v Mericka involved the plaintiffs, Noone, suing the defendants, Mericka and others, concerning the requirement to hold an estate agents licence under the Estate Agents Act 1980 (Vic). The dispute centred on whether the defendants were carrying on a business as estate agents and, if so, whether they were exempt from the licensing requirement under the Act. The matter was heard in the Supreme Court of Victoria.

The court was required to determine several legal issues, including whether the defendants were carrying on a business as estate agents, whether they were exempt from holding a licence under the Estate Agents Act, and whether the exemption applied to an incorporated legal practice. Additionally, the court needed to consider whether the statements made by the defendants regarding the necessity of estate agent registration were misleading or deceptive under the Fair Trading Act 1999 (Vic).

In its judgment, the court found that the defendants were indeed carrying on a business as estate agents. The court held that the exemption provided under section 5(2)(e) of the Estate Agents Act, which applies to Australian legal practitioners, did not extend to an incorporated legal practice. Therefore, the defendants were not exempt from the requirement to hold an estate agents licence. Furthermore, the court concluded that the statements made by the defendants were misleading or deceptive, contravening section 9 of the Fair Trading Act.

The court ordered that the defendants were required to hold an estate agents licence and that they had engaged in conduct that was misleading or deceptive. Further orders may be expected to address the specific penalties and remedies available under the respective Acts.

Orders