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REIQ Journal : December January 2009
LEGAL ISSUES 37 Paul Hopkins, Senior Partner, Carter Newell Lawyers Consequences of the breaches The group cooperated fully with the ACCC and consented to orders being made against it in the Federal Court. The Court granted an injunction restraining the group from making similar misleading representations in relation to any other property developments they are involved in for five years. The group also offered a court-enforceable undertaking which required them to: Publish notices regarding the status of the construction of the golf course in the Gold Coast Bulletin; Post periodic notices regarding the status of the construction of the golf course via a prominent hyperlink on the homepage of the group’s official website; and Send periodic notices regarding the status of the construction of the golf course by ordinary post to each street address in the estate. The group also undertook to implement a trade practices law compliance program and was required to pay the ACCC’s costs of the proceedings. Conclusion This case is another example of the types of representations that will be captured under the misleading and deceptive conduct provisions of the TPA. Section 52 of the TPA is far reaching in its application. Any statement that is likely to mislead or deceive the recipient, regardless of the intention of the person making the statement, is a contravention of the TPA. While the group involved have now obtained final approval from the GCCC and construction of the golf course has commenced, at the time of sending the letter, the representations made were factually incorrect and were therefore found to be likely to mislead or deceive a potential purchaser in relation to the progress of construction of the golf course. It is important that real estate agents are mindful when making representations regarding the progress or development of works relating to a property. To avoid falling foul of the consumer protection legislation, an agent must be certain that all representations made can be substantiated. Principals… IS IT TIME FOR A HEALTH CHECK? Is your Rent Roll operating at peak performance? How do you really know? It’s hard to see the ‘big picture’ when you are in the frame. Even the most experienced Principal or Property Manager can miss underlying cracks in the Property Management Department that need attention to maximise your income and Rent Roll value. Your Rent Roll is a valuable income producing Asset. It’s worth the attention … now, more than ever before. Real Estate Dynamics are Rent Roll specialists. Find out how our Audits will benefit you. Call 1300 734 596 REIQ Journal December 2008/January 2009