QLD Property Agents Act - Court Action Qld or WA?

[WiserNow]

I hired a buyer's agent who is licensed in QLD. The buyer's agent was to research and recommend property investment. The properties weren't recommended well and to cut a very long story short, did not comply with the Australian Consumer Law.

They also did not comply with the Property Agents and Motor Dealers Act Chapter 5 Part 2 Division 2, where the appointment was not on the approved form. In fact the actual details of appointment was poorly documented.

Legal action in WA or QLD? Can the magistrate in WA make a ruling on QLD legislation? If not, could I use the Australian Consumer Law (which is national) and take action in WA?

If QLD is the only option and I have to appear in person can you claim for these costs? Or the costs for someone to represent you?

 

[Sarah J]

Hi Ash,

If you wish to sue under the Australian Consumer Law, which is a commonwealth legislation, you should apply to the Federal Court or the Federal Magistrates' Court. It does not matter in which State you initiate action for federal actions. You would only concern yourself with WA or Qld if you wish to rely on State legislation.

 

[WiserNow]

If the amount claimed does not exceed $10,000 then I could use the Magistrates court in WA - minor case claim?

With the State Legislation is a WA court in a position to rule against a QLD act? Or maybe use the misleading and deceptive conduct in ACL and link to the procedure that should have been followed under the Property Agents Act ?

Looking for a way to avoid action in QLD but commence in WA.

I wasn't aware of the Federal Magistrates Court and went to searched for it and came up with this:

As a result of legislative amendments which recognise the work and status of the Court, the Federal Magistrates Court of Australia is to be known as the Federal Circuit Court of Australia and its judicial officers known as Judges of that Court.

It is expected that these changes will commence on 12 April 2013.
It doesn't change their role.​

 

[Sarah J]

Hi Ash,

Where is the property located? Where do you reside? Why do you wish to initiate proceedings in WA as opposed to Qld? What is the connection with WA?

The Federal Magistrates' Court may have changed their name but their roles and jurisdiction (i.e. powers) still remain the same.

Do you mean the Real Estate and Business Agents Act 1978 (WA)? I can't find what Property Agents Act you are referring to. Which State/territory is this legislation from?

If you wish to argue under the ACL, your better off commencing in the Federal Courts (i.e. Federal Circuit Court of Australia).

Yes, if it does not exceed $10,000 then Magistrates' Small Claims is available.

 

[WiserNow]

Thank you for your response.

I live in WA, buyers agent registered office in qld, properties recommended through Australia. Nothing was purchased just a fee paid for very poor service and questionable practises when presenting the properties for the purpose of a 500,000+ investment.

Property Agents Act http://www.austlii.edu.au/au/legis/qld/consol_act/paamda2000355/index.html#s134

My concern with lodging in qld, although I have a strong case using the section mentioned in my original posting, is having to appear in person. If done via small claims (whatever qld's equivalent) can I claim flights?

What is the benefit of lodging in Federal v Magistrates Small Claims?

 

[Sarah J]

Hi Ash,

Have you had a look at your written contract with the buyers' agents? Is there a clause in the contract that provides for the laws of a particular State to apply? This may assist you in which jurisdiction to initiate action in.

Further, have you had a look at alternatives to the court? There are many bodies to whom you may complain and they may be able to assist you with the dispute. If not, have a look at the bodies contained in this page: Australian Consumer Law complaints and contact.

What exactly is the breach complained of? Is it the irregular appointment of an agent by the company to act on your behalf? If so, how is this appointment irregular? Did it merely fail to follow formalities? Were they acting on beyond their assigned power? And more importantly, how did this result in loss to you?

The benefit of the federal court is that you do not have to deal with the jurisdiction matter. However, federal courts have limited jurisdiction. Choosing forum is complicated and I would suggest speaking with a Legal Advisor: see Community Legal Centre; and asking about the limits or how to go about asking for court jurisdiction.

 

[WiserNow]

Thank you for the time you have taken to respond but I am no further forward in regards to the jurisdiction.

Yes I have had a look previously in the terms and conditions regarding the jurisdiction which will be used - nothing is documented.
Yes I have already gone down the path of approaching the business and putting forward my case, they are not open to a discussion.
Yes I have already lodged a complaint with Fair Trading and they can only assist with mediation and once again the business is not interested in issuing a refund.
I have phoned Legal Aid WA who advised they don't deal with contract law. Even though my question is not about the contract is about simply about the legislation and which court to use.

I explained the simple version of the breach - the part of the Property Agents Act which they did not comply with. That is very black and white. There really is no benefit in going into how they didn't comply with Australian Consumer Law

It is amazes me how such a simple question can be so complicated. Surely it must be documented somewhere.... who has the jurisdiction over a Qld act? If only Qld, if I went to court in WA I could then refer to this but get the ruling under the Australian Consumer Law for misconduct.

From what I can see the Federal Court is a very expensive option and the risk here is the magistrate can rule that parties' cost are paid for by the other party. Whereas the Magistrate court the most I can lose is a filing fee of $94.50

 

[WiserNow]

I have found a part answer to my query from JohnR at
http://www.lawanswers.com.au/threads/non-delivery-of-purchased-bitcoins-from-bitxoin.278/

Hi Jezza90,
The Bitxoin Terms and Conditions has no obvious "Governing Law" clause so if you're a resident of NSW and entered into the contract from NSW, then NSW Civil and Administrative Tribunal (NCAT) should be able to hear your complaint.

Now just whether the Magistrates' court in WA will listen and take into consideration re the breach under the Property Agents Act..