VIC Misleading Conduct by Real Estate Agent - File Complaint to VCAT?

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Eddie321123

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27 September 2017
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I would like to make a complaint to VCAT about a real estate agent that I believe has misrepresented or gave the wrong impression about the property (certain feature of the property, i.e. heating/cooling) that I have purchased. Have two questions;

1. When applying through VCAT, there is no obvious case type for property purchase. There is "goods and services" that deals with consumer laws, but property is generally not defined as "goods" and the real estate agency has not provided me with a service, they were simply an agent employed by the previous owner?

2. Would I be better off going after the owner rather than the agent?
 

Rod

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27 May 2014
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What is the problem and what is different now, compared with before purchase?

You are correct in that VCAT may not be able to hear the dispute if it relates to a fixture. Court might be your only option.
 

Eddie321123

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27 September 2017
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its not a fixture, I'm pretty sure that a ducted heating/cooling system would be considered as an integrated feature of the property, similar to a toilet, shower, bathtub etc. The issue in this case is that the ducted heater is a heater only (not heater/cooler) and the heater does not work as it was decommissioned by the body corp a while back. It still turns on and everything is electrically connected so it was not obvious until I went to use it for the first time.
 

Rod

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In legal terms this is a fixture, like a toilet, bathtub etc. The agent is likely to be in the all clear however you'll need to prove it was advertised with heating and cooling and that the previous owner knew it wasn't working to have any chance of success.
 

Eddie321123

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27 September 2017
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Any lawyers around? I just need to know if I can chase a real estate agent for misleading conduct through VCAT under consumer law (section 182) and fair trading act.
 

Rod

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You can't under s 182 ACL. The real estate agent is not the seller for one thing. Unlikely to be negligence, nuisance or trespass for a second and thirdly no goods or services were sold. You purchased land.

Recommend you either see a lawyer for a 1 hr consult to see if you have a cause of action, or put up with it and move on. Your mostly likely cause of action is against the Vendor. The one area the agent might have difficulty with is misleading conduct. But you need a lawyer to review your contract, section 32 and the sales material. The detail is where the important facts are located that will either make or break a case.