Membership, training, private training services for the Queensland Real Estate industry.

Articles in Category: Member Update

Contents of Real Estate Excellence Member update - emailed to members the first week of each month plus loaded online in the Member updates folder.


Agent ordered to pay $750 000 for 'stealing clients' and database

Rival real estate agent to pay Toops $750,000 after settling case

Harris Real Estate and one of its agents have agreed to pay Toop Real Estate $750,000 after the prominent Adelaide Hills agent used confidential files in breach of her contract and lured clients to Harris.

The settlement, executed in the District Court today, says Hooper used the files to develop business with rival agency Harris Real Estate, where she is currently employed.

Hooper ended her employment at Toop in June 2015 after disciplinary action was taken against her.

At an earlier District Court hearing, Toop sales and marketing CEO Genevieve Toop alleged that Hooper had “cracked” during a meeting at the agency’s Norwood offices in May 2015 when she realised the disciplinary action would make her ineligible for the company’s annual awards.

Hooper ended her seven-year employment at Toop on June 29, 2015, and commenced employment with Harris RE the following day.

The settlement said Hooper executed seven sales agency agreements on behalf of Harris Real Estate while still employed at Toop and altered at least 13 client records in Toop’s customer database by downgrading recorded interest levels of those clients from “hot” or “warm” to “cold”.

Hooper agreed she had printed data of more than 240 clients in Toop’s customer database with the intention of using the data to benefit of Harris Real Estate and had solicited work from 15 people who had done business with Toop.

Hooper also accepted she had enticed another employee of Toop to resign from the agency and take up employment with Harris Real Estate.

Toop’s lawyers had argued Hooper’s actions resulted in close to $30 million in property sales, which would have earned the Toop business commissions of more than $237,000.

 

Both Hooper and second defendant Harris Real Estate were today ordered by Auxiliary Judge Clayton to pay Toop RE $750,000, which includes interest and costs, within 21 days.

“I congratulate the parties and their advisors for arriving at a settlement,” Clayton told the court.

“This result is one which demonstrates commercial nous.”

Hooper was not present at today’s hearing but said in a statement to InDaily that after “a great seven years at Toop and Toop it is disappointing that things have ended this way.”

“It has become clear to me that our current employment contracts do not allow clients to choose who they wish to represent them,” Hooper said.

“This is something that needs to be addressed in the industry in the long term.”

Hooper said she was grateful for the support of Harris Real Estate and was looking forward to moving on “with clear air”.

The Toop family described the settlement as a win on behalf of “quality real estate agencies around Australia” in a statement issued after today’s hearing.

“TeamToop and FamilyToop have made a stand for integrity in business,” the statement said.

While employed at Toop, Hooper took out REISA’s hills salesperson of the year award in 2014. 

InDaily has contacted Harris Real Estate founder Phil Harris for comment. Sourced from www.indaily.com.au September 24 2018

QCAT update - counter applications and naming the parties

Two new developments since I presented the QCAT special one day event earlier this year throughout QLD

The Principal Registrar of QCAT has responded to my concerns for industry Click here and review my concerns (scroll down blog) where some registries are requiring the agency to be named separate on the paperwork to QCAT, and or will not allow lessor name represented by lessor. My suggestion as per the advice received, is to download and print the below fact sheet and take to the registry to show staff who try to direct your agency on how the paperwork is to be completed. 
 

How to identify the parties QCAT Fact sheet

Members of Real Estate Excellence will receive the above, plus more information in the August member update 

Members of Real Estate Excellence;  if you require any best practice advice or support on this matter, or any other matter, please email us.

Submissions instead of counter application. 

As per the following legislation, submissions can be written to tribunal instead of a counter application. Real Estate Excellence recommends that counter applications be done, particularly if there are monies being claimed against the tenant who has made application.

 From QCAT rules

 43 No responses for particular minor civil disputes

(1) A party to a proceeding for a minor civil dispute other than a minor debt claim can not respond to the application for the proceeding.

(2) Subrule (1) does not prevent the party from—

(a) making a counter-application; or

(b) giving the tribunal evidence in writing, or making

written submissions to the tribunal, in a way allowed by

the tribunal under section 95 of the Act.

From QCAT Act

95 Evidence

(1) The tribunal must allow a party to a proceeding a reasonable

opportunity to—

(a) call or give evidence; and

(b) examine, cross-examine and re-examine witnesses; and

(c) make submissions to the tribunal.

(2) Despite subsection (1)—

(a) the tribunal may refuse to allow a party to a proceeding

to call evidence on a matter if the tribunal considers

there is already sufficient evidence about the matter

before the tribunal; and

(b) the tribunal may refuse to allow a party to a proceeding

to cross-examine a witness about a matter if the tribunal

considers—

(i) there is sufficient evidence about the matter before

the tribunal; and

(ii) the evidence has been sufficiently tested by

cross-examination; and

(c) for an expedited hearing under section 94,

cross-examination or re-examination of witnesses is at

the discretion of the tribunal, subject to the rules.

(3) Also, the tribunal may place time limits on the giving of

evidence and on the examination, cross-examination and

re-examination of witnesses.

(4) Evidence in a hearing—

(a) may be given orally or in writing; and

(b) if the tribunal requires, must be given on oath or by

affidavit.

(5) A member or adjudicator may administer or cause to be

administered an oath for the purpose of taking evidence at a

hearing.

(6) A child can not be compelled to take an oath.

                   

New South Wales smoke alarms - coronial inquest

13th July 2018

The NSW Coroner have released their findings and made recommendations (below) into the tragic death of Miata Jibba in a rental property. I strongly recommend reviewing the inquest report which you can review here.

The most likely outcome will be amendments to smoke alarm legislation in the near future. I have an escape plan document to give to tenants at Member online in folder 03 smoke alarms. I will be creating best practice documents for members in the coming weeks in light of the inquest recommendations for immediate best practice change.

The above information was emailed to NSW FREE mailing list - join our mailing by emailing your name, email and location (such as Dubbo) to This email address is being protected from spambots. You need JavaScript enabled to view it.

Review the inquest and findings here

 

Agencies fined for unlawful entry to rental property - Queensland

Training event QLD August to September 2018

Two recent prosecutions by the Residential Tenancies Authority (RTA) included breaches of 'rules of entry' to rental property. Section 192 to 199 cover rules of entry under the RTRA Act. These requirements are called rules of entry as per section 200. Upcoming property management training throughout Queensland (from August to September 2018 - one session each location) will include this topic as part of the training and education event Click here for more information regarding the training events

Upcoming property management training

What property managers need to know about the RTRA Act regarding special terms. The session will include information on educating lessor clients regarding the Act and carpet cleaning, pools, pest control and more. Best practice completed tenancy agreement/contract will be provided and discussed plus how to bind the tenant lawfully in accordance with the RTRA Act. We shall also discuss 'rules of entry' legislation.

Real Estate Agency fined $10000 and criminal conviction

Real Estate Agency fined $8500 and convicted

 

QCAT and property management

Update 4th June 2018 

Queensland Real Estate Excellence members,
 
I have been researching and have found some possible good news for now in relation to QCAT and names on applications.
 
I have updated the ‘fact sheet’ QCAT compensation order (new page 5) with a version 2 and have found a useful appeal decision which may be useful if needed regarding orders made in the agency name.
 
I am always conscious of sending too many emails to you, so for now have decided to post this, which you can find at member login (shown below) in folder 00 latest member update, plus in QCAT folder 30 as shown below as well.
 
I have emailed the above to members I am aware of concerns etc on this matter.
 
 
Stacey Holt
 
Join the private FB members group at link below (member offices only)
 

 

Update 1 June 2018

The Principal Registrar of QCAT has phoned me to discuss the concerns today, which was appreciated. The Principal Registrar is going to review the matter and we will discuss again within the next fortnight. For now members and industry are advised to continue putting the Lessor name/s on applications and consider wording of agency name representing the Lessor name, or Lessor name represented by agency name. I will advise member offices via email of future updates regarding this matter. Stacey Holt.

 

QCAT commenced in Queensland December 1 2009. Over the years there have been many situations throughout the state regarding names of applicants and inconsistencies in relation to completion of documentation. Below tries to explain possible reasons for this. If your agency is concerned about QCAT requiring the agency name to be on the application instead of lessor name care of the agency,  (or will not accept an application to join a landlord to a proceeding if the tenant has named the agency as respondent instead of the landlord), please voice your concern by contacting QCAT at their email address  here. - Attention the email to Principal Registrar. Suggestion is to name the registry (courthouse) where there are concerns, and if known, any names of sitting members who have given direction. I have written to QCAT and followed up with no response as at today 31 May 2018.

The following QCAT Appeal cases demonstrate why agencies should not have their name solely as part of the application or be named as a party solely. The tenancy legal contract is between the lessor and tenant; the agent represents the lessor via the Property Occupations Act. The cases have been made available to member offices as part of membership services and can be sourced from www.qcat.qld.gov.au

Important information was emailed to Real Estate Excellence member offices on 21st May regarding this matter Member update. A fact sheet for member offices if they are named in a compensation claim order is also now available. As per information supplied to members in detail, section 206 (3) RTRA Act allows agents to stand in the lessor place at tribunal. This provision is being cited by some sitting members as to their reasoning for not allowing lessor name on the applications and only the agency. Stand generally means represent, not be the applicant. A solicitor represents (stands) in place of their client as representative but are not the party before the court so to speak as a generalised analogy.

Noosa Hot Properties.com Pty Ltd v Olopai [2012] QCATA 201

Peter McManus Real Estate v Czuchwicki [2016] QCATA 173

 Corcoran v Simon [2016] QCATA 109

Below is a brief overview of QCAT and is sourced from chapter 30 (part of chapter 30.1) of the Property Management Excellence QLD PME manual

QCAT (Queensland Civil and Administrative Tribunal) is the jurisdiction that hears tenancy disputes (and many other civil matters). If a tenancy dispute cannot be resolved via dispute resolution through the RTA or self-resolution attempts within the agency are unsuccessful, a tenancy dispute can be taken to Tribunal for a legal resolution.

There are two types of Tribunal applications; urgent and non-urgent. These two types of applications are legally defined under the RTRA Act in sections 415 and 416.

QCAT is a civil jurisdiction as opposed to criminal. QCAT works under the premise of ‘balance of probabilities as opposed to beyond a reasonable doubt which is criminal’. The QCAT Act, regulations and rules allow tribunal members discretion in relation to how they run their ‘court room’ and procedures. Whilst there are legislative requirements, the sitting member has discretion to request their own procedures for their ruling based on balance of probabilities.

For example; some sitting members make it a requirement that there must be affidavits and affidavits of service or they will not hear the matter. It is best practice which is referenced in this chapter, that affidavits and affidavits of service should always be completed prior to making applications to tribunal.

Sitting members do not have to look at all the evidence presented; if they believe the evidence provided is sufficient, they can make a ruling on the matter. If a sitting member make an error at law and or natural justice has not occurred, an appeal can be made. Appeals are discussed further in this chapter.

Adjudicators (lawyers) or magistrates hear tenancy applications and disputes in the Tribunal. When making decisions, adjudicators and lawyers must give reasons for their decision. Some areas of Queensland have Justices of the Peace (JP’s) that can hear matters up to $5000.

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