T6 - Misrep/Misleading/Decep/Negligence Flashcards
What are the four main elements for a misrepresentation claim under CCLA 2017 - S35 or S37
While I won’t detail the difference between a S35 [Damages] or a S37 [Cancellation] claim, the four main elements for misrepresentation claim under the CCLA 2017 are:
1) A false statement of past or present fact
2) Made by, or on behalf of, a party to the contract
3) Made to a party to the contract
4) Made with the intention to induce that party into the contract
With each of the four elements for misrepresentation, analyze the implications and considerations one should make
1) False Statement: Negotiations will need to remedy in corrections while occuring // medium: can be both a conduct or oral or written // future statements: likely to be held expectations UNLESS: 1) could not have reasonably held OR indeed didn’t hold (need to be able to prove) OR presented as to have a factual basis in present
STATEMENT: silence will typically not qualify as a statement for a misrepresentaiton claim - likely will need to be claimed under S9 FTA if applicable (2 elements of in trade and misleading/deceptive) With ex ception of half truths
2) By party to or on behalf of: Agency implications: can make you liable for misrepresentation (not negligence) even though it is not your action
3) Made to party to: Can be a person or a party as long as they are to the contract
4) Intention to induce: Innocent misrep can be. Also needs to simply be material, not decisive
What relief can you seek for misrepresentation under the CCLA 2017 for misrepresentation?
Under S35 you can seek damages on the basis of cost for cure or difference in value (at court discretion)
Under S37 you can seek contract cancellation IF it is an essential term that has been affected
Can you contract out of misrepresentation liability?
While the Hedley Berne case would indicate so, this is a contentious issue and one that the court will look to assess on the basis as to whether it was fair and reasonable and other facotrs such as the elgal knowledge of each party under S50,.
What are the three license types created under the REAA 2008? What are the abilities created under each act and who can hold them?
1) Agent: Both person AND company can hold
- Able to carry out real estate agency work indepedently
2) Branch Manager: Only person can hold
- Can carry out real estate agency work on behalf of an agency by itself
3) Salesperson: // Only person can hold
- Must be supervised while carrying out real estate agency work by an agent or branch manager
What is real estate agency work?
As defined by section 2, it is any work for the purpose of bringing abouta transaction in estates of land or eztates in leasehold land.
What are three matters that agents need to consider in disclosure for property transactions?
1) Sensitive issues
2) Title or building defects or land defects
3)
What are the two main sections that a court can find a real estate agent liable under the REAA 2008?
S72 - Unsatisfactory Conduct - Reasonable member of public would fall short of the reasonably expected standard
S73 - Misconduct - Reasonable member would find disgraceful - high burden
What is the significance of S14 of The REAA 08 (Co….)
It empowers the Code of Conduct Rules 2012
Explain the complaints process against an agent
1) Either opt to use an agency’s internal procedure or apply directly to the REAA via lodging a complaint form
2) The REAA will accept the form and the decide to either provide compliance advice to the agent, refer to mediation, or refer to the Complaints.Authority.Commission
3) If C.A.C they will assess the claim via 3 memebers, one of which is an REAA Board member, the other a lawyer with at least 7 years - they will assess and refer to the Minst. of Justice Dis. Tribunal if so
4) IF DIS TRIBUNAL –> can award either $15K if person, otherwise $30K company, up to $100K compensation. They can also cancel, suspend a license OR terminate employement
What section in the CCLA relates to the ability to contract out of misreprentations?
S50 - which limits the powers of disclosure/disclaimers exposing
What do s35 & s37 relate to in the CCLA?
Both sections relate to misrepresetnation, where s35 is a claim for damages, and a s37 allows for cancellation if misrpe of essentail term
What is the significance of Part 2, Subpart 1 of the CCLA?
Allows for a beneficiary of the contract to enforce the contract, even if they are not a party to the contract, provided that the following two elements are met:
1) There is a promise made within the contract that confers a benefit on the party
2) There is sufficient designation made of the party within the contract
What is the significance of Part 2, Subpart 2 of the CCLA?
Relates to Mistakes, defines the three types of them [Unilateral, common, mutual]
What are the 3 elements for a mistake to be claimed?
1) A mistake has been made [as defined by either three types]
2) Inequality of value exchanged as a result [value or consideration to benefit based]
3) No clause exists within the contract bearing full assumptuon of the risk
What would be some examples of instances where something would not be a mistake?
1) Ignorance/carelessness
2) Expectations based
3) Interpretation based
What are the powers of the Discplinary Tribunal when a claim is brought for them to assess by the Claims Assessment Committee
- Cancel, suspend license
- Employment termination
- Award damages of $15K for person / $30K for company
- Award compensation up to $100K
Is there a time-period cap to Fair Trading Act 1986 claims?
Yes - typically a period of 3 years from the date of damage
What are the two elements for a claim under the COnsumer Fair Trading Act 1986?
1) Conduct that was misleading or deceptive
2) By a party in trade [transactions in a business context]
Explain the concept of Vicarious Liability and where it might apply in a RE context?
The concept of vicarious liability is one that may expose extended liability to one party for anothers actions where the fore-mentioned party has a responsibility for the actions of the party. Such an example exists with a real estate agent salesperson licensee and an agency.
What remedies can be sought under FTA 1986?
1) Damages - which is the most common. You will need to prove loss as a result - words will not likely qualify
2) Injunciton
3) The court also has many other powers under the FTA to withdraw products, stop trade for an intrade oerson
What is the main decidi in a s12a claim under the FTA 1986?
S12a, which relates specifically to unsubstantiated claims. Is a statue which is decided on having evidential grounds to making a claim.
What do S5c and s5D relate to in the FTA 1986?
5c - allowing for a in-trade person to ammend the FTA 1986 regs where they are forfeiting a right or imposing a higher standard of care on themselves
5d - contracting out - for both parties being intrade and where the conditions in 5d are satisfied and contracitn g out is fair and reasonable
What are the main duties of an agent?
- To act in good faith and honestly -
- ## To abide by usual fiduicary obligastions [conflict of interest, client interest]
What are the two main authority types?
1) Actual Authority - Express or implied [by necessity for roles]
2) Ostensible Authority [apparent] - by principal’s representations –> 2 elements [doctrine of holding out], which are:
- Has a representaiton been made?
0 What it made by the principal?
- Ommission, can count [Pascoe Properties v Attorney-General]
What are the two main types of agency agreements and what are the imposed regs, if any?
1) General - non-exclusive right to market and sell the property
2) Sole - exclusive right to market and sell the property
Governed by S130 and 131 of REAA 2008
- Cooling off period [s130] - 5pm NWD after gifting of copy of agreement
- 90+ day period fixed term - after 90, any aprty can cancel
What does an agent need to do before signing an agency agreement with a client?
- Provide an approved gudie on the sale of a property to the client and get SIGNED acknowledgement of this
- Set out any expenses of the property
- Set out any marketing costs vendor-payable
- Set out an estimate of the sale price based on comparable market evidence, that is, realistic
- Set out an estimate of commission payable and the conditions of your commissionko
Does a real estate agent have free reign over what clauses they can put in an Agency Agreement?
Nope - they can only draft terms to protect the agent’s interests
What does s126 of the REAA 2008 dispose on agents in relation to their commission?
That w/o an agency agreement, they are not entilted to commission
What are the elements for a claim of negligence and where might this not be possible?
The elements of negligence are:
1) A legal duty of care is owed to the plaintiff
2) The respondant acted in a way to breach that duty of care
3) There was sufferred lose as a result
EXTRA CONSIDERATIONS:
- Standard of care
- Negligent mistatement - court will be more aprehensive due to words travelling etc
There will not be a claim if a s35 CCLA 2017 applies, as negligent mistatement is also a misrepresentaiton.
What is the neighbour principle established in case law most famously?
Donoghue v Stevenson
What are some tests for the 3rd element of negligence claims in tort? (SL)
- Novis actus interveins
- But for test
