VCAT

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The director of a former estate agency in Melbourne’s Boronia has been declared ineligible to hold an estate agent’s licence, or be an estate agent’s representative for five years, after he admitted to knowingly authorising and permitting the agency to convert trust money to its own use.
Michael Knight, 49, was found guilty by the Victorian Civil and Administrative Tribunal of breaching the Estate Agents (Professional Conduct) Regulations 2008 on several counts, such as not acting with care and diligence in his role as an estate agent.
His company, Michael Knight Real Estate Pty Ltd, was also found to have violated the Estate Agents Act 1980 by:
depositing trust money directly into the agency’s business account for its own use thrice
causing a deficiency in the trust account by withdrawing trust money prior to property settlement a further three times
not completing a number of monthly trust account reconciliations, or completing them incorrectly
failing to have the agency’s trust account audited for the 2013-2014 financial year.
The tribunal reprimanded Knight and declared him ineligible to hold a real estate agent’s licence, or to be an agent’s representative for five years.
Knight also gave an undertaking to the tribunal that he would never apply for, or seek to hold another estate agent’s licence. He must also inform any estate agent that employs him in future about the ruling against him.
Michael Knight Real Estate Pty Ltd was also reprimanded and declared ineligible to hold a real estate agent’s licence for five years.
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Victoria court rules against Boronia estate agent 

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A warning has been issued by the Magistrates’ Court of Victoria about scam emails advising about court and tribunal appearances and proceedings.
The email may advise you to report to court on a specific day/time and to bring documents and witnesses.
The email instructs the recipient to open and read an attached ‘court notice’. They’re warning that this contains a virus and that you should not open the attachment and that you should delete the email.
“If you are not involved in a proceeding, a court or tribunal will not communicate with you by email. Unsolicited emails or requests for personal information are not sent by courts or tribunals,” VCAT is advising.
 
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Been called to Tribunal recently? It may be a scam

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A Tarneit home owner was awarded $289,589 after a faulty slab left his home cheaper to replace than to fix.
In a decision handed down by the Victorian Civil and Administrative Tribunal (VCAT), Australia’s self-proclaimed “largest new home builders” Metricon were found to have knowingly proceeded with the construction of Graham Hooper’s house despite receiving complaints that the home’s slab was built on poorly compacted soil. Metricon was ordered to pay for the demolition and reconstruction of the house and the loss of rental income, totalling $289,589.65. 
In 2006, as the home was being constructed, Hooper and surveyors found that the slab was built to an incorrect height. Rather than restarting construction, Metricon agreed to deduct $7,500 from the house price and import soil after completion to level the external landscape.
Within two months of moving into the house in October 2007, Hooper noticed cracks which became more severe in the following year, and his front bedroom window became jammed and Hooper was unable to open it. He complained to the builders, who refitted some windows and replastered some walls.
The tribunal heard that after moving interstate for work in 2009, Hooper received complaints from tenants about further cracking and the front door jamming. Metricon adjusted the front door once and Hooper told the tribunal that he paid for a carpenter to repair the home several times. Meanwhile the problems continued to increase, with windows jamming shut and more cracks appearing.
At one point, after several complaints from Hooper, Metricon inspected the house’s drainage system for plumbing leaks but none were found. Metricon then wrote to Hooper, telling him that the problems were due to “edge heave”, which it claimed was not its fault, but due to Hooper’s own landscaping and to “excessive garden watering.”
In 2011, Hooper decided to bring in an independent building and engineering expert, who concluded that the slab had skewed, the soil underneath was improperly compacted and the house would continue to move. The expert also concluded that it would be cheaper to demolish the house and rebuild it rather than repair it.
According to tribunal senior member R. Walker, Metricon was aware from 2006 that the soil was highly reactive and that it was imperative that the house was built as per the engineer’s plans. Not only was the foundational slab built incorrectly, but Metricon carried on with construction rather than addressing the initial problem, resulting in, as Walker put it, “a problem of its own making”.
Claims against the house’s engineer were dismissed in VCAT, as although the tribunal found that the engineer had at points breached its duty of care to Hooper, those breaches hadn’t resulted in any actual damage. 
 
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Metricon ordered to pay home owner almost $300,000 for faulty build

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Heading to tribunal, or VCAT in Victoria, can unsurprisingly fill tenants, property managers and landlords with dread.

VCAT deputy president, head of review and regulation Heather Lambrick said that the best way, truly, to win at VCAT is not to come in the first place.

"Every case that comes before VCAT has a losing party. Everybody comes in the door thinking that they're going to win the case, that they're going to walk out victorious [and] that they're going to be really happy with the outcome ... Sadly, that's not the case," said Lambrick at a recent Taking it to VCAT information session at the William Cooper Justice Centre.

In fact, settlements are the best way to sort out an issue. Talk to the other side, don't keep secrets and try to resolve the issues prior to taking it to tribunal. Hear are <a href="/expert-insights/buying/28371-four-investor-tips-to-keep-you-out-of-tribunal" target="_blank">four tips for keeping you out of tribunal in the first place</a>.

[smartcode_project:default project_id=27638]

If, however, you do end up at tribunal, then she notes there's one thing that lets people down: a lack of preparation.

You might not need legal representation, in fact she notes that many have represented themselves and have won at tribunal, however you must prepare adequately. If the concept of some of the preparation explains below fills you with dread, then it might be time to seek some preliminary assistance.

While some are well-placed to handle their own case, due to their intimate knowledge with it, of course some can't see the woods for the trees. Best to identify which camp you are in early.

"If you haven't prepared your case don't expect to win," she explained.

"You may not be a lawyer, but you're expected to prepare. They can only judge based on what is presented."

So how do you effectively prepare for VCAT?

Here are some fundamental tips.

Understand what it is that you are going to VCAT for.

Answer to yourself the following questions:

<ul>
<li>Why am I coming? 
	 </li>
	<li>Why am I making the application in the first place? 
	 </li>
	<li>What am I hoping to achieve?</li>
</ul>
If you don't really know what it is your hoping to achieve "you're not going to be able to persuade me that I should give you what you're hoping to achieve," she explains.

You need to have the idea clear in your mind and then prepare to get from A, where you are now, to B, what you want to achieve.

[smartcode_project:default project_id=24432]

<hr class="system-pagebreak">
Know the relevant law

Lambrick notes that while some believe the tribunal members "make it up as they go along", the truth is that VCAT is a creature of statute. Meaning, for every action they take there is a piece of legislation behind it.

You aren't expected to be a lawyer, or "know every case in the history of the universe". However, you are certainly expected to know the legislation that covers you dispute and, preferably, which section of the legislation specifically.

If there isn't a piece of legislation to cover your dispute, then it's not an issue VCAT can assist with.

Isolate the issues

The majority of parties, surprisingly, agree on the majority of things about the case. For instance, the nature of the relationship, when a lease began, and similar details are often not in dispute.

Find out what it is you're really arguing.

"Don't spend a lot of time preparing what everyone agrees on - that's just background information," she explains.

Get the documents to prove your issues

You now have the issues on hand, about which you believe you are correct. The next step is proving it, perhaps with tools, photogrpahs, documents or a person who needs to give evidence. Decide which documents you need, and start to collect them.

Anticipate the other side of the argument

You've now decided on what your issues are and how you will prove your case.

However, she warns, "Cases aren't won on their strengths, they're lost on their weaknesses". Be aware of these weaknesses by preparing for the counter argument.

One way to get this done is to write yourself some lists.

Grab a piece of paper and put a line down the middle. She then recommends putting the 'pros' for your case and the 'cons' on the other side.

On the other piece of paper, you need to write down the evidence you have on your side. Consider the evidence they might also have, and see how it stacks up.

Everything you're planning to say at tribunal needs to be prepared for.

[smartcode_project:default project_id=93128]

Ensure you have everything with you

Bring your documents, and all your information in order.

Don't forget a pen and paper - it sounds silly, but it's crucial to bring these with you for noting down important points as they arise.

As this isn't an American TV show court, she laughs, there isn't the opportunity to say 'objection' at every turn. If the counter argument brings up a point you disagree with - write it down and wait your turn.

Ask for help if you need it

"If you're self-represented, we're here to help. We want the best possible case from each side," she explains.

If you don't know when you're supposed to talk, don't hesitate to ask and clarify.

Watch other cases

Sit in on a couple of tribunal cases - you'll find that it may help steady your nerves, she said, noting that it's not uncommon for first timers to be nervous coming to tribunal.

You'll quick learn some of the common customs.

For instance, she notes that the vast majority of hearings are held in rooms that are not as formal as you might expect. However, when the tribunal member comes into the room, the common courtesy is for everyone to stand.

The usual way to address the tribunal member is also "Sir" or "Madam".

You will also learn some lessons for future reference. Here's a<a href="/news/28191-landlords-must-be-aware-of-the-qimpliedq-tenancy-agreement-lessons-from-tribunal" target="_blank"> lesson from a previous Tribunal case</a>.

Stay calm and be polite

Throughout the process you may be encouraged to negotiate with the other side, and if you've been rude due to being nervous then you may limit your chances of a more favourable outcome.

For more tips on winning at VCAT, you can <a href="/news/vic/26317-tips-for-winning-at-vcat" target="_blank">read a property management perspective here</a>.
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How to win your case at tribunal: VCAT deputy president

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A young Victorian man has been declared ineligible to hold a licence or act as an agent’s representative for seven years after stealing $14,753 in rent and bond money.
James-Paul Moularas, 23, stole the money from the tenants of five properties in <a href="https://www.urban.com.au/property-observer" target="_parent">Travancore</a>, <a href="https://www.urban.com.au/property-observer" target="_blank">Brunswick</a>, <a href="https://www.urban.com.au/property-observer" target="_blank">Brunswick East</a>, <a href="https://www.urban.com.au/property-observer" target="_blank">St Kilda East</a> and <a href="https://www.urban.com.au/property-observer" target="_blank">Preston</a>.
Victoria Civil and Administrative Tribunal senior member Robert Davis found that between 11 October and 15 November 2012, Moularas had fraudulently failed to account for, deliver or pay money had received or held as an agent’s representative. He also failed to promptly pay all money he had received in his role to his employer or its specified trust account. The tribunal heard that Moularas had not acted fairly or honestly in relation to his duties as an agent.
Davis said there was “no doubt in his mind” that Moularas’ conduct would be considered unprofessional.
In November 2012, Moularas confessed that he stole the money to his employer, Secure Invest Property Group Pty Ltd, owned by his uncle. His uncle and parents repaid the money that he stole for his own use.
Moularas, who is originally from Adelaide, will be ineligible to hold a licence until 30 April 2021. Davis considered banning Moularas permanently but decided that a seven year ban was appropriate given that this was his first known offence. Moularas did not appear at his tribunal hearing.
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Real estate agent representative who stole nearly $15,000 from tenants banned for seven years

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Thwarted plans to demolish a 19th century North Melbourne hotel to make way for a four-storey 30 serviced apartment block have been appealed to the Victorian Civil and Administrative Tribunal.
The initial City of Melbourne decision to refuse the $10 million application to demolish on heritage grounds was being appealed by the developer, Yuan Shuo Liang.
Objections to the Royal Park Hotel demolition have come from neighbours, ABC journalists Virginia Trioli and Russell Skelton.
Skelton, the head of the ABC’s fact checking unit, was present at the Victorian Civil and Administrative Tribunal hearing, the Australian Financial Review wrote.
<a href="https://www.realcommercial.com.au/property-retail-vic-north+melbourne-5806395" target="_blank">The hotel was bought for $1.95 million in early 2012</a> from the Milesi family.
The 1930s renovated hotel opened in the 1850s gold rush as the Lightning Hotel before becoming the Royal Park. 
The decision on <a href="https://urbanmelbourne.info/projects/melbourne/399-405-queensberry-street-north-melbourne" target="_blank">the </a><a href="https://urbanmelbourne.info/projects/melbourne/399-405-queensberry-street-north-melbourne" target="_blank">KHAK Architects-design</a> will be handed down in about six weeks.
“The notion of the corner pub is a little bit like churches – they’re a receding land use,” VCAT senior member Russell Byard said during the appeal hearing on Tuesday, the AFR noted.
“The (planning) problem is to find a contemporary use for a building originally built as a corner pub – or a church, for that matter. . . they are often turned into flats, or restaurants or things of that nature.”
The proposal drew 10 objections.
Russell Skelton has lived in the neighbourhood since the mid-1990s, then adding the neighbouring 132 square metre vacant property in late 2012 with a $610,000 purchase with Virginia Trioli.
It was also bought from the Milesi family.
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ABC journalists Virginia Trioli and Russell Skelton opposing North Melbourne hotel demolition

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VCAT has been asked to clarify whether a landlord or tenant should pay the costs of complying with the Essential Safety Measures in commercial premises.
The below matters have been referred to VCAT for clarity:
<ul>
<li>The responsibilities of a landlord or tenant under a commercial lease concerning compliance with essential safety measures requirements under the Building Act 1993 and Building Regulations 2006;</li>
<li>Who should pay for the costs of essential safety measures compliance under the Building Act 1993; and</li>
<li>Who should pay for the costs of repairs and maintenance obligations under the Retail Leases Act 2003.</li>
</ul>
The clarification has been sought by the Victorian Small Business Commissioner Geoffrey Martin Browne.
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VCAT asked for commercial property safety measures clarification

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Kuwaiti sheikh Mubarak Abdullah Al-Mubarak Al-Sabah won a recent Victorian Civil and Administrative Tribunal (VCAT) hearing that granted permission to remove covenants on his Port Melbourne development site.
The sheikh owns developer Action Group Australia, which owns 1-5 Waterfront Place.
The company wants apartments possibly up to 10 storeys adjacent to the Station Pier entrance.
The covenants on the land's title were restricting the development.
The Kuwaiti billionaire bought the site for $21 million in 2007 through the Australian arm of the sheikh’s company that also operates hotels in Melbourne and Brisbane.
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Kuwaiti sheikh wins latest round in Port Melbourne planning dispute

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Consumer Affairs Victoria has ordered that estate agent Scott Hoare may not hold a licence or act as an agent’s representative until October 2024.
Scott Hoare, 40, of Tanjil South, was previously the sole director of SLGH, which traded as Stockdale &amp; Leggo Trafalgar in regional Victoria.
The trust account deficiency was confirmed in early April 2014, after SLGH's trust account auditor advised Consumer Affairs Victoria of irregularities occurring outside the annual audit period beteween July and September 2013.
The Victorian Civil and Administrative Tribunal (VCAT) found that Scott Hoare fraudulently withdrew $37,490 from the trust account.
He also failed to transfer $5,090 of rent into the account after the group’s internal structures brought the matter to the attention of the authorities.
“Scott was expelled from the Stockdale &amp; Leggo group on 19 March 2014 as soon as these issues became apparent, and it was through our due diligence that the authorities were able to act so quickly,” Stockdale &amp; Leggo <a href="https://www.rebonline.com.au/breaking-news/9349-pressured-real-estate-boss-banned-for-fraud" target="_blank">advised the REB industry website</a>.
According to VCAT, the trust account fraud involved “10 instances of early sales commissions drawn, cash deposits not banked and unconfirmed disbursements” between July 2013 and September 2013, instead for personal purposes including evidence that he had made withdrawals at a casino.
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Stockdale & Leggo Trafalgar estate agent banned over trust account fraud

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Joel Phillip Murray, an estate agent, was reprimanded and had his licence suspended for three months and conditions attached to it, after failing to have his trust accounts audited. 
The Victorian Civil and Administrative Tribunal found that Mr Murray, 41, of Berwick, contravened the Estate Agents Act 1980 and the Estate Agents (Professional Conduct) Regulations 2008.
Mr Murray failed to cause his trust account to be audited within three months of the end of the 2010-2014 financial years, and to lodge copies with the Director of Consumer Affairs Victoria, as required by the Act.
The tribunal found that Mr Murray contravened the Regulations by failing to exercise due skill, care and diligence in performing his functions as an estate agent, and by engaging in unprofessional conduct.
He was reprimanded and had his licence suspended for three months from 20 October 2015 until 19 January 2016.
His licence was also made subject to a condition that, on or before 19 October in each of 2015, 2016 and 2017, Mr Murray must notify the Director in writing whether or not he has complied with his trust account audit and lodging requirements for the previous financial year.
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