1. After considering the details of the Authorities in issue, the sales campaigns, evidence from CAV officers and some vendors, evidence from Mr Johnson and the parties' submissions, under section 25(1)(a) and (b) of the EA Act, I have determined that Mr Johnson:
   • (a) Contravened or failed to comply with the EA Act 35 times over the period 29 November 2014 to 3 February 2016; and
   • (b) Is not a fit and proper person to hold an estate agent's licence.
2. Also under section 25(1)(a) and (b) of the EA Act, I have determined that Property Express:
   • (a) Contravened or failed to comply with the EA Act 65 times over the period 12 August 2014 to 3 February 2016 (including Mr Johnson's contraventions or failures to comply); and
   • (b) Is not a fit and proper person to hold an estate agent's licence.
3. The next step in the proceeding is for the parties to make submissions about orders under section 28A of the EA Act which will be considered at a further hearing.

1. The alleged contraventions and instances of non-compliance arose from the provisions of the EA Act then in force. In these reasons, the references to EA Act provisions are to those in force at the relevant points in time.
2. The provisions in issue in this proceeding are offence provisions.[2] I accept CAV's contention that, when considering whether a contravention of a provision of that kind has been proven, it is necessary for me to be satisfied as to findings in the manner discussed in Australian Securities Commission v Nomura International PLC[3] and Briginshaw v Briginshaw.[4] Accordingly, when dealing with an offence provision, I have made findings of fact only when actually persuaded the events or actions relied upon occurred, mindful of the seriousness of the allegations and the gravity of the consequences flowing to Mr Johnson and Property Express - that is, I have made findings when reasonably satisfied they are open on the evidence and taking into account the statutory context of the allegations made.

1. The parties in this proceeding filed a statement of agreed facts (agreed statement) which detailed the roles and status of the respondents and Mr Dean and details of all 58 properties in issue (attached to these reasons and marked 'A'). The agreed statement contained relevant details of the content of the authorities signed for the sale of each property, the advertising history and the sale prices obtained. I have proceeded on the basis of the content of that document where relevant to the allegations before me.
2. CAV tendered and relied on six affidavits made by CAV investigators.[5] The respondents did not require any of the inspectors to attend for cross- examination and agreed to the contents of the affidavits being accepted in their entirety. Likewise, no objection was taken to the content of an affidavit made by an employee of CoreLogic as to RP Data Professional analysis.[6]
3. CAV also tendered and relied on affidavits made by four property vendors.[7] Again, the respondents did not require any of those witnesses to attend for cross-examination and so I have accepted the contents of the affidavits in their entirety.
4. Finally, CAV tendered and relied on an affidavit made by the vendor of the property at 15/745 Barkley Street, West Footscray, Mr Terry Clark.[8] Mr Clark was the only witness the respondents required to be available for cross-examination. At the hearing, I was informed Mr Clark had said he was unwell and unable to attend in person or by telephone (as he lives interstate). Given Mr Johnson and Property Express disputed some of the evidence in his affidavit and would not be able to put those matters to him, CAV decided it would not press all the allegations against Mr Johnson arising from the sale of that property. However, as discussed later in these reasons, CAV still sought findings on all allegations it made against Property Express arising from the sale.
5. Mr Johnson gave evidence and was cross-examined.
6. In these reasons, I deal first with the inquiry into Mr Johnson's conduct and then that of Property Express.
7. It is convenient to record now that, from time to time in these reasons, I refer to property addresses. References to properties by number correspond to the numbering in the agreed statement.

Overview of alleged contraventions and non-compliance - Mr Johnson

1. In its amended application for an inquiry dated 19 August 2017, CAV alleged that Mr Johnson contravened or failed to comply with four provisions of the EA Act.[9]
2. Following the sequence of the EA Act, first, CAV alleged that Mr Johnson published advertisements for two properties which contained misleading statements or representations contrary to section 42(4) of the EA Act. In closing submissions, CAV's counsel said those matters were not pressed against Mr Johnson and so I have not considered them further.
3. Second, CAV alleged that on three occasions Mr Johnson failed to comply with the EA Act section 47A(1) requirements relating to the inclusion of estimates of the selling price in the Authorities. Two of those alleged contraventions were admitted by Mr Johnson.
4. Third, CAV alleged that, in breach of section 47C(2), when marketing eight properties, Mr Johnson stated his estimate of the selling price to be less than the lower limit of the range contained in the Authority.
5. Fourth, CAV alleged that on six occasions Mr Johnson failed to comply with the EA Act section 49A(1)(c)(ii) requirement that the Authority contain details of the commission payable expressed as a percentage and as 'a dollar amount that would be payable on the reserve price or any other relevant amount' in that document.
6. At the hearing, CAV raised a new allegation which came directly from Mr Johnson's own evidence. Mr Johnson's solicitor did not object to that being considered by me as part of the inquiry under section 25(1) of the EA Act and so I have proceeded to do so.[10] The allegation was that, contrary to section 47A(2)(b), Mr Johnson included in an Authority an estimate of the selling price of a property which was that of the vendor rather than his own estimate based on his experience, skills and knowledge.
7. Based on the specified allegations, CAV submitted that I should determine Mr Johnson had contravened or failed to comply with the relevant sections of the EA Act and that Mr Johnson was not a fit and proper person to hold an estate agent's licence.[11]

Section 47A(1) , section 47A(2)(a) and section 47(3) of the EA Act - selling price estimates

1. At the relevant time, section 47A(1) of the EA Act said that, before obtaining a person's signature to an engagement or appointment to sell real estate, an estate agent must ensure that the engagement or appointment states the agent's estimate of the selling price of the real estate and that the estimate complies with the section. Subsection (a) says the estimate may be a single amount or a price range.
2. Relevantly, section 47A(2)(a) said the estimate referred to in section 47A(1) must be the amount the agent believes, on the basis of his or her experience, skills and knowledge, that a willing but not anxious buyer would pay for the real estate, or in the case of a price range, the range within which that amount is likely to fall.
3. Section 47A(3) said that, if an estimate is expressed as a price range, the difference between the upper and lower limits of the range must not exceed 10% of the amount of the lower limit of the range.
4. Non-compliance with the requirements of section 47A is an offence.

1. Mr Johnson signed an Authority dated 15 December 2015 for 10 Stranger Street, Yarraville (property 14). The document showed the agent's estimate to be '$650,000+'. CAV contended that figure was neither a single amount or a price range. Mr Johnson disputed the allegation that the estimate did not comply with section 47A(1) of the EA Act. He also gave evidence that, at the time, although other agents marketed properties using a '+' sign, he usually did not.
2. Mr Johnson signed an Authority dated 4 September 2015 for 57 Benbow Street, Yarraville (property 22). No estimate, either by way of a single figure or a range was included. Mr Johnson had no explanation for how that happened and thought it was an oversight. He admitted the allegation.
3. Mr Johnson signed an Authority dated 4 September 2014 for six townhouses numbered 1-6A located at 8-18 Whitehall St, Footscray (property 26). The estimate was said to be between $379,900 and $479,900 with no differentiation between the six properties. The stated range was greater than 10%. Mr Johnson admitted the allegation.

1. As to 10 Stranger Street, I agree with CAV's contention that the use of a '+' is indicative of neither a single amount or a price range. The plus sign is entirely open ended and so cannot constitute an upper figure of a range consistent with the requirement in section 47A(2)(a) of the EA Act.
2. Mr Johnson failed to comply with section 47A(1) when he did not include any estimate for 57 Benbow Street.
3. Mr Johnson contravened section 47A(3) by including one estimated range for each of the properties covered by the Whitehall St Authority as the difference between the upper and lower limits of the range exceeded 10% of the amount of the lower limit of the range.
4. By signing each of those three Authorities, Mr Johnson failed to comply with section 47A(1) of the EA Act.

Section 47A(1) and section 47A(2)(b) of the EA Act - price estimate not based on agent's experience, skills and knowledge

1. As set out above, at the relevant time section 47A(2)(b) of the EA Act said the estimate in section 47A(1) must be the amount the agent believes, on the basis of his or her experience, skills and knowledge, that a willing but not anxious buyer would pay for the real estate, or in the case of a price range, the range within which that amount is likely to fall.
2. I mentioned the property at Stanger Street above noting that the estimate given was '$650,000+'. During the course of his evidence, Mr Johnson said this about how that figure was included:

Well I made a mistake. The owner was adamant he wanted that figure in there and I succumbed and allowed that figure to be put in.

1. He explained that, against his usual practice (of not putting a plus in his estimates like other agents did at the time), Mr Johnson did so because the vendor insisted, threatening to go to another agent. Mr Johnson said he told the vendor another Authority would need to be written up once they were closer to selling but that was not done. Mr Johnson stated he thought the property was only worth $580,000 to $630,000.
2. The evidence demonstrates that the estimate was not based on Mr Johnson's belief as to its value, based on his experience, skills and knowledge - rather, he simply acted on the direction of the vendor. That amounts to a further clear failure to comply with section 47A(1) of the EA Act and I so find.

Section 47C(2) of the EA Act - marketing outside selling price estimate

(1) This section applies to an estate agent who holds a written engagement or appointment to sell real estate . . .

(2) In making any statement while marketing the real estate, the agent . . . must not state as his or her estimate of the selling price of the real estate a price that is less than the estimated selling price, or in the case of a price range, less than the lower limit of that range, stated in the written engagement or appointment.

(3) For the purposes of this section, a statement is made while marketing real estate if -

(a) it is made in an advertisement in respect of the property that is published, or caused to be published, by the agent;

1. CAV's counsel, Mr Nekvapil, contended that the estimate referred to in section 47C(2) ought to be read as being the same estimate as contained in the relevant Authority which had been entered into in compliance with section 47A(1)(a) of the EA Act. As a result, the prohibition was on including an estimate in any published advertisement (print or online) which included a figure less than the specified single amount or the lower end of the range.
2. Mr Leggatt, Mr Johnson's solicitor, contended that the relevant estimate would also include any estimate provided to the vendor later in time, whether orally or in writing, including an email. On that basis, he submitted that, provided the advertised estimate was consistent with the revision, there was no breach of section 47C(2).
3. Mr Leggatt's submission flowed from Mr Johnson's evidence that, in the relevant cases, after completing the Authority, he reconsidered the price range, sometimes on the advice of other agents from his office and sometimes as a result of feedback from attendees at open from inspections. Mr Johnson also gave evidence that, from time to time, vendors expressed concerns about the range being advertised and so he adjusted it in accordance with their instructions. Mr Johnson also gave evidence that his usual practice when the estimate changed was to complete and have signed a new Authority or to have hand amendments initialled or to confirm the change by email.
4. I agree with CAV's submissions that the requirement in section 47C(2) must be read in the light of the preceding subsection and so the estimate which forms the basis of the advertising is that contained in the signed Authority. That is entirely consistent with the obligation in section 47A to provide an estimate in writing. As discussed above, the mechanism for compliance with that obligation is a completed Authority signed by the agent and vendor. Section 47C works to ensure that prospective purchasers are given accurate information about the expected sale price of the property before they invest time and resources in considering a purchase.
5. Accordingly, section 47C(2) prohibits an agent from publishing or causing to be published an advertisement which contains a price or price range with the lowest figure being lower than that in the Authority.

1. CAV alleged Mr Johnson contravened section 47C(2) on eight occasions - at the end of the hearing, CAV's counsel said that the allegation in respect of one property were not pressed.[12]
2. As indicated by the agreed statement, there was no dispute between the parties as to the estimated ranges contained in the relevant Authorities or the ranges included in advertising material from time to time.
3. Leaving aside for the moment one advertisement which was said to have been the result of an error or 'glitch', the parties agreed that properties numbered 2, 8, 9, 10, 12, 14 and 15 in the agreed statement were all advertised at least once with a price range which included a lower figure which was less than that contained in the Authority.
4. The one allegedly erroneous entry related to a property at 4/44 Geelong Road, Footscray (property 8).
5. The parties agreed:
   • The estimated range on the Authority was $255,000 to $275,000;
   • Between 8 and 14 December 2015 and 16 and 24 December 2015, the advertised price was between $240,000 and $260,000;
   • On 15 December 2015 and between 17 and 24 December 2015, the advertised price was between $220,000 and $240,000; and
   • The property sold for $244,000 on 4 January 2016.
6. In cross-examination, Mr Johnson said, as a result of a glitch, for one day only, the property was advertised at the higher range of $240,000 to $260,000 and the intended lower figure was $220,000. He agreed in cross-examination that, whether the lower figure in the range was $220,000 or $240,000, it was below the lower estimated figure.
7. Mr Johnson contended that he was not responsible for advertising for the property located at 7/276 Williamstown Rd, Yarraville (property 10) because a different agent was the primary representative of Property Express and was responsible for giving instructions as to advertising. The parties agreed that the estimated price range for 7/276 Williamstown Rd was $730,000 to $800,000 and that it was advertised at between $690,000 and $730,000.
8. While he accepted his name was included in advertisements for the property, he was a contact person for the property and gave evidence that he stepped in for the other agent when she was away, Mr Johnson said that did not amount to him making a statement as to the sale process such that he could be said to have breached section 47C(2).
9. CAV contended that given Mr Johnson's name appeared on advertisements for the property, a finding should be made that he made a statement while marketing the real estate. It drew my attention to section 47C(3) which says a statement is made while marketing real estate if it is made in an advertisement in respect of the property that is published, or caused to be published, by the agent.

1. I am satisfied that the content of the agreed statement is sufficient evidence on which to rely to find that Mr Johnson contravened section 47C(2) in relation to properties 2, 8, 9, 12, 14 and 15.
2. In the case of 4/44 Geelong Road (property 8), it is apparent that at all times, whether in error or not, the property was advertised for less than the lower end of the estimated range contained in the Authority. Accordingly, section 47C(2) was contravened.
3. I am not satisfied the alleged breach has been proven in relation to the property at 7/276 Williamstown Rd (property 10).
4. I accept that, by being named as agent for the property, Mr Johnson may be inferred to be making a statement about, amongst other things, its price. However, there was no evidence that Mr Johnson published or caused the relevant advertisements to be published. Unlike section 42(6) of the EA Act, section 47C(2) did not state that specifying the name of an agent in an advertisement is prima facie evidence that they published or authorised the advertisement or statement.
5. Further, there was no evidence Mr Johnson told any prospective purchaser about the price range verbally, in an email or otherwise. Unlike the other properties in issue where Mr Johnson signed as selling agent, it may be inferred from the Authority for the property that the signing agent was the lead agent with primary carriage of the sale and marketing. In these circumstances, I am not reasonably satisfied, on the available evidence, that Mr Johnson made a statement of the kind referred to in section 47C(2) in relation to property 10.

Section 49A(1)(c)(ii) of the EA Act - commission in percentage and dollar figure

1. Relevantly, section 49A(1)(c) of the EA Act said:

An estate agent must not obtain, or seek to obtain, any payment from a person in respect of work done by, or on behalf of, the agent or in respect of any outgoings incurred by the agent unless -

(i) details of the commission and outgoings that have been agreed; and

(ii) if a fee is to be calculated on a percentage basis, a statement of that fee expressed as both a percentage and as the dollar amount that would be payable on the reserve price or any other relevant amount set out in the engagement or appointment

1. Consistent with my earlier findings, the engagement or appointment referred to is the Authority.
2. Contravention of section 49A is an offence under the EA Act.

1. Mr Nekvapil contended for CAV that the second reading speech indicated the above provision was introduced to provide protection for vendors in circumstances where the EA Act was amended to deregulate estate agents' commission.[13] He further contended that the following propositions applied:

1. The purpose of the provision is to inform and empower potential clients to recognise an imbalance of bargaining power between estate agents and their prospective clients;[14]

• The provision recognises that where one Authority has been signed as required by section 49(1) of the EA Act, but is no longer sufficient for compliance with the provision, a new Authority should be signed;[15]

1. The EA Act places prime importance on disclosure. While contravention may lead to harsh results, that is a consequence of the legislation: section 49A is strict and operates in an 'absolute and unforgiving way';[16]

• The identity, sophistication and capability of vendors to look out for themselves do not lessen the statutory disclosure obligation imposed on agents;[17] and
  • The provision makes it clear that its purpose is to ensure that the matters contained in the Authority can be considered and be the subject of negotiation before the Authority is signed.[18]

2. Mr Leggatt, solicitor for Mr Johnson, referred me to the Court of Appeal's decision in CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd. [19]
3. That case concerned a multi-lot residential development for which a number of Authorities were completed. The form used was the standard one created by the Real Estate Institute of Victoria (REIV). The form was found to have deficiencies that meant information regarding rebates was not included and in some, the agent did not meet the section 49A(1) requirement to include a dollar figure for the commission.
4. Mr Leggatt contended that the fact the peak industry body's own form was not compliant indicated that the legislation was complex and difficult. That was a matter he said ought to be taken into account.
5. He also drew my attention to the Court of Appeal's comments to the effect that the failure to include a dollar figure was 'minor' and that the calculation would have been very straightforward for a developer who was said to, no doubt, be familiar with the calculation of costs and commission. The Court of Appeal confirmed there had been a contravention but that, in the case before them, the impact of the infringement would be minimal.[20]
6. Although Mr Johnson gave evidence that his usual practice was to insert a dollar amount based on the highest end of the estimate in the Authority, Mr Leggatt submitted that did not mean it was required. He also contended that, given the ready availability of technology to undertake calculations and the understanding that the vast majority of property owners have mortgages and can calculate interest paid, the calculation required of a vendor to obtain a dollar figure could readily be made by them.
7. Mr Johnson had given evidence that in most cases no reserve was included in the Authorities because none was sought until the property was closer to auction or sale when the vendor had a better sense of the market. On that basis, Mr Leggatt submitted that the dollar figure could not be calculated based on the reserve and there was no 'other relevant amount' within the terms of section 49A(1)(c)(ii) to use.
8. I accept CAV's submission that section 49A(1)(c)(ii) contains a clear and strict requirement - both a percentage and a dollar figure must be included. I accept that the requirement is designed to ensure that, before entering into the contract, vendors have a clear understanding of the effect of the proposed commission payable to the estate agent on sale. While noting the comment by the Court of Appeal in CA & CA Ballan Pty Ltd that the failure to include the dollar figures were 'minor', it confirmed there had nevertheless been a contravention. Accordingly, I reject the submission that inclusion of a dollar figure is not required.
9. I also accept CAV's submission that the application of section 49A(1)(c)(ii) does not depend on the sophistication of the vendor. That submission relies on a statement to the same effect in the Court of Appeal's decision in CA & CA Ballan Pty Ltd. As noted above, in its reasons, the Court of Appeal made comments about the developer's likely capacity to calculate the commission dollar figure itself were made as part of its consideration of whether the relevant documents should be rectified. That application had been made because the developer was seeking an order that those commissions that had been paid to the agent be refunded. The question before me is not whether the Authorities ought to be rectified but whether there was compliance with the strict requirements of the EA Act. Accordingly, that part of the Court of Appeal's reasons does not assist me.
10. I find the phrase 'other relevant amount' refers to another amount in the Authority which can be used to indicate a likely commission dollar figure. The Property Express standard form Authorities completed by hand by Mr Johnson and other agents are instructive in this regard. The forms contain the following options as to the disclosure of commission:

OR % of the sale price inc. GST of 10% = Total $

Example: If sold at $ the commission is $ inc. GST $ = Total $

1. In the case of property 10 at 7/276 Williamstown Rd, the other Property Express agent completed the example part of the form using a figure close to the top end of the range.
2. That document plus Mr Johnson's own evidence as to his usual practice fit appropriately with the words of section 49A(1)(c)(ii) - in the absence of an agreed figure or a fixed reserve, a dollar figure is to be inserted based on the estimate price range which has been included in compliance with section 47A(1) of the EA Act.

1. CAV alleged Mr Johnson contravened section 49A(1)(c)(ii) of the EA Act on 25 occasions - namely in respect of properties 8, 9, 12, 13, 22, 26, 30, 32 & 33,[21] 34, 36, 37, 38, 39, 41, 44, 45, 46, 47, 49, 50, 52, 53, 54, 55 and 57.
2. The agreed statement contains the details of those alleged contraventions. Relevantly, Mr Johnson agreed that the 25 Authorities did not contain a dollar figure for the commission.
3. In addition to the evidence summarised above, Mr Johnson explained that, at the time he was with a vendor signing the Authority, he was very aware of the commission because it had often been the subject of negotiations. As to why the dollar figure was not included in the identified Authorities in accordance with what he said was his usual practice, he said it may have been an oversight or a time restriction. He also explained that, when he was in someone's house, it was often very busy with questions back and forth with many stops and starts and that sometimes it was all over the place. He asked rhetorically if that was making excuses. He added that more than half of the vendors have some sort of spreadsheet or a calculator, they jot down the commission and that 'there's nothing sinister about it'. He added that he was hoping everyone was working it out.

1. I am satisfied that, applying the proper interpretation of the requirement in section 49A(1)(c)(ii) of the EA Act, Mr Johnson contravened that requirement in respect of the Authorities for the properties listed above as the commission was not expressed as both a percentage and a dollar figure.

Determination under section 25(1)(a) of the EA Act

(1) At any time the Director or the Chief Commissioner of Police may apply to the Tribunal for the holding of an inquiry to determine whether an estate agent -

(a) has contravened or failed to comply with this Act or the regulations;

1. Given the findings set out above, I determine under section 25(1)(a) of the EA Act that Mr Johnson contravened or failed to comply with the EA Act 35 times over the period 29 November 2014 to 3 February 2016.

Determination under section 25(1)(b) of the EA Act

At any time the Director or the Chief Commissioner of Police may apply to the Tribunal for the holding of an inquiry to determine whether an estate agent -

(b) is of good character or is otherwise a fit and proper person to hold a licence;

1. CAV did not contend Mr Johnson is not of good character and so I put that aspect of section 25(1)(b) to one side.

The meaning of fit and proper person and the nature of the inquiry

1. There was no dispute that the phrase 'fit and proper person' while undefined has been the subject of much judicial comment in a range of circumstances which are of assistance in cases such as this. The phrase does not carry defined criteria but allows for a wide range of matters to be considered. It includes, not only whether a person has the necessary honesty, knowledge and ability, but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit him to be accredited to the public as a person to be trusted.[22]
2. On the question of knowledge and ability to undertake the work of a licensed estate agent, the regulations are of assistance. Regulation 6 says that an estate agent must have a working knowledge of the EA Act and any other laws relevant to the functions performed by estate agents. Regulation 10 says an estate agent must act in accordance with the lawful instructions of a principal unless where to do so would be contrary to good conduct as an estate agent. Regulation 12 requires an estate agent to act in a principal's best interest except where it would be unlawful, unreasonable, improper or contrary to the principal's instructions to do so.
3. In closing submissions, Mr Johnson's solicitor raised the following:
   • The inquiry was said to be unusual on the basis that it was more common for the Tribunal to inquire into whether or not a professional person has breached their obligations under the relevant licensing legislation;
   • This inquiry as to whether or not Mr Johnson is a fit and proper person was described as 'unorthodox and, with respect to the CAV, misguided'. Such inquiries were said to usually relate to applications by a person to become licensed, usually after a period of cancellation, or movement of a practitioner between jurisdictions, when the relevant disciplinary board had concerns about the honesty or capacity of the practitioner to practice;
   • Unlike those cases, there was said to be no allegation of dishonesty against Mr Johnson and no allegation that he lacked capacity to act as an estate agent. It was submitted that no such allegation was put to him in cross examination;
   • It was submitted that CAV ought to have abandoned this aspect of the inquiry.
4. As stated earlier, CAV did not allege Mr Johnson was not of good character or that he was dishonest and so those matters require no comment.
5. While it is correct that the fit and proper person test may be relevant to the grant of an estate agent's licence,[23] it is apparent from the terms of section 25 of the EA Act that it is open to the Tribunal to inquire into whether Mr Johnson is a fit and proper person in the context of allegations made by CAV. The amended application for an inquiry made it plain that CAV alleged Mr Johnson was not fit and proper and that it sought a determination under section 25(1)(b).[24] In those circumstances, there was no obligation on it to put that specific question to Mr Johnson in cross examination - Mr Johnson's response to the allegation was a matter for him.

1. In the course of addressing allegations Mr Johnson had breached his obligations under the Regulations, his solicitor submitted that any contraventions by Mr Johnson could be explained by administrative oversight for which he took full responsibility. The submissions said that, while the contents of an Authority are an important part of estate agency practice, the facts clearly showed Mr Johnson sold properties within or close to the advertised range using his 'usual energy and transparency, to meet a changing market and serve his professional duty, which is to achieve the best price possible for his vendor clients in an open and transparent manner'.
2. At the hearing, Mr Leggatt reiterated his submission that the law in the area was complex and he relied on the fact that even the REIV's standard form authority had flaws - he referred to compliance as being 'notoriously difficult' and described the EA Act as being 'problematic'. He said this was not really a conduct case or a case about his client's capacity or competence to act as an estate agent. He noted Mr Johnson's 36 years' experience. He described the alleged contraventions of the EA Act as 'paperwork issues'. He submitted that, when considering whether Mr Johnson was fit and proper, it was appropriate to look at the substance of his conduct as an estate agent over the whole of the transaction.

Mr Johnson's understanding of the estimate and commission obligations

1. CAV submitted that Mr Johnson's evidence demonstrated that he did not have an adequate working knowledge of the law. It referred to his own evidence that, when including an estimate in an Authority, he had regard to the vendor's opinion as to the figure. As discussed earlier that is what occurred when he included the figure $650,000+ in an Authority.
2. Separate from the reliance Mr Johnson placed on the vendor's instructions, he explained the decision to change the estimate often arose after a 'caravan' of other agents from Property Express came through the property and expressed views about the likely price. That usually occurred one or two weeks before the sales campaign commenced.
3. In the case of 4/44 Geelong Road, Footscray (property 8), his evidence was that the other agents went through and said the property needed work to be done - they told him he had got it wrong. At that stage, Mr Johnson said he realised he had probably been too 'bullish'. The Authority was signed on 10 September 2015, the property was advertised between 8 and 24 December 2015 and sold on 4 January 2016, suggesting work was done before the marketing campaign commenced and the tenant vacated. Despite his evidence as to his usual practice, Mr Johnson did not prepare and have signed an amended Authority with a revised estimate which took into account his revised opinion.
4. Mr Johnson was again too 'bullish' in respect of 1/34 Waiora Parade, West Footscray (property 9). Mr Johnson gave evidence that the caravan of agents thought the estimated price was too high. He said he had tried to get the price right but he had needed the opinions of others. He also explained that prospective purchasers went through the property expecting it to be a two, not one bedroom unit, and so they thought the asking price was too high. The estimated price had been $300,000 to $320,000. The lowest advertised price over the campaign was $270,000 and it sold for $285,000.
5. Mr Johnson also referred to fellow agents or prospective purchasers raising questions about properties: in one case he said the property had quite a few problems including being poorly built, being on a busy road, located next door to a 7 Eleven store and having a defective garage door that meant you could not park.[25] In another case, prospective purchasers were said to have made adverse comments because the property had a very small backyard and was not a standalone dwelling.[26]
6. As I understood his evidence, when it became apparent that his recorded estimate was too high, he would speak to the vendor and it would be agreed that the property should be advertised at a lower range. He gave further evidence in cross-examination that, when those circumstances arose, his usual practice was to have an amended or new Authority signed to reflect his revised estimate. He acknowledged that step had been overlooked in the cases before the Tribunal.
7. In cross-examination, Mr Johnson was asked to clarify how he saw the relationship between the estimate he was required to give based on his experience, skills and knowledge and the section 47C(2) obligation not to market the property outside his estimate. Mr Nekvapil proposed that, once an Authority was held, section 47C(2) of the EA Act meant he could not advertise the property outside the lower limit in the estimate he had given in the Authority. Mr Johnson said words to the effect that he presumed that, if the owner felt that was not correct, he could change that range or, he asked, could he never change that range for the whole campaign? When Mr Nekvapil again described how section 47C(2) applies, Mr Johnson said he understood that but he then asked, if the price range was wrong, did that mean the range could not be changed for the whole campaign?
8. Despite the evidence recorded above as to his usual practice of obtaining an amended or new Authority, Mr Johnson's responses consistently referred to him marketing properties at prices outside the estimate because his vendor had instructed him to do so. He was asked why he kept mentioning the vendor's instructions about the advertising range. Mr Johnson replied that CAV was trying to show he had just changed prices shown in advertisements 'willy nilly'. Mr Nekvapil clarified that the allegation was that he had not complied with section 47C(2) of the EA Act.
9. Mr Nekvapil referred to the nature of the obligation in section 47C(2) and again asked how the vendor's instructions were relevant. Mr Johnson appeared to ask whether perhaps it was relevant in that he should not have dropped the price? A little later, Mr Johnson asked Mr Nekvapil how an owner could change the advertised price if they (being the estate agents) would be in breach of section 47C(2) every day? Mr Nekvapil referred Mr Johnson back to his own evidence that he would obtain a new Authority if his genuine estimate of the price of the property changed. He suggested that would allow Mr Johnson to then advertise within that revised range consistent with the requirement in section 47C(2) of the EA Act. Mr Johnson agreed, adding that he would do so in concert with his vendor.
10. Mr Johnson was asked whether he agreed section 47C(2) was intended to protect purchasers - he did. He also agreed that he was willing to advertise properties for less than the stated estimate on instructions from the vendor.
11. At the end of his evidence, I asked Mr Johnson to describe to me his understanding of what he believed the purpose of the section 47A estimate to be. He said it was to try to give as accurate a value to the property as he could. He said he was as accurate as possible. When he had a reasonable idea of the price range he put that in the Authority. He indicated he understood the purpose of marketing with an indicative price was to give prospective purchasers a rough guide to where the price should or might end up, so as not to waste their time looking at a property worth more than they could spend.
12. Despite the above answer, taking his evidence as a whole, I agree with CAV's submission that Mr Johnson demonstrated a failure to understand the purpose of the estimate requirements contained in sections 47A and 47C. I agree that he failed to appreciate that the purpose of the section 47A obligation was to provide an estimate based on his experience, skills and knowledge to protect the vendor and ensure the vendor understood the true likely sale price rather than an inflated figure.
13. He understood section 47C was designed to offer protection to prospective purchasers so that they can place reliance on advertising material as to likely price and not waste time and money considering properties which will fall well outside their budget. However, he did not show an understanding that, when it came to marketing a price range, the legal driver was not his vendor's instructions only but the estimate he had already given to that vendor in the signed Authority. He did not appear to appreciate he was required to provide a genuine estimate to the vendor and to then market to prospective purchasers consistently with that estimate, rather than changing the indicative price range whenever the vendor indicated or agreed he should.
14. Mr Johnson repeatedly explained his conduct by referring to his vendor's instructions. As confirmed by Regulations 10 and 12, an agent is required to act consistently with a principal's instructions and in their best interests, except when that would be contrary to good practice and the law.
15. CAV submitted that I could infer Mr Johnson's practice involved the 'twin problems' to which sections 47A and 47C were directed:[27] that is, he would provide a 'bullish' estimate which would reduce the moment his colleagues or the vendors (or prospective purchasers) told him they thought it too high. He would then advertise for a lower amount, creating a gap between the estimate given to the client to get the job and the amount advertised to the market. Sections 47A and 47C were intended to ensure that vendors did not sign an Authority based on an inflated estimate and that interest in the property from prospective purchasers was not generated by a low estimate of the selling price.
16. Mr Nekvapil for CAV contended the fact the property sold within the advertised range or estimate was beside the point and demonstrated Mr Johnson's failure to appreciate the reason for the provisions.
17. I agree it would be open to me to draw the inference CAV contends for given the evidence before me. The consistent pattern in the properties before me was for Mr Johnson to give an estimate and then market at a lower range up to the auction or sale date and that is indeed the kind of conduct sections 47A and 47C were designed to stop.
18. Alternatively, I could infer that Mr Johnson simply did not have the knowledge and ability to undertake his obligations under sections 47A and 47C despite his 36 years working in the industry in the same geographical area.
19. I accept that there was sometimes a delay between the signing of the Authority and the commencement of the sales campaign for some properties: the market can change rapidly and prospective purchaser's comments are highly relevant to the likely sale price. However, even leaving those matters to one side, it seemed to me that Mr Johnson in effect conceded that his estimates were often wrong. That suggested to me that he had not applied his experience, skills and knowledge to the task or those were simply lacking.
20. As to the commission requirement in section 49A, I asked Mr Johnson to give his understanding of the requirement to include both a percentage and dollar figure. He said he presumed it was for people who could not work out the dollar figure from the percentage alone. He said some people might not understand 2% of $500,000 is $10,000. I suggested that it was to help prospective vendors understand the cost of selling. Mr Johnson said yes but that most of the people he dealt with were fairly sophisticated and that, while he was not shying away from the obligation to put it in, he said these days 'everyone is very sophisticated'.
21. Even accepting that evidence, I have difficulty understanding why Mr Johnson did not comply with the section 49A(1)(c)(ii) requirement. Separate from the clear legislative requirement, Property Express' own standard form was simple to follow and complete - even if he did not accept it was necessary for the particular vendor, all Mr Johnson was required to do to comply with the law was to properly complete the commission section which, as set out above, could be achieved in a number of ways including by way of an example.

Prior knowledge of the estimate and commission obligations

1. The materials filed by CAV disclosed that the EA Act obligations which were in issue in this proceeding had arisen in the past.
2. On 9 January 2008, Mr Johnson, in his capacity as director of Wayne Sweeney & Associates (Footscray) Pty Ltd (Sweeneys), signed an enforceable undertaking he and Sweeneys gave to CAV.[28] The undertaking recited the relevant background which included allegations that, in the period November 2006 to March 2007, three properties had been advertised outside the estimates contained in Authorities contrary to sections 47A(1) and 47C(2). The document records that Mr Johnson and Sweeneys:
   • Acknowledged that the relevant conduct contravened the EA Act; and
   • Undertook that the conduct had ceased and they would take all reasonable and necessary action to ensure there was no repetition; and
   • Undertook that they would otherwise comply with the obligations of licensed estate agents under the EA Act; and
   • Undertook to ensure that, amongst other things:
     • Sweeney would put in place and monitor a system to ensure that all sales authorities and associated advertising met the requirements of the EA Act; and
     • 'All advertising relating to the price is in accordance with the vendors (sic) selling price, or if not known, the lower limit of the range stated in the engagement authority - Section 47C(2) of the Act'; and
     • 'Provide an estimated selling price to the vendors prior to obtaining the vendors signature on the sales authority.'
3. On 5 October 2010, the Magistrates' Court made the following orders against Sweeneys and Mr Johnson personally:[29]
   1. The respondents, by their officers, employees and agents, or howsoever otherwise be hereby restrained from executing any sales authority, authorising them to sell any real property on behalf of a vendor unless that sales authority contains the first or second respondents' written estimate of the selling proce (sic) of the subject property.
   2. The respondents, by their officers, employees and agents, or howsoever otherwise, be hereby restrained from advertising the estimated selling price of any real property at a price lower than the estimated price or estimated range of prices appearing on the sales authority.
   3. The respondents, by their officers, employees and agents, or howsoever otherwise, be hereby restrained from representing in any manner whatsoever that the selling price of any real property:

(A) is less than the selling proce (sic) provided to the respondents by the vendor of the property;

(B) is less than the respondents current estimate of the likely selling price of the property or business;

(C) is less than the price or the lowest amount of any price range provided by the respondent to a vendor of the property on the sales authority;

(D) is less than the lowest amount of any price range which forms the respondents current estimate of the likely selling price of the property.

1. The respondents be restrained, by their officers, employees and agents, or howsoever otherwise, from publishing or causing to be published, issuing or causing to be issued any advertising or promotional material that contains a "price guide" where the price or lower price of any range in the price guide is less than the price authorised by the vendor in the sales authority.
2. The second respondent [Mr Johnson] be hereby restrained from

(C) being knowingly concerned in or a party to any contravention by the first respondent of any of the orders contained in paragraphs 1, 2, 3 and 4 above.

1. Those orders were made by consent.
2. In March 2011, this Tribunal made orders cancelling Mr Johnson's estate agent's licence and disqualifying him from applying for a new licence for two years. That decision was appealed to the Supreme Court of Victoria and was decided by Kyrou J in November 2011. His Honour found errors of law and ordered that the matter be remitted to the Tribunal for re-hearing.
3. The parties settled the matter in 2012. By consent, the Tribunal made orders on 20 March 2012 which included that Mr Johnson was reprimanded and his estate agent's licence was suspended for two months. Mr Johnson also consented to an order that he ensure that the files for which he was a listing agent were audited every six months for two years. That audit report was required to be provided to CAV and it was required to verify that Mr Johnson has complied with sections 47A and 47C of the EA Act.[30]
4. While it is not open to me to take account of the facts alleged in the earlier enforceable undertaking, Magistrates' Court orders and Tribunal proceedings when assessing the allegations before me, they are relevant to my assessment of whether Mr Johnson is a fit and proper person. That is because, what those past events show is, perhaps more than any other estate agent in Victoria, Mr Johnson ought to have had a complete technical and practical knowledge of the requirements of sections 47A(1) and 47C(2) of the EA Act. He ought also to have had a highly tuned awareness of his obligation to strictly comply with all of his obligations under the EA Act and the risk that, if he failed to do so, serious consequences would flow.
5. Returning to the subject matter of this proceeding, in its closing submissions, CAV noted that Mr Johnson had accepted in cross-examination that he was aware of the requirements of section 47C(2) as to marketing within the estimates in the Authority. Mr Johnson stated he agreed with that position including because he understood that was the basis of the 2011 decision in the Tribunal and the ultimate resolution of that matter in 2012.
6. After saying he agreed with that proposition, Mr Johnson said, while he did not want to blame anyone, others within the office looked after matters such as the advertising and they should have alerted him. He then agreed with the proposition that he was responsible for compliance with the EA Act.
7. CAV submitted that Mr Johnson's repeated cavalier attitude towards compliance with section 49A(1) (as to commissions) also demonstrated either an inability or lack of understanding of the law.

1. The question for determination under section 25(1)(b) is whether, having regard to the subject matter of the inquiry and the findings of fact made, Mr Johnson is a fit and proper person to hold a licence. While that assessment is being undertaken now, it is informed by the past conduct which has been the subject of the inquiry.
2. The number of breaches of the EA Act by an estate agent of 36 years' experience supports a determination that Mr Johnson is not a fit and proper person to hold a licence. As discussed above, I have rejected the proposition that the EA Act is too complex to be understood and complied with. I have formed the view that Mr Johnson had sufficient experience with CAV actions and court proceedings to know that he was required to strictly comply with the EA Act provisions in issue here and that compliance with the EA Act more generally was not optional.
3. I accept and adopt CAV's submission that it was not sufficient for Mr Johnson to ensure that, over the life of the transaction, he acted on instructions and in the interests of the vendor. The relevant requirements in the EA Act are designed to protect the integrity of the Victorian property market for all participants - compliance with those must come ahead of an individual vendor's instructions or preferences.
4. The number and nature of the contraventions lead me to conclude Mr Johnson:
   • Did not understand his legal obligations and how to comply with them in which case he is not fit to hold a licence, in the sense he did not have the required knowledge and ability; and
   • Did not treat compliance with the law as sufficiently important, in which case he is not a proper person to hold a licence, in the sense that he did not have the required moral integrity and rectitude of character to understand and ensure that at all times he complied with the law.
5. For these reasons, I determine under section 25(1)(c) of the EA Act that Mr Johnson is not a fit and proper person to hold an estate agent's licence.

Alleged contraventions and non-compliance - Property Express

1. CAV alleged Property Express:
   • (a) Published advertisements for five properties which contained misleading statements or representations contrary to section 42(4) of the EA Act;[31]
   • (b) Property Express failed to comply with the section 47A requirements as to estimates of the selling price in 13 Sales Authorities;[32]
   • (c) In breach of section 47C(2), when marketing 11 properties, Property Express stated its estimate of the selling price to be less than the lower limit of the range contained in the Authority;[33] and
   • (d) On 36 occasions Property Express failed to comply with the section 49A(1)(c)(ii) requirement that the Authority contain details of the commission payable expressed as a percentage and as 'a dollar amount that would be payable on the reserve price or any other relevant amount' in that document.
2. In addition, CAV alleged that Property Express had, contrary to section 70V of the EA Act, produced to it a document that it knew to be false or misleading in a material particular.
3. It its closing submissions, Property Express stated that it had decided not to call other employee agents to give evidence about the alleged contraventions or non-compliance or to call the vendors as that would have significantly increased the hearing time and costs. As a result, it relied on Mr Johnson's evidence where an allegation was directed to him and the company and otherwise relied on the interpretation arguments discussed above about sections 47C(2) and 49A(c)(ii) of the EA Act.

1. I apply the findings made above on questions of the proper interpretation of section 47C(2) (as to the estimate being that contained in the Authority) and sections 49A(1)(c)(ii) (as to the term 'any other relevant amount') in respect of the allegations against Property Express.
2. As a result of the agreed statement, Property Express has agreed:
   • At the relevant time, it traded as Sweeney Estate Agents (Footscray/Yarraville) carrying on the business of an estate agent under estate agent licence number 073490L which was issued on 2 December 2011; and
   • Mr Johnson and Mr Dean were the company's directors and members of its sales team at the relevant times.
3. As Mr Johnson was at all relevant times acting as an employee of Property Express, it is liable for his conduct as well as that of its other officers and employees.

Section 42(4) of the EA Act - misleading statements or representations

1. At the relevant time, section 42(4) of the EA Act, said:

Any estate agent who publishes or permits or authorizes to be published as part of any advertisement any false or misleading statement or representation concerning any property or business which is or is stated or represented to be for sale shall be guilty of an offence.

(a) production of a newspaper containing an advertisement having specified therein the name of an estate agent or of an advertisement published in any other form having specified therein the name of an estate agent shall be prima facie evidence that the estate agent published or authorized to be published the advertisement and all statements and representations made therein;

1. CAV submitted the elements of section 42(4) of the EA Act are:
   • A person was an estate agent within the meaning of the EA Act;
   • That person published or permitted or authorised to be published, a statement or representation; and
   • The statement or representation was part of an advertisement, concerned a property stated or represented to be for sale and was false or misleading.
2. As to the meaning of the term 'false or misleading', CAV contended the meaning applied to the same term in provisions of the Australian Consumer Law (ACL) could be used here. I was referred to Sundberg J's decision in ACCC v Gary Peer & Associates Pty Ltd,[34] which concerned an alleged breach of the predecessor to ACL section 30. That section prohibits a person, in trade or commerce, in connection with the sale or possible sale of an interest in land or in connection with the promotion by any means of the sale of an interest in land, from making a false or misleading representation concerning the price payable for the land.
3. In the Gary Peer case, his Honour found relevantly that, over the life of a sales campaign leading to an auction, the vendors' minimum sale price was $780,000 and then $800,000. The estate agent's own valuation for the property was $700,000. On the day of the auction, the vendors set their reserve as $800,000 but, during the course of the auction, increased it to $850,000 and then reduced it to $830,000. The advertising which was approved by the vendors during the sales campaign, included price guides such as '$600,000 Plus Buyers Should Inspect' and later the same words but the figure was changed to $650,000. At the relevant times, the agent believed the property would sell for more than $700,000.
4. His Honour found that the advertisements carried representations that

(a) The vendors would sell the property for a price that was approximately, or was not substantially more than, $600,000 (and later $650,000);

(b) The vendors were prepared to sell the property for a price that was approximately, or was not substantially more than, $600,000 (and later $650,000); and

(c) The vendors had instructed the respondent to sell the property for a price that was approximately, or was not substantially more than, $600,000 (and later &650,000)

1. Those representations were found to be false and misleading given that, at the time they were made, the estate agent had no reasonable grounds for making them, particularly once an offer for $750,000 was rejected by the vendors during the sales campaign. His Honour also found the advertisements carried a representation that the respondent in fact believed and held the opinion that the property would be sold at a price that was approximately, or was not substantially more than, $600,000 or $650,000. Given the evidence about the instructions the vendor gave and the estate agent's own view of the property's value, that representation was found to be false.
2. As discussed earlier, CAV noted that section 42(4) of the EA Act creates a summary offence and that was relevant to the state of satisfaction that should be reached before finding there was a contravention.
3. Although Property Express denied the allegations, it did not take issue with the above contentions as to the construction of section 42. In those circumstances, I accept and adopt CAV's submissions.

1. The amended application for an inquiry into Property Express alleged that it had breached section 42(4) in respect of five properties.[35] In each case, CAV alleged that the advertisements for the property advertised it for less than the reserve price set on the Authority.
2. Relying on section 42(6)(a) of the EA Act, CAV contended that, because the relevant advertisements carried Property Express' name, it was to be treated as having published or authorized all of the statements and representations contained in the advertisement. I accept that is correct.
3. The agreed statement contained details of the reserve prices for each property and the dates and contents of advertisements placed. In each of the five cases, the property was advertised with a price range which included as the lower figure an amount which was less than the reserve price or the lower limit of the estimate.
4. In the case of properties 3 and 6, I had before me affidavits made by the vendors.[36] In each case, the affidavit said:
   • They told an agent from Sweeneys the price they wanted for their property and a reserve price was included in the Authority or a price estimate was included which covered their nominated sale price;
   • The property was advertised at less than the reserve price or a price the vendor later stated they would accept; and
   • The vendor did not instruct the agent to advertise the property at a figure less than their reserve or nominated lowest price.
5. In the case of property 6, the vendor noticed the property was being advertised at $260,000 to $280,000 when he wanted a minimum of $285,000 and the price estimate range on the Authority was $260,000 to $285,000. When he queried the advertising, he stated the agent said the price had been lowered to attract potential buyers and that they could negotiate to his reserve point after that. The property did not sell at auction, apparently because 'nobody turned up'. The vendor increased his reserve to $285,500 to cover the additional advertising costs and to give some room to negotiate. The vendor was informed an offer had been made at $270,000 and he agreed to accept that sum. When the agent attended with the contract of sale, the price was $260,000. The vendor signed the contract and the property sold.
6. As noted earlier, Property Express called no evidence in respect of allegations about properties which did not also relate to allegations against Mr Johnson. There are only two properties which involved allegations under section 42(4) of the EA Act against both Mr Johnson and Property Express.
7. The first was the property at 3/30 Whitehall St, Footscray (property 1) which was owned by Mr Johnson and sold by Property Express, with Mr Dean having signed on behalf of the company. The allegation against Mr Johnson was not pressed against him, given he did not sign the Authority and he gave evidence he was not involved in the advertising. However, CAV still sought a finding against Property Express on the basis of the differences between the reserve price and the lower figure in the advertised price range.
8. Mr Johnson gave evidence that he personally estimated his property's value to be $310,000 but set the reserve as $305,000 as he wanted the property sold. The agreed statement showed the advertised price ranges were $285,000 to $305,000 and $300,000 to $325,000. The property sold for $365,000. Mr Johnson gave evidence the higher price range was included in error by an employee and once discovered, the original range of $285,000 to $305,000 was included in the advertising. When asked in evidence in chief, Mr Johnson said he was not unhappy with the advertised price range.
9. Allegations were also made against both Mr Johnson and Property Express in respect of the property at 15/745 Barkley St, West Footscray (property 13). Given that a number of factual matters were in dispute and Mr Clark was not available for cross-examination, I have disregarded the contents of his affidavit when considering the allegation under section 42(4) of the EA Act against Property Express. I have instead relied on the documents which were relied on for the agreed statement and two emails contained in CAV's materials.
10. The Authority for property 13 stated the price estimate as $250,000 to $270,000. In his evidence, Mr Johnson said that, although the Authority contained that estimate, he told Mr Clark that they could aim for that price but in his mind the property was only worth $240,000 to $260,000. He said he told Mr Clark that he needed to get real and get where the market is. Mr Johnson also gave evidence that the property was in extremely poor condition, that he arranged for a large amount of work to be done to improve it (given the vendor lived interstate) and, when agents from his office went through, they thought the estimate on the Authority was too high, even after the improvement works had been completed.
11. Prior to 8 November 2015, the property had been advertised with price ranges of $240,000 to $260,000 and $235,000 to $255,000. Between 9 November 2015 and 20 November 2015, the advertised price ranges were $240,000 to $260,000 and $235,000 to $255,000. The property sold for $265,000 on 21 November 2015.
12. The evidence showed that, on 8 November 2015, the vendor sent an email to Mr Johnson saying:

Please note that I am officially notifying you that my Unit 15/745 Barkly St Footscray West is not for sale at the price you have it advertised on your internet site at $235,000-$255,000. My reserve price is $265,000 non-negotiable.

1. The vendor sent a further email on 16 November 2015. He referred to the fact Sweeneys was representing him and to the upcoming auction date of 21 November 2015. He stated 'I am notifying you that no offers below $265,000 will be accepted or entertained on my behalf. I hope this is perfectly clear'.
2. In cross-examination, Mr Johnson gave evidence that, despite the 8 November 2015 email having been sent to his email address, he did not see it. Mr Johnson explained that, although emails were sent to and from his email address to the vendor, he did not read the emails or send them. Instead an employee checked his emails and he dictated replies from time to time. He suggested that the employee had not drawn the vendor's email to his attention or perhaps accidently deleted it from the system.
3. Mr Johnson gave evidence he saw the 16 November 2015 email. He stated that he called the vendor afterwards and warned him he would need to be negotiable. He stated Mr Clarke said he just wanted the best price.
4. Accepting that may have been said, I do not consider that by doing so Mr Clark revoked his instructions as to the reserve price or that the conversation amounted to an agreement for the property to be advertised for less than $265,000. As set out above, the property was advertised for less than that sum the day after the 16 November 2015 email was sent and Mr Johnson spoke about it to Mr Clark and continued to be so advertised until the auction.

1. On the agreed statement, I find the reserve prices or price estimates and content of the advertising were as described therein for each of the five properties.
2. Having regard to the decision in ACCC v Gary Peer & Associates, I am satisfied that those advertisements which included a listed price range conveyed representations that:
   • (a) The vendors would sell the property for a price that was approximately, or was not substantially more than, the lower price stated in the advertisement; and/or
   • (b) The vendors were prepared to sell the property for a price that was approximately, or was not substantially more than, the lower price stated in the advertisement; and
   • (c) The vendors had instructed Property Express to sell the property for a price that was approximately, or was not substantially more than, the lower price stated in the advertisement.
3. I make those findings in part on the basis that there is no material difference between a listed price expressed as a price range and advertising using the words '$600,000 Plus Buyers Should Inspect'. I find both sets of expressions indicate to potential buyers the likely lowest sale price.
4. As neither of the vendors for properties 3 or 6 were required for cross examination, I accept their evidence as contained in the affidavits to the effect they informed Property Express of the minimum price they would accept for their properties and that they did not instruct Property Express to advertise the listed price for their properties at a figure less than the reserve or minimum.
5. I find on Mr Johnson's evidence that his reserve price for property 1 was $305,000 and, on the agreed facts, that the property was advertised by Property Express below that price.
6. I am satisfied the vendor of property 13 sent Property Express (via Mr Johnson's email address) the 8 and 16 November 2015 emails as to his minimum and reserve price of $265,000. Whether or not Mr Johnson personally saw the 8 November 2015 email, I find it was sent to and received by Property Express and that, contrary to the instructions the email contained, the property was advertised for less than $265,000. I further find that after 16 November 2015, the property was again advertised for less than that sum despite the vendor's clear and explicit written instructions.
7. On that evidence, I find in respect of each of the five properties that Property Express' representations as contained in the advertisements were false and misleading as they were inconsistent with what was known by Property Express at the relevant points in time.
8. Accordingly, I find Property Express contravened section 42(4) of the EA Act in respect of advertising for properties 1, 3, 4, 6 and 13.

Section 47A(1) and section 47A(3) of the EA Act - selling price estimates

1. In the agreed statement, Property Express admitted that, contrary to section 47A of the EA Act, it failed to comply with the obligation to include price estimates in Authorities in respect of some properties.
2. Having reviewed the relevant Authorities, I am satisfied that section 47A(1) of the EA Act was contravened in the case of nine individual Authorities as no estimate was included.[37]
3. As discussed earlier, the stated estimate for 10 Stanger St, Yarraville (property 14) was $650,000+, in breach of the section 47A (2)(a) requirement that the estimate be expressed as a single amount or as a price range.
4. In the case of the properties at 1, 3, 6 and 11/165 Sunshine Rd, Footscray (properties 16 to 19), one estimate was included for all four properties, namely $220,000 to $440,000. That difference between the upper and lower limits of that range exceeded 10% of the amount of the lower limit of the range and so contravened section 47A(3) of the EA Act. Property Express admitted the contravention.
5. In the case of 4/175C Stephen St, Yarraville (property 23), a price estimate range was included but the difference between the estimated prices was more that 10% contrary to section 47A(3) of the EA Act.
6. As discussed earlier, a range of $379,900 and $479,900 was included with no differentiation between the properties of 1-6A at 8-18 Whitehall St, Footscray (property 26). That range also contravened the requirement in section 47A(3) of the EA Act.
7. Taking the earlier findings, Property Express' admissions and the evidence before me, I find Property Express contravened section 47A in respect of 13 Authorities.

Section 47C(2) of the EA Act - marketing outside selling price estimate

1. In its amended application for an inquiry, CAV alleged that, when marketing 11 properties, Property Express made a statement as to its estimate of the selling price as less than the lower limit of the range of the estimated selling price in the relevant Authority.
2. The 11 properties included those where I have found Mr Johnson contravened section 47C(2) (properties 8, 9, 12, 14 and 15) and, for the same reasons, I find Property Express also contravened section 47C(2) in relation to those five properties.
3. Having reviewed the Authorities for the other six properties and relevant parts of the agreed statement, I find that, in respect of properties 5, 7, 10, 11, 13 and 58, Property Express made a statement as to its estimate of the selling price that was less than the lower limit of the estimated range in the relevant Authority.
4. Accordingly, I find Property Express contravened section 47C(2) of the EA Act in respect to the specified 11 properties.

Section 49A(1)(c)(ii) of the EA Act - commission in percentage and dollar figure

1. In its amended application for an inquiry, CAV alleged that, in 36 Sales Authorities, Property Express failed to comply with the section 49A(1)(c)(ii) requirement that the Authority contain details of the commission payable expressed as a percentage and as 'a dollar amount that would be payable on the reserve price or any other relevant amount' in that document.
2. The 36 Authorities included those 25 where I have found Mr Johnson contravened section 49A(1)(c)(ii).[38] For the same reasons, I find Property Express also contravened section 49A(1)(c)(ii) in relation to those 25 properties.
3. Having reviewed the other 11 Authorities and relevant parts of the agreed statement, I find that, in respect of properties 3, 23, 31, 35, 40, 42, 43, 48, 51, 56 and 58, Property Express contravened the section 49A(1)(c)(ii) requirement to state in the Authority the commission as both a percentage and a dollar figure that would be payable on the reserve or any other relevant amount.
4. Accordingly, I find Property Express contravened section 49A(1)(c)(ii) of the EA Act in respect to the specified 36 Authorities.

Section 70V of the EA Act - giving CAV false or misleading information

1. At the relevant time, section 70V(b) of the EA Act said that a person must not:

produce a document to an inspector under this Division that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

1. CAV alleged that the available evidence was a basis to infer that an Authority had been altered between 24 and 31 March 2016 such that Property Express had provided false or misleading information contrary to section 70V of the EA Act.
2. CAV relied on the content of affidavits made by CAV Inspectors, Mr Matthew Sergeant,[39] and Mr Hayden Bellis.[40] The affidavits included the following:
   • Inspector Sergeant searched Property Express' premises on 9 March 2016 and seized 61 files;
   • On or about 11 March 2016, Inspector Sergeant handed the 61 files to Inspector Bellis who, soon after, took photocopies of the documents in each. Copies of the photocopies were attached to Mr Bellis' affidavit;
   • The photocopies included the Authority for 1-6A, 8-18 Whitehall St, Footscray (property 26). It included a percentage figure for commission and no dollar figure. The example section of the form had not been completed;
   • On 23 March 2016, Inspector Bellis signed a section 70C notice to produce documents and answer questions. Attached to the notice was a schedule which listed 11 properties. The first property listed was 5A, 8-18 Whitehall Street, Footscray, part of the group of properties identified as property 26;
   • On 24 March, Mr Bellis attended Property Express' premises to return the 61 files which had been seized on 9 March 2016 and then copied by CAV. Those were confirmed to have been received by a Property Express employee. Although the receipt referred to 3A, 8-18 Whitehall St, Footscray, as discussed above, only one Authority had been completed for the group of properties;
   • On 31 March 2016, following a further attendance at Property Express' premises, Mr Johnson sent an email to Inspector Bellis which said the authorities requested (apparently referring to the 23 March 2016 notice) were attached; and
   • One of those Authorities was for the Whitehall St group of properties. It was identical to the copy made from the seized files except that the example section of the form had been completed to show that, if the property sold at $100,000 the commission would be $2,200 including GST.
3. The covering email sent by Mr Johnson made no reference to the different contents in the Authority.
4. As mentioned earlier, none of the CAV Inspectors were required for cross-examination and so I have accepted the evidence contained in their affidavits entirely.
5. Mr Nekvapil, counsel for CAV, submitted that, by sending the Authority, Mr Johnson on behalf of Property Express represented its contents were correct as at the time of signing and that, at the time of signing, it complied with the requirement contained in section 49A(1) of the EA Act. CAV further contended that someone at Property Express knew the Authority had been altered and failed to advise CAV of that fact.
6. In closing submissions, Mr Leggat, solicitor for Property Express, submitted that the evidence was insufficient to draw the inference. He contended that, if there had been an intention to mislead, one would have expected the 31 March 2016 email Mr Johnson sent would have only attached compliant Authorities. In fact, a number were not. He suggested that somehow different versions of the same document had been placed on different files. He contended the evidence was not sufficient to prove such a serious allegation.

1. I accept Mr Leggatt's submission that the evidence on this matter is not sufficient to prove a contravention of section 70V of the EA Act.
2. Given the undisputed evidence of Inspectors Sergeant and Bellis, I am satisfied in the Briginshaw sense that someone within Property Express altered the Authority after it was signed by the vendor. I reject the proposition that somehow different versions innocently found their way onto the different files for the individual properties within the group. The Authority did not differentiate between the properties. If, at the time of signing, it was intended to distinguish between possible amounts of commission in order to comply with section 49A(1), one would have expected the estimate section to have been completed for each property and for the property descriptor to have been limited to each one.
3. Further, the purpose of the document was to record the agreement that was made between Property Express and the vendor on the date of signing. If it was to be changed later for one or all properties, it ought to have been initialled and dated. The document is not some form of running sheet or working document.
4. Having said that, I am not persuaded the inference CAV contends for can be drawn on the available evidence. Inferences should only be drawn where there is a foundation of objective facts. An inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.[41]
5. To find there was a breach of section 70V, I must be satisfied:
   • A person produced to a CAV Inspector
   • A document that person knew to be false or misleading in a material particular
   • Without indicating the respect in which it was false or misleading or correcting it.
6. For the reasons set out above, I am satisfied the document produced on 31 March 2016 was false and misleading and CAV was not told that and nor was the information corrected.
7. The evidence shows Mr Johnson produced the document on behalf of Property Express. There was no allegation that Mr Johnson was the person who altered the document and no allegation or evidence that he knew it had been altered when he sent it to CAV. No such allegation was put to Mr Johnson in cross-examination.
8. In the absence of evidence about the required state of knowledge of a person who was acting for Property Express when the document was produced, there are insufficient known or assumed facts to rely on to draw the conclusion sought.
9. Accordingly, the allegation of a breach of section 70V of the EA Act by Property Express has not been proven.

Determination under section 25(1)(a) of the EA Act

1. Given the findings set out above, I determine under section 25(1)(a) of the EA Act that Property Express contravened or failed to comply with the EA Act 65 times over the period 12 August 2014 to 3 February 2016.

Determination under section 25(1)(b) of the EA Act

At any time the Director or the Chief Commissioner of Police may apply to the Tribunal for the holding of an inquiry to determine whether an estate agent -

(b) is of good character or is otherwise a fit and proper person to hold a licence;

1. I discussed the meaning of fit and proper person above.
2. When assessing whether Property Express is fit and proper to hold a licence, I have considered whether the evidence demonstrates that, collectively, its employees and officers demonstrated they had the required knowledge and ability to meet Property Express' obligations under the EA Act. I noted that, separate from Mr Johnson and Mr Dean, six other agents signed Authorities for Property Express in respect of properties where contraventions or non-compliance has been proven.
3. The sheer number of instances of contraventions and non-compliance indicate they did not have that knowledge and ability. The number of repeated breaches indicate Property Express did not have a culture of knowledge and compliance with the law.
4. I have no hesitation in determining under section 25(1)(c) of the EA Act that Property Express is not fit to hold an estate agent's licence.

1. I have made orders for the parties to send to the Tribunal and each other submissions on the orders to be made under section 28A of the EA Act and then for a further hearing to be listed before me.

1. Property Express Pty Ltd is and was a company duly incorporated and registered in Victoria pursuant to the Corporations Act 2001 (Cth) trading as Sweeney Estate Agents (Footscray/Yarraville) (Sweeney).
2. Sweeney carried on business as an estate agent.
3. Sweeney held the estate agent licence number 073490L which was issued on 2 December 2011.
4. Sweeney has two business locations: at 33 Anderson Street, Yarraville and 320 Barkly Street, Footscray.

1. Mr Darren Dean (Dean) was a co-director and the secretary of Sweeney with Mr Dean Johnson.
2. Dean was the holder of estate agent licence 065299L which was issued on 1 October 1999.
3. Dean was the officer in effective control of Sweeney from 2 December 2011 and is the company's sole shareholder. Dean has resigned from his role as officer in effective control of Sweeney.
4. Dean was part of Sweeney's sale team.
5. In 2018, Mr Dean declared himself bankrupt.

1. Mr Dean Johnson (Johnson) was a co-director of Sweeney with Dean.
2. Johnson was the holder of estate agent licence 044910L which was issued on 26 July 1996.
3. Johnson was part of Sweeney's sale team.

1. On or about 13 October 2014, the vendor of the property located at 3/30 Whitehall Street, Footscray, signed an Authority (at pages 582-583 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days; and
   • (b) recording the Vendor's Reserve Price as $305,000.
2. In the following advertisements between 23 January and 18 February 2015, 3/30 Whitehall Street, Footscray was advertised as being for sale with the agency listed as "Sweeney Estate Agents - Footscray" or "Sweeney Estate Agents - Yarraville", and the agents listed as Johnson and/or Mr Wayne Rogers, as follows:
   • (a) on 23 and 31 January 2015, for a listed price of $285,000 to $305,000 (Johnson being the listed agent);
   • (b) on 4 February 2015, for a listed price of $285,000 to $305,000 (Wayne Rogers being the listed agent);
   • (c) on 8 February 2015, for a listed price of $300,000 to $325,000 (Johnson being the listed agent); and
   • (d) between 11 and 18 February 2015, for a listed price of $285,000 to $305,000 (Johnson and Wayne Rogers being the listed agents).

1. On or about 27 October 2014, the vendor of the property located at 1 Newcastle Street, Yarraville, signed an Authority (at pages 596-597 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days; and
   • (b) estimating a selling price of $640,000 to $680,000.
2. In an advertisement dated 29 November 2014, 1 Newcastle Street, Yarraville was advertised as being for sale for a listed price of $610,000 to $660,000 with the agency listed as "Sweeney Estate Agents - Yarraville" or "Sweeney Real Estate Yarraville" and the agent listed as Johnson or Ms Summer Salvato.

PROPERTY 3: 17/8-18 WHITEHALL STREET, FOOTSCRAY

1. On or about 30 November 2014, the vendors of the property located at 17/8-18 Whitehall Street, Footscray, signed an Authority (at pages 586-587 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days;
   • (b) recording the Vendor's Reserve Price as $355,000;
   • (c) providing for a commission of 1.65% of the sale price (inclusive of GST);
   • (d) not expressing the commission fee as a dollar amount; and
   • (e) not specifying an estimate of the selling price for the property.
2. In advertisements between 24 January and 11 February 2015, 17/8-18 Whitehall Street, Footscray, was advertised as being for sale as follows, and the agency listed was "Sweeney Estate Agents - Footscray", Sweeney Real Estate Footscray or Sweeney Real Estate Yarraville:
   • (a) on 24 January 2015, for a listed price of $320,000 to $350,000; and
   • (b) on 8 and 11 February 2015, for a listed price of $295,000 to $320,000.
3. The property was sold for $320,000 on 7 February 2015.
4. On or about 5 March 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $5,280 (inclusive of GST). The document is at page 646 of the court book.
5. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to this property.

1. On or about 1 October 2014, the vendors of the property located at 2 Charles Street, Seddon, signed an Authority (at page 590 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) recording the Vendor's Reserve Price as $1,000,000; and
   • (c) recording the Agent's estimate as $900,000 to $990,000.
2. In an advertisement on 21 October 2014, 2 Charles Street, Seddon, 1 Newcastle Street, Yarraville, was advertised as being for sale for a listed price of $900,000 to $990,000 with the agency listed as "Sweeney Estate Agents Footscray" and "Sweeney Real Estate Footscray" and the agent listed as Dean.

1. On or about 2 February 2015, the vendor of the property located at 3/113 Somerville Road, Yarraville, signed an Authority (at pages 591-592 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) specifying an estimate selling price of $500,000 to $550,000.
2. In an advertisement on 23 March 2015, 3/113 Somerville Road, Yarraville, was advertised as being for a listed price of between $495,000 and $540,000 sale and the agency listed was "Sweeney Estate Agents - Footscray" or "Sweeney Real Estate Footscray".

1. On or about 23 September 2014, the vendor of the property located at 2/17 Empire Street, Footscray signed an Authority (at page 581 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) recording the Vendor's Reserve Price as $289,500.
2. In advertisements between 19 October 2014 and 7 March 2015, 2/17 Empire Street, Footscray was advertised as being for sale with the agency listed as "Sweeney Estate Agents - Footscray" and the agent listed as Dean, as follows:
   • (a) on 19, 20 and 25 October 2014, for a listed price of $260,000 to $285,000;
   • (b) on 8, 12 and 29 November 2014 for a listed price of $260,000 to $285,000;
   • (c) on 13 and 27 December 2014 for a listed price of $260,000 to $285,000;
   • (d) on 10 and 24 January 2015, for a listed price of $260,000 to $275,000;
   • (e) on 8 and 21 February 2015, for a listed price of $260,000 to $275,000; and
   • (f) on 7 March 2015, for a listed price of $260,000 to $275,000.

1. On or about 2 November 2015, the vendor of the property located at 2/15 Rooney Street, Maidstone signed an Authority (at pages 572-573 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days; and
   • (b) specifying an estimate selling price of $620,000 to $650,000.
2. In advertisements between 10 November and 3 December 2015, 2/15 Rooney Street, Maidstone, was advertised as being for sale and the agency listed was "Sweeney Estate Agents - Footscray" and "Sweeney Real Estate Footscray", as follows:
   • (a) on 10 November 2015, for a listed price of $610,000 to $650,000;
   • (b) on 11, 16, 23, 25, 26 and 30 November 2015, for a listed price of $590,000 to $625,000; and
   • (c) on 2 and 3 December 2015, for a listed price of $590,000 to $625,000.

1. On or about 10 September 2015, the vendors of the property located at 4/44 Geelong Road, Footscray, signed an Authority (at pages 584-585 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) estimating a selling price of $255,000 to $275,000;
   • (d) providing for a commission of 2.2% of the sale price (inclusive of GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. In advertisements between 8 and 24 December 2015, 4/44 Geelong Road, Footscray, was advertised as being for sale as follows, with the agency listed as "Sweeney Estate Agents - Yarraville", "Sweeney Estate Agents Yarraville" or "Sweeney Real Estate Yarraville" and the agent listed as Johnson:
   • (a) on 8 and 14 December 2015, for a listed price of $240,000 to $260,000; and
   • (b) on 15, 16, 17 and 24 December 2015, for a listed price of $220,000 to $240,000.
3. The property sold for $244,000 on 4 January 2016.
4. On or about 1 February 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $5,368 (inclusive of GST). The document is at page 645 of the court book.

1. On or about 24 August 2015, the vendors of the property located at 1/34 Waiora Parade, West Footscray, signed an Authority (at page 571 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) specifying an estimate selling price of $300,000 to $320,000;
   • (d) providing for a commission of 2% of the sale price (inclusive of GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. In advertisements between 3 September and 11 October 2015, 1/34 Waiora Parade, West Footscray, was advertised as being for sale as follows, with the agency listed as 'Sweeney Estate Agents - Yarraville' or 'Sweeney Real Estate Yarraville', and the agents listed as Johnson or Mr Wayne Rogers:
   • (a) on 3 and 6 September 2015, for a listed price of $290,000 to 310,000 (Johnson being the listed agent);
   • (b) on 7 September 2015, for a listed price of $280,000 to $295,000 (Johnson being the listed agent);
   • (c) on 9 September 2015, for a listed price of $290,000 to $310,000 (Johnson and Wayne Rogers being the listed agents);
   • (d) between 13, 14, 16, 19, 20, 21, 23 and 27 September 2015, for a listed price of $280,000 to $295,000 (Johnson and Wayne Rogers being the listed agents);
   • (e) on 28 September 2015, for a listed price of $270,000 to $290,000 (Johnson being the listed agent);
   • (f) on 30 September 2015, for a listed price of $280,000 to $295,000 (Johnson and Wayne Rogers being the listed agents);
   • (g) on 4, 5 and 11 October 2015, for a listed price of $270,000 to $290,000 (Johnson being the listed agent); and
   • (h) on 7 October 2015, for a listed price of $280,000 to $295,000 (Johnson and Wayne Rogers being the listed agents).
3. The property sold for $285,000.
4. On or about 7 December 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $5,700 (inclusive of GST). The document is at page 634 of the court book.

PROPERTY 10: 7/276 WILLIAMSTOWN ROAD, YARRAVILLE

1. On or about 23 July 2015, the vendors of the property located at 7/276 Williamstown Road, Yarraville, signed an Authority (at pages 588-589 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days; and
   • (b) specifying an estimate selling price of $730,000 to $800,000.
2. In advertisements between 3 August and 13 September 2015, 7/276 Williamstown Road, Yarraville, was advertised as being for sale as follows, with the agency listed as "Sweeney Estate Agents - Yarraville" or "Sweeney Real Estate Yarraville", and the agents listed as Johnson and Ms Summer Salvato:
   • (a) on 3, 9, 10, 12, 16, 17, 19, 23, 24, 26, 30 and 31 August 2015, for a listed price of $690,000 to $730,000 (Johnson and Summer Salvato being the listed agents); and
   • (b) on 2, 3, 6, 7, 9 and 13 September 2015, for a listed price of $690,000 to $730,000 (Johnson and Summer Salvato being the listed agents).

1. On or about 12 October 2015, the vendors of the property located at 72 Empress Avenue, Kingsville, signed an Authority (at pages 579 to 580 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days; and
   • (b) specifying an estimate selling price of $700,000 to $750,000.
2. In advertisements between 4 and 22 November 2015, 72 Empress Avenue, Kingsville, was advertised as being for sale as follows, and the agency listed was "Sweeney Estate Agents - Footscray" or "Sweeney Real Estate Footscray":
   • (a) on 4, 6, 9, 11 November 2015, for a listed price of $690,000 to $740,000; and
   • (b) on 16 and 22 November 2015, for a listed price of $680,000 to $740,000.

1. On or about 3 July 2015, the vendor of the property located at 45 Sussex Street, Yarraville, signed an Authority (at pages 594-595 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price until 14 days after the auction date;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) specifying an estimate selling price of $710,000 to $760,000;
   • (d) providing for a commission of 1.4% of the sale price (inclusive of GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. In advertisements on 28, 30 and 31 August and 3, 4, 6, 7, and 9 September 2015, 45 Sussex Street, Yarraville, was advertised as being for sale for a listed price of $690,000 to $750,000 with the agency listed as "Sweeney Estate Agents - Yarraville" and the agents as Johnson and Wayne Rogers.
3. The property sold for $836,000 on 8 September 2015.
4. On or about 21 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $11,704 (inclusive of GST). The document is at page 631 of the court book.

PROPERTY 13: 15/745 BARKLY STREET, WEST FOOTSCRAY

1. On or about 28 September 2015, the vendor of the property located at 15/745 Barkly Street, West Footscray, signed an Authority (at pages 241-242 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) specifying an estimate selling price of $250,000 to $270,000;
   • (d) providing for a commission of 2.5% of the sale price (inclusive of GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. On 8 November 2015, the vendor set a reserve price of $265,000.
3. In advertisements between 20 October and 20 November 2015, 15/745 Barkly Street, West Footscray, was advertised as being for sale as follows, with the agency listed as "Sweeney Estate Agents - Yarraville" and "Sweeney Real Estate Yarraville" and the agent listed as Johnson:
   • (a) on 20, 25 and 28 October 2015, for a listed price of $240,000 to $260,000;
   • (b) on 29 and 30 October and 2, 5 and 6 November 2015, for a listed price of $235,000 to $255,000;
   • (c) on 9, 16 and 20 November 2015, for a listed price of $240,000 to $260,000; and
   • (d) on 11 and 18 November 2015, for a listed price of $235,000 to $255,000.
4. The property sold for $265,000 on 21 November 2015.
5. On or about 2 December 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $6,625 (inclusive of GST). This document is at page 240 of the court book.

1. On or about 15 December 2015, the vendor of the property located at 10 Stanger Street, Yarraville, signed an Authority (at pages 319-320 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price for a period of 120 days;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney; and
   • (c) specifying an estimate selling price of "$650,000+".
2. In advertisements between 18 December 2015 and 3 February 2016, 10 Stanger Street, Yarraville, was advertised as being for sale as follows, with the agency listed as 'Sweeney Estate Agents Yarraville' and Johnson as agent:
   • (a) on 18 December 2015 for a listed price of $580,000 to $630,000; and
   • (b) on 1, 3, 4, 11, 18, 20, 25 and 27 January and 1-3 February 2016 for a listed price of $580,000 to $630,000.

PROPERTY 15: 9/230 WILLIAMSTOWN ROAD, YARRAVILLE

1. On 4 November 2015, the vendor of the property located at 9/230 Williamstown Road, Yarraville, signed an Authority:
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) specifying an estimate selling price of $360,000 to $380,000.
2. In advertisements on 9, 10, 13, 16, 23, 25, 30 November and 4, 7 and 10 December 2015, 9/230 Williamstown Road, Yarraville, was advertised as being for sale for a listed price of $350,000 to $370,000 with the agency listed as "Sweeney Estate Agents Yarraville" and Johnson as the agent.

PROPERTIES 16-19: 3, 6 AND 11/165 SUNSHINE ROAD, WEST FOOTSCRAY

1. On or about 13 August 2015, the vendor of the properties located at Units 1, 3, 6 and 11/165 Sunshine Road, West Footscray (the Sunshine Road properties), signed an Authority (at pages 542-543 of the court book):
   • (a) appointing Sweeney to market and sell the Sunshine Road properties for the best possible prices;
   • (b) specifying an estimate selling price of the Sunshine Road properties of $220,000 to $440,000; and
   • (c) providing for a commission price of 1.65% (inclusive of GST) of the sale price for 1, 3, 6 and 11/165 Sunshine Road, West Footscray.
2. 3/165 Sunshine Road, West Footscray sold for $200,000.
3. 6/165 Sunshine Road, West Footscray, sold for $380,000 on 14 December 2015.
4. 11/165 Sunshine Road, West Footscray sold for $200,000 on 26 November 2015.
5. On or about:
   • (a) 15 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about 3/165 Sunshine Road, Footscray which stated that the commission on sale amount was $3,300 (inclusive of GST). The document is at page 611 of the court book;
   • (b) 12 January 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about 6/165 Sunshine Road, Footscray which stated that the commission on sale amount was $6,270 (inclusive of GST). The document is at page 630 of the court book; and
   • (c) 27 January 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about 11/165 Sunshine Road, Footscray which stated that the commission on sale amount was $3,300 (inclusive of GST). The document is at page 657 of the court book.
6. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to the Sunshine Road properties.

1. On or about 12 August 2015, the vendors of the properties located at 23 Kannan Boulevard, Braybook, signed an Authority (at page 495 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) not specifying an estimate of the selling price for the property.
2. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to this property.

1. On or about 11 May 2015, the vendors of the property located at 8 Gallant Street, Footscray, signed an Authority (at page 498 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying Dean as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney; and
   • (c) not specifying an estimate of the selling price for the property.

1. On or about 4 September 2015, the vendors of the property located at 57 Benbow Street, Yarraville, signed an Authority (at pages 501-502 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) not specifying an estimate of the selling price for the property;
   • (d) providing for a commission of 1.1% of the sale price (including GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. The property sold for $835,000 on 14 November 2015.
3. On or about 24 December 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $9,185 (inclusive of GST). The document is at page 636 of the court book.
4. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to this property.

1. On or about 1 June 2015, the vendors of the property located at 4/175C Stephen Street, Yarraville, signed an Authority (at pages 503-504 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying an estimate selling price of $420,000 to $470,000;
   • (c) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $470,000.
3. On or about 3 August 2015, Sweeney issued a document titled 'Tax Invoice - Account Sale' about the property which stated that the commission on sale amount was $7,050 (inclusive of GST). The document is at page 635 of the court book.
4. Sweeney admits to an offence under ss 47A of the Estate Agents Act 1980 in relation to this property.

1. On or about 1 September 2015, the vendor of the property located at 4/75 Darnley Street, Braybrook, signed an Authority (at page 528 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price;
   • (b) specifying Dean as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney; and
   • (c) not specifying an estimate of the selling price for the property.
2. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to this property.

1. On or about 20 September 2015, the vendor of the property located at 236 Gordon Street, Footscray, signed an Authority (at page 535 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) not specifying an estimate of the selling price for the property.
2. Sweeney admits to an offence under s 47A of the Estate Agents Act 1980 in relation to this property.

PROPERTIES 26: 1-6A/8-18 WHITEHALL STREET, FOOTSCRAY

1. On or about 4 September 2014, the vendor of the real estate located at 1-6A/8-18 Whitehall Street, Footscray, signed an Authority (at page 541 of the court book):
   • (a) appointing Sweeney to market and sell the real estate for the best possible price;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) estimating a selling price of $379,900 to $479,000;
   • (d) providing for a for a commission of 2.2% of the sale price (including GST); and
   • (e) not expressing the commission fee as a dollar amount.
2. 3A/8-18 Whitehall Street, Footscray, sold for $351,000 on 3 September 2015.
3. 5A/8-18 Whitehall Street, Footscray, sold for $367,500 on 26 September 2014.
4. On or about 3 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property at 3A/8-18 Whitehall Street, Footscray, which stated that the commission on the sale amount was $7,722 (inclusive of GST). The document is at page 610 of the court book.

1. On or about 18 February 2015, the vendor of the property located at 45 Kidman Street, Yarraville, signed an Authority (at pages 560-561 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) not specifying an estimate of the selling price for the property.

PROPERTY 28: 3/28 HAMPTON PARADE, WEST FOOTSCRAY

1. On or about 12 May 2015, the vendor of the property located at 3/28 Hampton Parade, West Footscray, signed an Authority (at pages 563-564 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) not specifying an estimate of the selling price for the property.

1. On or about 12 May 2015, the vendors of the property located at 3 Edmund Street, Maidstone, signed an Authority (at pages 567-568 of the court book):
   • (a) appointing Sweeney to market and sell the property for the best possible price; and
   • (b) not specifying an estimate of the selling price for the property.

1. On or about 13 August 2015, the vendor of the property located at 4 Clive Street, West Footscray, signed an Authority (at pages 487-491 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.4% (including GST) up to a $780,000 sale price and then a 15% of the differential amount thereafter; and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $780,000.
3. On or about 10 December 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $10,920 (inclusive of GST). The document is at page 605 of the court book.

1. On or about 14 October 2014, the vendor of the property located at 1208/240 Barkly Street, Footscray, signed an Authority (at pages 493-494 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. On or about 6 March 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $4,875 (inclusive of GST). The document is at page 639 of the court book.

PROPERTIES 32 AND 33: 4/54 AND 8/54 HOBBS STREET, SEDDON

1. On or about 19 June 2015, the vendor of the properties located at 4/54 and 8/54 Hobbs Street, Seddon, signed an Authority (at pages 496-497 of the court book):
   • (a) appointing Sweeney to sell the properties;
   • (b) providing for a commission of 1.925% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The properties sold for $440,000 each.
3. On or about:
   • (a) 11 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" in respect of 8/54 Hobbs Street, Seddon, which stated that the commission on sale amount was $8,470 (inclusive of GST). The document is at page 658 of the court book; and
   • (b) 1 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" in respect of 4/54 Hobbs Street, Seddon, which stated that the commission on sale amount was $8,470 (inclusive of GST). The document is at page 633 of the court book.

1. On or about 6 June 2015, the vendor of the property located at 30 Kingston Street, Yarraville, signed an Authority (at pages 499-500 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 2% of the sale price (including GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $685,000 on 8 August 2015.
3. On or about 3 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $13,700 (inclusive of GST). The document is at page 637 of the court book.

1. On or about 30 June 2015, the vendor of the property located at 209 Ballarat Road, Footscray, signed an Authority (at pages 508-509 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.35% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property sold for $857,000 on 8 August 2015.
3. On or about 31 August 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on sale amount was $11,569.50 (inclusive of GST). The document is at page 643 of the court book.

1. On or about 29 May 2015, the vendor of the property located at 6 Seddon Street, Seddon, signed an Authority (at page 510 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.25% of the sale price up to a $810,000 and then 15% thereafter (all inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $901,000.
3. On or about 20 August 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $23,775 (inclusive of GST). The document is at page 642 of the court book.

1. On or about 26 September 2015, the vendor of the property located at 4 Eirene Street, Yarraville, signed an Authority (at pages 514-515 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.4% of the sale price (including GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $875,000.
3. On or about 29 January 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $12,250 (inclusive of GST). The document is at page 640 of the court book.

1. On or about 5 October 2015, the vendor of the property located at 7/204 Ballarat Road, Footscray, signed an Authority (at pages 516-517 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.65% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $300,000.
3. On or about 3 February 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $4,950 (inclusive of GST). The document is at page 649 of the court book.

1. On or about 24 April 2015, the vendor of the property located at 14 Ovens Street, Yarraville, signed an Authority (at pages 518-519 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.5% of the sale price (plus GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $727,500.
3. On or about 11 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $12,003.75 (inclusive of GST). The document is at page 647 of the court book.

PROPERTY 40: 7/150 RUPERT STREET, WEST FOOTSCRAY

1. On or about 19 June 2015, the vendor of the property located at 7/150 Rupert Street, West Footscray, signed an Authority (at pages 520-521 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.65% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property sold for $290,000 on 29 August 2015.
3. On or about 15 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $4,785 (inclusive of GST). The document is at page 654 of the court book.

1. On or about 27 May 2015, the vendor of the property located at 26 Court Street, Yarraville, signed an Authority (at pages 522-523 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.2% of the sale price up to a $780,000 and then 15% thereafter (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $760,000 on 4 July 2015.
3. On or about 10 July 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $9,120 (inclusive of GST). The document is at page 653 of the court book.

1. On or about 21 September 2015, the vendor of the property located at 68 Tarrengower Street, Yarraville, signed an Authority (at pages 524-525 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property sold for $695,000.
3. On or about 9 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $10,425 (inclusive of GST). The document is at page 652 of the court book.

1. On or about 5 August 2015, the vendor of the property located at 72C Richelieu Street, Maidstone, signed an Authority (at pages 526-527 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.5% of the sale price up to $500,000 (including GST) and then 15% thereafter; and
   • (c) which did not express the commission fee as a dollar amount.
2. The property was sold for $520,000 on 19 September 2015.
3. On or about 15 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $7,800 (inclusive of GST). The document is at page 650 of the court book.

1. On or about 12 June 2015, the vendor of the property located at 106 Station Street, Seddon, signed an Authority (at pages 529-530 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $662,000.
3. On or about 18 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $9,930 (inclusive of GST). The document is at page 655 of the court book.

1. On or about 16 August 2014, the vendor of the property located at 12 Salisbury Road, Yarraville, signed an Authority (at pages 533-534 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.5% of the sale price (plus GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $847,500 on 1 April 2015.
3. On or about 15 May 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $13,983.75 (inclusive of GST). The document is at page 606 of the court book.

1. On or about 21 May 2015, the vendor of the property located at 55 Churchill Street, Maidstone, signed an Authority (at pages 577-578 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 2.2% of the sale price (plus GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $725,000 on 21 May 2015.
3. On or about 30 June 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $15,950 (inclusive of GST). The document is at page 609 of the court book.

1. On or about 26 June 2015, the vendor of the property located at 5 Bellairs Avenue, Seddon, signed an Authority (at pages 546-547 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $950,000.
3. On or about 25 September 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $14,250 (inclusive of GST). The document is at page 613 of the court book.

1. On or about 30 June 2015, the vendor of the property located at 4/92 Ballarat Road, Maidstone, signed an Authority (at page 548 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.65% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property sold for $600,000 on 18 August 2015.
3. On or about 26 August 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $10,917.50 (inclusive of GST). The document is at page 614 of the court book.

PROPERTY 49: 3/22 KINGSVILLE STREET, KINGSVILLE

1. On or about 1 September 2015, the vendor of the property located at 3/22 Kingsville Street, Kingsville, signed an Authority (at page 549 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.65% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $602,500.
3. On or about 30 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $9,941.25 (inclusive of GST). The document is at page 615 of the court book.

1. On or about 9 September 2015, the vendor of the property located at 6 Acton Street, Seddon, signed an Authority (at pages 550-551 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.5% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $906,000.
3. On or about 1 December 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $13,590 (inclusive of GST). The document is at page 616 of the court book.

1. On or about 22 June 2015, the vendor of the property located at 263 Ballarat Road, Footscray, signed an Authority (at pages 552-553 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.65% of the sale price (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property sold for $635,000 on 10 October 2015.
3. On or about 30 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $10,477.50 (inclusive of GST). The document is at page 617 of the court book.

1. On or about 28 September 2015, the vendor of the property located at 2/21 Schild Street, Yarraville, signed an Authority (at pages 554-555 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.1% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $999,000.
3. On or about 9 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $10,989 (inclusive of GST). The document is at page 618 of the court book.

PROPERTY 53: 3/34 KINGSVILLE STREET, KINGSVILLE

1. On or about 13 November 2015, the vendor of the property located at 3/34 Kingsville Street, Kingsville, signed an Authority (at page 556 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 2% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $550,000.
3. On or about 12 January 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $11,000 (inclusive of GST). The document is at page 619 of the court book.

PROPERTY 54: 4/10 HATFIELD COURT, WEST FOOTSCRAY

1. On or about 29 May 2015, the vendor of the property located at 4/10 Hatfield Court, West Footscray, signed an Authority (at page 557 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson and Ms Summer Salvato as the nominated Sweeney consultants who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1% of the sale price up to $400,000 and then 1.5% thereafter if a sale price of $400,000 or above was achieved; and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $331,500.
3. On or about 18 January 2016, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $3,315 (inclusive of GST) and included a handwritten notation to the effect that the amount of commission was charged at the direction of Johnson. The document is at page 620 of the court book.

1. On or about 24 September 2015, the vendor of the property located at 7/5 Govan Street, Footscray, signed an Authority (at pages 558-559 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 2% of the sale price (inclusive of GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $265,000 on 20 October 2015.
3. On or about 25 November 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $5,300 (inclusive of GST). The document is at page 621 of the court book.

1. On or about 12 September 2015, the vendor of the property located at 39 Somerville Road, Yarraville, signed an Authority (at pages 565-566 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) providing for a commission of 1.1% of the sale price up to $1,600,000 and then 10% thereafter (inclusive of GST); and
   • (c) not expressing the commission fee as a dollar amount.
2. The property was sold for $1,845,000 on 20 October 2015.
3. On or about 23 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $42,100 (inclusive of GST). The document is at page 625 of the court book.

1. On or about 13 July 2015, the vendor of the property located at 107 Blackwood Street, Yarraville, signed an Authority (at pages 569-570 of the court book):
   • (a) appointing Sweeney to sell the property;
   • (b) specifying Johnson as the nominated Sweeney consultant who signed the Authority for, and on behalf of, Sweeney;
   • (c) providing for a commission of 1.1% of the sale price up to $1,400,000 and then 10% thereafter; and
   • (d) not expressing the commission fee as a dollar amount.
2. The property sold for $1,525,000 on 12 September 2015.
3. On or about 12 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $27,900 (inclusive of GST). The document is at page 627 of the court book.

1. On or about 24 February 2015, the vendors of the property located at 108/21 Moreland Street, Footscray, signed an Authority (at page 747 of the court book):
   • (a) appointing Sweeney to market and sell that property for the best possible price:
   • (b) specifying an estimate selling price of $600,000 and $625,000;
   • (c) providing for a commission of 1.5% of the sale price (including GST); and
   • (d) not expressing the commission fee as a dollar amount.
2. In advertisements on 19, 21, 22, 26, 28 and 29 June and 1, 2, 5, 6, 8, 10, 12 and 15 July 2015, 108/21 Moreland Street, Footscray, was advertised as being for a listed price of $560,000 to $590,000 sale with the agency listed as "Sweeney Estate Agents - Footscray", "Sweeney Estate Agents Footscray" or "Sweeney Estate Agents Yarraville" and Dean and Rob Sarosi being the listed agents.
3. The property sold for $599,000 on 13 July 2015.
4. On or about 13 October 2015, Sweeney issued a document titled "Tax Invoice - Account Sale" about the property which stated that the commission on the sale amount was $8,985 (inclusive of GST). The document is at page 604 of the court book.

[1] Affidavit of Andrew Bray, solicitor for CAV, made on 11 June 2019.

[2] See section 94(1) of the EA Act which says that every person who contravenes or fails to comply with any provision of the EA Act or of the regulations shall be guilty of an offence against the EA Act.

[3] [1998] FCA 1570; (1998) 89 FCR 301, per Sackville J at page 321.

[4] [1938] HCA 34.

[5] Chris Vlahakis, Linda Grant, Matthew Sargeant, Hayen Bellis, Thomas Rushford and Belinda Davidson.

[7] Hien Nguyen, Shyam Chandrasekera, Michael Lee and Matthew Sharpe.

[9] The amended application for an inquiry also included alleged contraventions of the Estate Agents (Professional Conduct) Regulations 2008 (Vic). At the hearing, CAV informed me findings on those alleged contraventions were not pressed.

[10] In Johnson v Director of Consumer Affairs Victoria [2011] VSC 595, Kyrou J held the scope of an inquiry under s 25(1) of the EA Act is determined by the terms of the document that invokes the Tribunal's jurisdiction and the subsequent conduct of the parties. Any broadening of the initial scope of an inquiry is at all times subject to compliance with the Tribunal's obligations to act fairly and in accordance with the principles of natural justice (see paragraphs 89 to 94).

[11] Those determinations were sought under section 25(1)(a) and (b) of the EA Act. In its amended application, CAV also sought a determination under section 25(1)(c) that Mr Johnson had been guilty of conduct as an estate agent which rendered him unfit to hold a licence. At the conclusion of the hearing, CAV's counsel informed me CAV would not press for that latter determination.

[12] The property at 15/745 Barkley St, West Footscray (property 13) which was owned by Mr Clark, the witness who was unavailable to attend for cross-examination.

[13] Second reading speech given on 6 October 1994 in respect of the Estate Agents (Amendment) Bill.

1. [14] Icon Property Pty Ltd v Wood [2008] VSCA 123, at paragraph 70 quoting from TJ Board & Sons Pty Ltd v BGG Pollard Pty Ltd [2000] VSC 497 at page 4.

[15] Icon Property Pty Ltd at paragraph 71 to 73.

1. [16] Hamilton Finley Pty Ltd v Aojia Investment Pty Ltd [2017] VSC 319 at paragraph 19 to 20 quoting CA & CA Ballan Pty Ltd v Oliver Hume (Australia) Pty Ltd [2017] VSCA 11 at paragraph 93 and Kubolovski v Georges [2011] NSWSC 359 at paragraph 34.

[17] Hamilton Finley Pty Ltd at paragraph 19 quoting CA & CA Ballan Pty Ltd.

[18] Advisory Services Pty Ltd (t/a Ray White St Albans) v Augustin [2018] VSCA 95 at paragraph 44.

[19] [2017] VSCA 11.

[21] One Authority was completed for both of those properties - page 496 to 497 of CAV's materials.

[22] See Australian Broadcasting Tribunal v Bond [1990] HCA 33; Hughes and Vale Pty Ltd v State of New South Wales (No 2) [1955] HCA 28.

[24] See pages 1 and 2 of the amended application.

[25] 9/230 Williamstown Road, Yarraville (property 15) - the Authority was sign on 4 November 2015 with an estimate of $360,000 to $380,000. The advertised price range was $350,000 to $370,000 and ultimately the property sold on 4 April 2016 for $370,000.

[26] 1 Newcastle Street, Yarraville (property 2) - the Authority was signed on 27 October 2014 and the property sold on 6 December 2014, just under six weeks later.

[27] See the second reading speech for the Estate Agents and Sale of Land Act (Amendment) Bill, given on 30 April 2003.

[28] Pages 135 to 140 of CAV's materials.

[29] Pages 142 to 145 of CAV's materials.

[30] Pages 147 to 148 of CAV's materials.

[32] Properties 3, 14, 16 to 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29.

[33] Properties 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, and 58. Although an allegation of breach of section 47C(2) was brought against Mr Johnson in respect of property 2, no equivalent allegation was brought against Property Express and no addition was sought at the hearing.

[34] [2005] FCA 404.

[36] Property 3 - Shyam Chandraksekera, affirmed 23 October 2017; property 6 - Hien Nguyen, affirmed 23 October 2017.

[37] Properties 3, 20, 21, 22 (finding made against Mr Johnson), 24, 25, 27, 28 and 29.

[38] Properties 8, 9, 12, 13, 22, 26, 30, 32 & 33, 34, 36, 37, 38, 39, 41, 44, 45, 46, 47, 49, 50, 52, 53, 54, 55 and 57.

[41] Street CJ, citing Loreburn L.C. in Barnabas v Bersham Colliery Co, as set out in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at 264.