1. Under section 28A(1)(a) of the Estate Agents Act 1980 (Vic), the respondent is reprimanded.
2. Under section 28A(1)(c) of the Estate Agents Act 1980 (Vic), with effect from 4pm on 8 November 2019, the respondent's estate agent's licence is cancelled and he is disqualified from holding a licence for two years from that date.

1. Under section 28A(1)(a) of the Estate Agents Act 1980 (Vic), the respondent is reprimanded.
2. Under section 28A(1)(c) of the Estate Agents Act 1980 (Vic), with immediate effect, the respondent's estate agent's licence is cancelled and it is disqualified from holding a licence for two years.

1. On 23 July 2019, I published reasons for decision[1] in respect of applications made by the Director of Consumer Affairs Victoria (CAV) to the Tribunal for inquiries under section 25 of the Estate Agents Act 1980 (the EA Act).
2. The applications concerned:
   • Mr Dean Johnson, a director of Property Express Pty Ltd (Property Express) and a licensed estate agent; and
   • Property Express which then carried on an estate agency business under the business name Sweeney Estate Agents (Footscray/Yarraville) and which holds a corporate estate agent's licence.
3. For the detailed reasons given, under section 25(1)(a) and (b) of the EA Act, I 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) Was not a fit and proper person to hold an estate agent's licence.
4. In addition, under section 25(1)(a) and (b) of the EA Act, I 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) Was not a fit and proper person to hold an estate agent's licence.
5. The proceeding was listed for a further hearing for the parties to make submissions about orders under section 28A of the EA Act. That provision empowers the Tribunal to make a range of orders following an inquiry. Those orders may include imposing a reprimand, suspending or cancelling an estate agent's licence and/or imposing conditions on a licence. If the Tribunal cancels an estate agent's licence, it may disqualify the person from holding a licence permanently or for a specified period.
6. After hearing evidence from Mr Johnson and his current employer and considering the submissions made, I have decided to order that Mr Johnson be reprimanded, that his estate agent's licence be cancelled and that he be disqualified from holding a license for two years.
7. The parties agreed that it would be appropriate for Property Express to be reprimanded, for its estate agent's licence to be cancelled and that it be disqualified from holding a licence for two years. On the basis of the parties' agreement and satisfied those orders were appropriate, those orders have been made.
8. I first describe the applicable law and then turn to the parties' submissions.

1. The alleged contraventions and instances of non-compliance arose from the provisions of the EA Act then in force.
2. The provisions in issue were sections 42(4), 47A(1), 47A(2)(a) and (b), 47A(3), 47C(2) and 49A(1)(c)(iii). In summary, 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 is guilty of an offence;
     • I found Property Express breached the provision five times in the relevant period;
   • Section 47A(1) of the EA Act said that, before obtaining a person's signature to an engagement or appointment to sell real estate (the Authority), 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. Relevantly, section 47A(2)(a) said the estimate may be a single amount or a price range. Section 47A(b) 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. 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;
     • I found Mr Johnson contravened the provision four times in the relevant period and that Property Express contravened it 13 times in the relevant period;
   • Section 47C(2) prohibited an agent from publishing or causing to be published an advertisement which contained a price or price range with the lowest figure being lower than that in the Authority
     • I found Mr Johnson contravened the provision six times in the relevant period and Property Express contravened it 11 times in the relevant period; and
   • Section 49A(1)(c)(ii) required that, where the parties had agreed on commission calculated on a percentage basis, the Authority had to include 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 Authority;
     • I found Mr Johnson contravened the provision 25 times in the relevant period and Property Express contravened it 36 times in the relevant period.

1. Relevant here, section 28A(1) of the EA Act says:

After conducting an inquiry in respect of a person under section 25 or 28, the Tribunal, if it considers it appropriate, may, by order, do any one or more of the following -

(c) cancel any licence held by the person and disqualify the person either permanently or for a specified period from holding a licence;

(d) suspend any licence held by the person for a specified period not exceeding one year;

(e) impose any condition or limitation on any licence held by the person;

(g) require the person to enter into an undertaking to perform, or not to perform, certain tasks to be specified in the undertaking.

1. In disciplinary matters of this kind, the Tribunal's powers to make orders under the EA Act are primarily protective, even though they may have a punitive effect on the particular agent. When considering whether a person should continue to work as a licensed estate agent, there are two matters raised which focus on the public interest: the protection of the public and the necessity of maintaining standards in the conduct of the profession. A very high standard of care, compliance and honesty is required for estate agents. The Tribunal is to have regard to specific deterrence and general deterrence. Relevant to the former is the estate agent's level of insight into the conduct in issue. The orders to be made must be tailored to the relevant person, including when considering periods of disqualification. In respect of general deterrence, the Tribunal should consider the effect its orders will have on estate agents' understanding as to the requirements and the standards expected, to prevent others from engaging in similar misconduct in the future. [2]
2. A reprimand under section 28A(1)(a) of the EA Act is not a trivial determination and has the potential for serious adverse implications.[3] It tells the public and other estate agents that the standards expected have not been met and that the estate agent has been censured.

1. CAV submitted that Mr Johnson ought to be reprimanded, have his estate agent's licence cancelled and that he be disqualified from holding such a licence for a period of up to five years.
2. In support of that position, CAV referred me to the aims of the EA Act which include providing a means of ensuring those running estate agencies having proper qualifications, training and an understanding of the law and also carry out their work applying the highest possible standards.[4]
3. Noting my findings of repeated breaches of the EA Act, CAV contended that Mr Johnson's conduct presented a real risk to the public which must be guarded against. Further, given the extended period over which the breaches occurred, Mr Johnson's conduct was said to be incompatible with the maintenance of the professional standards which can reasonably be expected of a licensed estate agent and director of an estate agency business.
4. As it did at the substantive hearing, CAV again drew my attention to Mr Johnson's previous breaches of the EA Act since 2008 and the fact that he had been subject to penalties and orders previously, including by way of suspension and audits. CAV relied on comments I made in the substantive reasons to the effect that, given his past history, of all estate agents, Mr Johnson ought to have had a complete technical and practical knowledge of the requirements of the provisions in issue. I further commented he also ought 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]
5. CAV contended that the period of disqualification for Mr Johnson ought to be considerably more than the two years which had been agreed as appropriate for Property Express given his previous disciplinary history and given he was said to have subjugated his responsibilities for compliance where pressure was applied by a vendor.

1. Mr Johnson submitted that the cancellation of his estate agent's licence and disqualification from again holding such a licence for up to five years was excessive and more than what was required to protect the public and maintain professional standards. He contended that orders suspending his estate agent's licence for nine months and requiring him to undertake suitable education were sufficient to achieve the EA Act's objectives. Mr Johnson also proposed that a permanent condition be imposed on his estate agent's licence so that, when he returned to work, he could only work as an employee and not as an Officer in Effective Control of an estate agency business.
2. Mr Johnson noted that the provisions of the EA Act which were in issue before me have now changed rendering this an unusual case. The education he proposed to undertake was to ensure he had a full understanding of those new provisions and was able to ensure complete compliance. That education was an agent's representatives course which included units on identifying the legal and ethical requirements of property management and sales.
3. The nine month suspension period was intended to allow time for Mr Johnson to complete the course.
4. In the written submissions prepared for Mr Johnson, emphasis was placed on how the new provisions dealing with estimated selling prices now give estate agents greater guidance on how to undertake the task which Mr Johnson previously 'did not understand' - section 47AC of the EA Act expressly directs estate agents to formulate their estimate by having regard to three comparable sales (unless express exceptions apply).[6] Reference was made to there previously being little guidance as to how to properly apply the previous version of section 47A(2), which then and now called for the estate agent to express an opinion about the estimated selling price.
5. The submissions referred to the new provisions as being more prescriptive but also clearer and easier to comply with. The new section 47AF statement of information which requires, amongst other things, details of three comparable sales which form the basis of the estimate, was relied on as assisting with compliance. Reference was also made to the current version of section 47C which prohibits advertising outside the agent's estimated price range.
6. The submissions referred to a lack of complaints from vendors about Mr Johnson's conduct and a table was included showing that, by and large, the relevant properties sold for prices consistent with the advertised price range. It was submitted these matters placed Mr Johnson's conduct at the lower end of the spectrum such that cancellation was not warranted. The section 49A(1)(c)(ii) commission related allegations were said to be at the lowest end of the spectrum.
7. The submissions referred to media coverage of my 23 July 2019 reasons for findings and determinations. Mr Johnson contended that the consequence was that a clear message had been sent to the public regarding compliance with the EA Act. The submissions also said the fallout from the media articles had been devasting for Mr Johnson and his family, including because comments were made to one of his children to the effect his dad was a criminal. Mr Johnson's mother was said to have been harassed in like terms.
8. Mr Johnson's written submissions stated there were further consequences, including the loss of existing clients and other estate agents in the area using the publicity when competing for work. The submissions asserted the published reasons alone had already acted as a significant deterrent for Mr Johnson given its effect on his reputation.
9. Mr Johnson placed reliance on evidence from his current employer, Ms Sally Bell, director of Hodges Real Estate - Yarraville. That company purchased the assets of Property Express in around August 2018 and has employed Mr Johnson since then.
10. Ms Bell gave evidence about how her business manages compliance with the EA Act and that includes her checking each Authority on signing and each file as the property sale progresses. Her evidence showed a good understanding of the current EA Act requirements as to estimates and indicated that her office is well run and compliant. Ms Bell gave evidence to the effect that she was aware Mr Johnson had complied with all requirements since he commenced work with her.
11. Mr Johnson also gave evidence and was cross-examined. He confirmed he had been in shock following the publication of my reasons in July 2019. He said he understood he had made mistakes and now needed to get it right. He referred to his changed working circumstances which would assist him - in particular he would no longer need to deal with the day to day work of running two offices, managing staff and all the associated pressures. He stated he was happy to work as a salesperson, to learn as much as he could and never again have these problems. He acknowledged he had said that before. He also acknowledged that, in 2014, he fell into further breaches of the EA Act after a CAV 12 month audit concluded in around 2013.
12. Mr Johnson referred to the fact he had sold over 4,000 properties in his working life and there had only been a handful with issues of non-compliance.
13. Mr Johnson was asked further questions about his current understanding of the EA Act in cross-examination. His evidence was largely consistent with that given at the substantive hearing and does not require repeating here, other than to comment it was apparent that he still focussed on external matters such as how his estimate of a likely selling price could change due to market volatility and how that was a matter outside his control. He still seemed not to appreciate that the estimate and how the property could be advertised could be changed provided the change was consistent with his appropriately formulated opinion and he had an updated Authority signed.
14. It was noteworthy that Mr Johnson was open about having failed to properly manage paperwork and he agreed he had not paid careful attention to all details in the past. He acknowledged that perhaps he ought to have employed others to help with some aspects of the business. Having said that, Mr Johnson still referred to others in the office not picking up issues with Authorities.
15. Mr Johnson said he intended to now apply all his time and effort to compliance, in a way he had not in the past because of the demands of running the business.
16. Noting Mr Johnson's reference to no complaints having been made about the particular transactions, CAV stated that was moot given the findings I made.
17. As to the changes made to the EA Act, CAV contended that regardless of the current form of the legislative obligations, including as to an estate agent's estimate of a property's selling price, the protection of the public called for cancellation and disqualification.

1. Mr Johnson agreed that it was appropriate to impose a reprimand and I have done so in order to put him and others on notice that his conduct has been seriously deficient.
2. Mr Johnson's submissions link the suspension of his estate agent's licence to providing time for him to complete appropriate education. I have assumed it is also intended to recognise that, as a matter of general deterrence, a period of suspension is appropriate.
3. I am more than satisfied that, given my findings and Mr Johnson's past conduct, it is appropriate that Mr Johnson not have the privilege of working as an estate agent for a period of time. The first question is whether that be achieved by way of suspension or cancellation.
4. As to Mr Johnson's past conduct, as summarised in the earlier reasons:
   • 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. The undertaking recited the relevant background which included alleged contraventions of sections 47A(1) and 47C(2) in the period November 2006 to March 2007. The undertaking recorded, amongst other things, that Mr Johnson and Sweeneys:
     • Acknowledged that the relevant conduct contravened the EA Act;
     • 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, including by introducing new procedures as to advertising only within the estimated range;
   • On 5 October 2010, the Magistrates' Court made consent orders against Mr Johnson and Sweeneys which, amongst other things, restrained them from:
     • Executing any sales authority, unless that sales authority contained their written estimate of the selling price of the subject property, as required by section 47A(1);
     • 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 as prohibited by section 47C; and
     • Making misleading statements or representations in contravention of section 42(4); and
   • 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 successfully appealed. The parties ultimately 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 his files 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.
5. Returning to Mr Johnson's proposed orders, I agree that undertaking a course of the kind proposed would likely be of benefit to him. However, given the new EA Act provisions came into force with effect from 1 July 2017, I would have expected Mr Johnson to have a complete and up to date knowledge of their scope and operation already. As discussed in the earlier reasons,[7] and as apparently conceded by Mr Johnson in his written submissions, even as at July 2019 he did not seem to understand how to properly provide an estimate of the likely selling price of a property and properly manage changes in that estimate. It appeared to me from the evidence at the further hearing that, at least in part, Mr Johnson relies on his current employer to ensure his compliance with the current law, although he intends to take that responsibility on in full once this proceeding has been completed.
6. While some of the relevant EA Act provisions were significantly amended after 2016, others are substantively unchanged, with minor wording changes only. In particular, the substance of the section 47A requirements as to how an estimated selling price is to be expressed and the substance of the advertising prohibition in section 47C(1) have not changed. Mr Johnson has repeatedly contravened or not complied with sections 47A and 47C over the period November 2006 to February 2016. The commission related requirements in section 49A(1)(c)(ii) remain entirely the same. These are provisions Mr Johnson ought to already know and understand.
7. The pattern revealed by Mr Johnson's past conduct is that he has consistently failed to make himself aware of how to properly comply with the law as it stands from time to time or, despite knowing the law, he has failed to apply sufficient rigour to its application. That is all despite sanctions, including a two month suspension, being imposed over more than 10 years. That indicates to me that Mr Johnson suffers from more than a shortfall in current understanding but rather that he does not give sufficient weight to understanding and complying with the law at all times.
8. While I accept Mr Johnson stated he understood he is responsible for his own compliance, at the further hearing he again referred to being let down by others in his office. I remain concerned that Mr Johnson would place excessive reliance on his current employer's systems and standards to ensure compliance rather than fully engaging with his own responsibilities.
9. In all of these circumstances, whether the individual EA Act breaches were at the higher or lower end of the scale, is not particularly relevant to the question of what orders ought now to be made.
10. I am not persuaded that orders for the combined suspension, education and conditions proposed would meet the requirements of specific deterrence.
11. I have reached that conclusion after accepting the proceeding to date and the reporting of my findings has caused distress to Mr Johnson and his family. I consider it most unfortunate that cruel comments have been made to his children and mother. However, adverse media reporting alone is not a sufficient or appropriate means to achieve specific or general deterrence.
12. Aside from protecting the public from Mr Johnson's shortcomings, I am satisfied the public interest in upholding standards and deterring other estate agents from like behaviour warrants cancellation. It could not be consistent with those considerations to allow Mr Johnson to automatically re-commence working in the industry after the end of a period of suspension given his repeated failures to comply with the EA Act both personally and in his capacity as a director of Property Express.
13. In my view, Mr Johnson's repeated contraventions and disregard of the seriousness of compliance with the law means he ought to be required to positively demonstrate that he is fit and proper to be registered, whether as a fully licensed estate agent or as an agent's representative. That assessment can be made having regard to any education he undertakes in the interim and any reflections he may have on his past conduct.
14. As to the period of disqualification, I am satisfied two years is sufficient. This is not a case where there was any allegation or finding of dishonesty. I do not consider a longer period is necessary or appropriate as it would be unduly punitive. I am satisfied that, for an estate agent like Mr Johnson who has only ever worked in the industry, two years is a significant period and will send a message to others that knowledge of and compliance with the law is an absolute requirement.
15. As discussed with the parties at the hearing, the start date for the cancellation will be in two weeks to allow time for Mr Johnson to make appropriate arrangements.

1. The parties agreed that it would be appropriate for Property Express to be reprimanded, for its estate agent's licence be cancelled and for it to be disqualified from applying to be re-licensed for two years.
2. I was informed at the hearing that Property Express' business was sold to Hodges Real Estate - Yarraville in around August 2018, and so, in effect, it is no longer operating.

1. I am satisfied the orders proposed by the parties are appropriate. As discussed earlier, a reprimand is a serious matter. Given Property Express' current status, it is also appropriate that its licence be cancelled. Adopting the discussion above, I am satisfied that a two year disqualification ought to be imposed.

[1] Director of Consumer Affairs v Johnson [2019] VCAT 1063.

[2] See generally, Mario Inglese and M Inglese Pty Ltd and Estate Agents Board, Supreme Court of Victoria, 15 August 1989; Quinn v Law Institute of Victoria Limited [2007] VSCA 122; Director of Consumer Affairs Victoria v Marshall [2013] VCAT 1316; Director of Consumer Affairs Victoria v Talia [2010] VCAT 1107 Director of Consumer Affairs Victoria v Rounds [2013] VCAT 1882; Acting Director of Consumer Affairs Victoria v Moularas [2014] VCAT 474; Buzzo Holdings Pty Ltd & Anor v Loison [2007] VSC 31; Consumer Affairs Victoria v Hoare (No 2) [2015] VCAT 1077.

1. [3] Peeke v Medical Board of Victoria Unreported, Supreme Court of Victoria, 19 January 1993 at p 6 - while this case concerns a medical practitioner, given the responsibility estate agents carry in respect of funds and their responsibility to act honestly, those serious adverse implications equally apply to the estate agency industry.

[4] Referring to the Second Reading Speech in respect of the 1980 Estate Agents Bill.

[6] Paragraph 20 of the written submissions dated 6 October 2019.