1. Mr and Mrs Pasion were selling their home in Truganina, Victoria to move closer to their daughter's school. They met with at least five real estate agents before settling on the respondent, Creative, to sell their property. Despite engaging Creative, Mr and Mrs Pasion then engaged a second agent during the exclusive sales authority period they had with Creative. A buyer introduced to the property by Creative ultimately purchased the property but through the second agency. The Pasions are unhappy with the service Creative provided and seek to recover the commission and marketing expenses they feel they were forced to pay Creative.
2. In their second points of claim, Mr and Mrs Pasion seek in addition to repayment of the commission, the bank interest they would have received on the commission had they not paid it, $5000 for failed negotiations and $10,000 for loss of leverage for negotiation. No evidence at all was led by Mr and Mrs Pasion on these three additional loss claims and they did not raise them at the hearing. Accordingly, these claims must fail.

1. Mr and Mrs Pasion claim, amongst other matters, that there were 10 breaches of the Estate Agents Act 1980 (Vic) by Creative and seek orders for penalties. It was explained to the parties that penalties under the Estate Agents Act 1980 (Vic) are imposed by the Director of Consumer Affairs Victoria and not by the Tribunal. Accordingly, the claims for breach of the Estate Agents Act 1980 (Vic) were not pursued. The balance of the claims brought are based on alleged breaches of the Australian Consumer Law.
2. In order to understand the background to the alleged breaches it is useful to set out the basic chronology of events.
3. From the evidence given by both parties the basic facts of this matter are as follows: -

1. Mr and Mrs Pasion interviewed at least five real estate agents before deciding to proceed with the sale of their home through Creative. At the time Creative was trading as O'Brien Real Estate Tarneit; 2. Parminder Sidhu and Ajay Sachdeva were directors of Creative;

1. Parminder Sidhu and Ajay Sachdeva met with the Pasions at the property in early 2019 to discuss a potential marketing campaign (appraisal meeting);

1. Parminder Sidhu and Ajay Sachdeva met with the Pasions at the property on 22 February 2019 to discuss the sale and the terms of their engagement; 2. on 23 April 2019 Mr and Mrs Pasion signed an exclusive sale authority (ESA) with Creative. The ESA records the agent's details as "Creative Realty Pty Ltd t/a O'Brien Real Estate Tarneit" and ran for a period of 120 days ending 13 August 2019; 3. O'Brien Real Estate operated through a franchise arrangement, with Creative owning the Tarneit franchise although Mr and Mrs Pasion say they were not aware of this; 4. Mr Sidhu acted as lead agent for the property; 5. the property was to be sold by private sale with the campaign going live on 1 May 2019; 6. on or about 29 May 2019 Mr Sidhu informed Mr and Mrs Pasion that the O'Brien Real Estate Tarneit franchise was closing and Creative rebranding to Vivid Estate Agents; 7. Mr and Mrs Pasion were concerned about the brand change and closure. They were assured by Mr Sidhu that the sale of their property would not be affected, and the property would be sold that coming weekend (1-2 June 2019); 8. O'Brien Real Estate Tarneit closed on 31 May 2019;

1. on 2 June 2019 Creative received a signed offer on the property from Abhinesh Prasad and Kritika Chand for $820,000 subject to finance with approval by 18 June 2019 (Prasad contract);

1. Mr and Mrs Pasion accepted the Prasad contract on 5 June 2019; 2. on 18 June 2019 Mr Sidhu informed Mr and Mrs Pasion that finance was not approved, and the purchasers sought an extension of one month to arrange finance on the Prasad contract; 3. Mr and Mrs Pasion did not agree to a further extension and the Prasad Contract failed to become unconditional; 4. Yam Chuen Cheng (Jack) was an interested purchaser who attended at least two of the open houses run by Creative for the property; 5. on 20 June 2019 Mr and Mrs Pasion signed an exclusive sales authority with Reliance Estate Agent; 6. On 20 June 2019 Mr and Mrs Pasion signed a contract of sale through Reliance with Jack for the property with settlement on 20 August 2019; 7. on 12 July 2019 Creative's solicitor sent a letter of demand to Mr and Mrs Pasion claiming $20,156 for commission and outgoings threatening to lodge a caveat if the monies were not paid within 7 days; 8. on 18 July 2019 Mr and Mrs Pasion paid the commission and advertising expenses to Creative; and 9. Mr and Mrs Pasion also paid a commission to Reliance Real Estate of about $15,000 in relation to the sale to Jack.
2. Mr and Mrs Pasion set out in detail in their second points of claim the conduct of Creative they say gives rise to the various claims under the Australian Consumer Law. The conduct is: -

1. before 24 April 2019 Mr and Mrs Pasion felt a lot of indecision because it was an emotional sale. Mr Sidhu kept calling and sending texts to them regarding making a decision to sell (ground 1); 2. at the time of signing of the sale authority, Mr and Mrs Pasion felt rushed. They had not decided on their reserve price and asked for more time to decide. Creative insisted that the reserve price could be decided later and to just sign the sale authority (ground 2);

1. at the time of signing the authority Mr and Mrs Pasion were not informed that the commission and outgoings was subject to negotiation prior to signing (ground 3);

1. before signing the authority, Mr and Mrs Pasion asked about opting out options if they were not happy with the service and were told that they could opt out at any time and Creative will not claim commission (ground 4); 2. before signing the authority, Mr and Mrs Pasion enquired about the general conditions because they had a lack of understanding of the terms including the statement on Caveats/charge in special condition 18.8. They were misled that the conditions were "standard conditions" seen in all sale authority contracts. This misled them to sign without further consultation with a lawyer. They later found out clause 18.8 was not the standard REIV term and they would not have signed if they knew the implications of the term (ground 5); 3. Mr and Mrs Pasion would never have signed the sale authority if they had known Creative would change their company to Vivid. This was a change from a well-known franchise with a proper office in a shopping centre to a new start-up company trading in a house (ground 6); 4. Mr and Mrs Pasion would not have met with Creative if Creative was trading under the Vivid brand. They wanted to go with an established brand as they strongly believed that was part of the marketing front that buyers engaged with more (ground 7); 5. only eight out of the 10 pages of the signed sales authority were emailed to Mr and Mrs Pasion by Creative. Creative did not explain why the missing pages were omitted (ground 8); 6. on 29 May 2019 Mr Sidhu informed Mr and Mrs Pasion of the closing of O'Brien Tarneit. He made several verbal promises to change all marketing material to Vivid at no cost. Mr and Mrs Pasion requested that he amend the sale authority and he promised to send an amended sale authority but did not do so (ground 9); 7. further, in the meeting on 29 May 2019 Mr Sidhu assured Mr and Mrs Pasion that the closure of the O'Brien agency would not affect them in any way and that the property would be sold the coming weekend (1-2 June 2019) (ground 10); 8. between 4 and 6 June 2019 Mr Sidhu claimed he had contacted Jack and his broker and said the most Jack could offer was $800,000. This was not true (ground 11);

1. between 4 and 6 June 2019 Mr Pasion instructed Mr Sidhu to contact and send texts to everyone who visited the house during open inspections for any last-minute offers. Mr Sidhdu has not provided proof that this was done. Jack was not contacted until after the contract was signed (ground 12);

1. on 6 June 2019 Mr and Mrs Pasion reluctantly signed the Prasad contract because Mr Sidhu claimed it was the best offer so far, 4 weeks through the campaign, and that the more they waited the worse their chances of getting the best-selling price (ground 13); 2. on 12 July 2019 Mr and Mrs Pasion received a letter of demand from Creative's solicitor threatening to put a caveat on the property if they did not pay commission and outgoings (ground 14); 3. Mr Sidhu sent a deceiving text to Jack saying there was an offer for the property, to get back to him or the house will be sold that night. Mr Sidhu showed the text to Mr Pasion. The truth was there were no other offers. Mr and Mrs Pasion did not instruct Mr Sidhu to deceive buyers (ground 15); 4. on 27 June 2019 Mr and Mrs Pasion tried to resolve the issue with Mr Sidhu as they did not want to pay him a commission. They raised with him that he acted against their interest favouring the Prasad contract purchasers over Jack, changed his service, did not send them the signed Prasad contract, sent a deceiving text to Jack and blamed Reliance Real Estate (ground 16); 5. on 16 September 2019 Jack confirmed by text message that he felt ignored by Creative during the negotiations and that he did not trust them (ground 17); and 6. on 18 July 2019 Mr and Mrs Pasion paid a commission and advertising expenses to Creative (ground 18).
2. Mr and Mrs Pasion say Creative breached various provisions of the Australian Consumer Law. The grounds referred to in their points of claim (identified above) relied upon to support each of the claims are said by the Pasions to be as follows:

1. s18 misleading and deceptive conduct - grounds 2, 4, 5 and 9; 2. s30 false or misleading representations about the sale of land - ground 17;

1. s54 guarantee as to acceptable quality - grounds 12, 15, 16 and 17;

1. s60 guarantee as to due care and skill - grounds 12, 15, 16 and 17; 2. s20 and s21 unconscionable conduct - grounds 1-13 and 15-17; 3. s23 unfair terms of consumer contracts and small business contracts - ground 5; and 4. s36 wrongly accepting payment - ground 18.

1. Section 18 of the ACL provides that a person must not in trade or commerce engage in conduct that is misleading or deceptive or likely to mislead or deceive.
2. Ground 2 is clearly not misleading and deceptive conduct. It is a feeling that Mr and Mrs Pasion had. It is not a representation by Creative. Mrs Pasion contradicted herself in evidence about any pressure she might have felt. She said she felt pressured by Creative when they contacted her a number of times after their first meeting but thought this was a good sign in an agent. She said they signed the ESA because they felt they could not continue to travel the great distance to their daughter's school twice a day as there was a risk of getting into an accident "again". Mrs Pasion had previously been involved in a car accident. She also said the failure to include the reserve price in the ESA "is proof we were rushed into signing". There is nothing untoward about Creative telling them they could decide the reserve price at a later date.
3. Whether the conduct in Ground 4 occurred is in dispute. Messrs Sidhu and Sachdeva deny having told the Pasions they could opt out or elect not to pay commission. It is an extraordinary statement for an agent to make.
4. Mrs Pasion said in relation to opting out of paying commission that

1. Mr Sachdeva said "if you are unhappy we don't claim commission;". 2. They were told commission could be decided at a later date;

1. We said what if your tactics aren't working and we go get another agent to which Mr Sachdeva said "that can easily be discussed;"

1. Mr Pasion asked repeatedly if we are unhappy what happens. This was their first sale so the question was asked repeatedly.
2. Mr Pasion, early in his evidence, said he could not recall the discussions at the appraisal meeting or the meeting on 22 February 2019. He only recalled providing his driver's licence. For the 23 April meeting he said he recalls Messrs Sidhu and Sachdeva coming to the house to have the ESA formally signed and they explained performance commissions and gave some calculations on a separate sheet of paper. They also discussed the other types of commission. He did not mention any discussion about opting out if they were unhappy.
3. On day 2 of the hearing Mr Pasion asked to give further evidence. He said he and his wife were told they would not have to pay commission the moment they became unhappy. He did not say anything about having repeatedly asked the question as Mrs Pasion said in her evidence.
4. Mr Pasion went from not recalling almost anything about what was said in the meeting on the first day of the hearing to remembering a statement that goes to the very heart of his case on day 2 of the hearing. I find this suspicious.
5. Mrs Pasion produced a transcript typed by her of a telephone call she recorded with Mr Sidhu on 27 June 2019. The call was to voice her complaints. While there is reference to many grounds of complaints about Creative's services, there is no reference at all to the ground 4 conduct. One would expect Mrs Pasion to have raised ground 4 with Mr Sidhu.
6. Taking all of the above into account, I prefer the evidence of Creative over that of the Pasions. I think it more likely than not that the representation was never made.
7. The ground 5 conduct about being misled that the ESA was a standard REIV contract is in dispute. Mrs Pasion said she asked questions about general conditions clauses 18 to 21 and in particular clause 18.8 which allowed for a charge on the property. She said she asked about clause 18.8 and was told "it was a standard clause applicable to all contracts". She says the standard is the REIV proforma document. She thought because she was told it was standard that everything was all right. Had it not been the REIV standard she said she would not have signed it. She also said she did not read the ESA.
8. Mr Pasion said he was not aware of clause 18.8 until after June 2019. Clearly, he could not have relied upon any representation about this clause.
9. Creative deny saying the clause was a standard REIV clause. Mr Sachdeva said there was no discussion at all about any of the conditions by the Pasions. They did not ask about any condition in the first four pages of the ESA. The only clause they asked about was commission sharing.
10. I prefer Creative's version. I do not find Mrs Pasion's version of events to be plausible. I find it implausible that Mrs Pasion would not have proceeded if she thought the clause was not included in every REIV standard form ESA contract. I also question how she knew of s18.8 and was able to ask questions about it if she did as she claims not read the ESA before signing it. Mr Pasion was present at the meeting yet he says he only became aware of clause 18.8 in June 2019. The claim on this ground fails.
11. As to the ground 9 conduct about the change from O'Brien and amending the ESA, it is not in dispute that on 29 May 2019 Mr Sidhu informed Mr and Mrs Pasion of the closing of O'Brien Real Estate Tarneit and agreed to change all marketing material to Vivid at no cost. Mr and Mrs Pasion say they requested that he amend the ESA and he promised to send an amended sale authority but did not do so. They could not say in what way the authority was to be amended. Mr Pasion said he hoped the name change could be used as leverage to reduce the commission but he did not express this to Mr Sidhu.
12. Mrs Pasion said she expressed concerns that the ESA was no longer valid. Mr Sidhu said that it was still valid. She told him she wanted an amended authority but did not tell him in what way she wanted the authority amended.
13. The behaviour said to be misleading is that an amended authority was not provided. Without a discussion on what was to be amended it is difficult to see how an amended authority could be provided. There was also no evidence about whether the Pasions relied upon this statement and if so in what way. The Pasions have not satisfied me that there was anything misleading or deceptive about the conduct in ground 9.
14. In the circumstances the Pasions' claims based on s18 must fail.

False or misleading representations about the sale of land

1. The claim based on ground 17 makes no sense. There is nothing in that conduct that amounts to a false or misleading representation about the sale of land.

Section 54 guarantee as to acceptable quality

1. Section 54 of the ACL guarantees that goods are of acceptable quality. Creative supplied a service rather than goods. Accordingly, s 54 has no application.

Section 60 Guarantee as to due care and skill

1. Section 60 of the ACL guarantees that if a person supplies in trade or commerce services to a consumer there is a guarantee that the services will be provided with due care and skill. The ACL does not define what due care and skill means.
2. The guarantee means that suppliers must use an acceptable level of skill or technical knowledge when providing the services and take all necessary care to avoid loss or damage when providing the services.
3. The Pasions rely upon the conduct in grounds 12, 15, 16 and 17 for this claim.
4. Ground 12 is prefaced on a failure of Creative to prove it followed an instruction. The claim set out in the points of claim states that between 4 and 6 June 2019 Mr Pasion instructed Mr Sidhu to contact and send texts to everyone who visited the house during open inspections for any last-minute offers and Mr Sidhu has not provided proof that this was done and Jack was not contacted until after the contract was signed.
5. Mrs Pasion says that on 4 June 2019 she and her husband met with Mr Sidhu who presented the signed Prasad contract offer for $820,000 subject to finance. She said she instructed him to send a text to all other attendees at the open house to see if there were any last-minute offers and he said he would do that.
6. Mr Pasion says that before he signed the Prasad contract, he instructed Mr Sidhu to contact all the attendees for open house to get final offers. He agreed that those words may not have been his precise words. He said he could have said "all the interested parties". He could not recall whether he gave these instructions face-to-face or on the phone.
7. Mr Sidhu says he did what he was asked to do and contacted all the interested parties by phone.
8. The complaint appears to be that Mrs Pasion says Mr Sidhu was instructed to contact everyone who attended the open house whereas he only contacted all the interested parties and he called them rather than contact by text message. Mr Pasion is not clear on the point and says he may have said interested parties. There was no evidence about who attended the open house inspection times or who Mr Sidhu contacted. There is insufficient evidence on this point by Mr and Mrs Pasion.
9. Mr Pasion's version of events seems to accord with that of Mr Sidhu's recollection of his instructions. I do not accept that Mr Sidhu contacting interested parties over every attendee, if in fact that was what was asked of him, is a deficiency in his services in the context of this case. In any event the evidence of Mr and Mrs Pasion is conflicting on this point and I question the accuracy of much of Mrs Pasion's recollections. I find no deficiency by reason of an agent calling rather than texting a prospective buyer. I find there was no proven lack of care by Mr Sidhu.
10. Some text messages sent in about September between Mrs Pasion and Jack were put into evidence. The relevant texts are

Mrs Pasion - Aarti told us before that you felt ignored by Parminder (Mr Sidhu) regarding the negotiations for the house because he was favouring the other buyer and that you didn't trust what they were saying to you. Is this correct?

Jack - yes, it is correct. I've shown my interest. He didn't ask me if I can offer higher price, later on when I contact him the property already sold (contract signed).

These texts make no reference to the dates Jack is referring to which are critical in this matter.

1. When Jack was asked to comment about the closure of O'Brien his response by text was, "I don't know any different where O'Brien closing. The person still the same person. I think O'Brien is the franchise and vivid is his own business, I think."
2. Unfortunately, Jack was not called by Mr and Mrs Pasion to give evidence and I find his texts set out above to be of little use without further context.
3. Mr Sidhu's evidence is that he did contact Jack. I found Mr Sidhu to be an honest witness. Mr Sidhu says he spoke with Jack on 3 or 4 June and told him a written offer had been received and said he should make an offer if he was interested. Jack asked him the amount of the offer and Mr Sidhu said he could not disclose the offer. Jack said he would check with his broker and let Mr Sidhu know. He spoke with Jack the next day and he said his broker told him he was not ready but indicated that the maximum amount he would be able to offer was $810,000. Mr Sidhu responded that if he could not make an offer, one is on the table which the vendor will accept. Jack said that was fine and to let him know how the offer goes. He also told Mr Sidhu that his broker needed a rental valuation of Jack's property in order to get finance. Mr Sidhu did the rental valuation for Jack on 6 June 2019. A copy of the rental valuation was produced by Mr Sidhu in support of his version of events.
4. Mr Sidhu produced his texts and messages exchanged with Jack. They show that at 9.45 am he missed a call from Jack but no message was left. At 10:06 am on 6 June 2019 he telephoned Jack and reached Jack's message bank but did not leave a message. The next text at 10.29 am is from Jack giving Mr Sidhu his email address. Shortly thereafter a further text from Jack which states "please let me know if the potential buyer for 22 Merivale Dr got their loan declined. Thank you". These texts support Mr Sidhu's version.
5. Given my findings as to Mr Sidhu's credibility, my findings above, the texts between Mr Sidhu and Jack supporting Mr Sidhu's version of events and the difficulty with the texts Mrs Pasion produced, I find that the conduct claimed in ground 12 has not been proven and there is no breach of s60.
6. The next ground relied upon by the Pasions was ground 15. They say Mr Sidhu sent a deceiving text to Jack on 19 June 2019 saying there was an offer for the property, to get back to him or the house will be sold that night. They say there was no offer.
7. Mrs Pasion said that on 19 June Mr Sidhu asked her to open the property to another buyer who made a verbal offer of $800,000. He showed a text he sent to Jack saying he had an offer.
8. Jack signed a statutory declaration on 14 October 2019 wherein he states "on 19 June 2019 he ( Mr Sidhu) has text me that there is another buyer who is interested to buy the property and already given an offer which is again false because the seller didn't receive any new offer except me."
9. The text exchange on 19 June 2019 being the day after the Prasad contract was cancelled between Jack and Mr Sidhu was produced. It read as follows:-

Mr Sidhu - hi Jack, please call me when you are free. If you are interested in 22 Merivale Drive, please let me know because I don't want you to lose that property. Thanks Parminder

Jack - Hi Parminder thanks and I am working now and can't answer phone call and will contact you later afternoon.

Mr Sidhu -10.47 am - no worries, please call me thanks.

Mr Sidhu -6.34 pm -hi Jack, if you are interested please call me because I have another buyer who is interested to buy this property as he has already given me an offer today. So please let me know if you are not interested, we'll wait for your call thanks.

1. There was no evidence that Mr Sidhu had another buyer who had made an offer on 19 June. In the transcript of the telephone conversation between Mr Sidhu and Mrs Pasion on 27 June 2019 the relevant extract reads:

Mrs Pasion - but you also made deceptive claims saying that there was another interested buyer, and that the house is going get sold tonight if you do not reply to us. But that wasn't the case.

Mrs Pasion - that wasn't the case. No to Jack. You've showed the text message to Harry that day.

Mr Sidhu - that's not. What do you mean it's a deceptive claim?

Mrs Pasion - because that wasn't case. There was no other interested buyer.

Mr Sidhu -and when did I, and when did I send that message?

Mrs Pasion - well you showed Harry that text message that you sent to Jack because Jack was not replying with you.

Mr Sidhu - you know why did I did that? Because you guys pressurise me, you guys given me an ultimatum of 5 o'clock right? Cause I was having a??? Doubt that Reliance might have a different buyer, not this Chinese buyer. That's what I was doing. I was pressurise as well.

1. Mr and Mrs Pasion did not obtain Jack's comments on the extract in the transcript set out in the previous paragraph. Accordingly, he did not have the opportunity to comment upon it. Having read the entire transcript and having Mr Sidhu comment on various parts of the transcript, I am satisfied that it is more likely than not that the above extract is a true and accurate extract of the recorded conversation. In addition, I note that no evidence was led as to the existence of another contract at the time the text was sent to Jack. In the circumstances I find it more likely than not that the text was sent to Jack at a time when there was no other offer on the table.
2. However, Mr and Mrs Pasion cannot be misled or deceived by the context of the text sent by Mr Sidhu to Jack on 19 June 2019. Only Jack could have been misled by the text. The question is whether the sending of a false text for the purpose of trying to get an offer from Jack is a departure from the guarantee to exercise due care and skill.
3. The making of a false statement to entice a bid from a potential buyer is clearly unsatisfactory conduct by an agent. However, Mr and Mrs Pasion have suffered no loss from the actions of Mr Sidhu on 19 June in sending the text to Jack. Accordingly, they are not entitled to any compensation under section 267 of the Australian Consumer Law.
4. The next ground relied upon is ground 16 being that on 27 June 2019 Mr and Mrs Pasion tried to resolve the issue with Mr Sidhu as they did not want to pay him a commission. The effort by Mr and Mrs Pasion to resolve a dispute with Mr Sidhu or the topics discussed during the course of that telephone conversation cannot be said to be conduct in the course of supplying a service under section 60 that gives rise to a compensation claim. Accordingly, this ground must fail.
5. The last ground relied upon is ground 17 which is that on 16 September 2019 Jack confirmed by text message that he felt ignored by Creative during the negotiations and that he did not trust them.
6. Mr Sachdeva gave evidence about his contacts with Jack. For example within 2 hours of receiving a request for a copy of the contract and s32 statement from Jack on 30 May he emailed the documents to him. He spoke with Jack on 6 June as he wanted to know if the house was still available. He was told Mr Sidhu had received an offer and he would speak to Mr Sidhu. Evidence of the text and email exchange confirming these events was produced.
7. Mr Sidhu gave evidence of his contacts with Jack, again supported by production of text exchanges.
8. The lack of precision in the 16 September 2019 text message from Jack and his absence as a witness to be cross examined mean his statutory declaration can be given little weight. The evidence of contact with him given by Mr Sidhu and Mr Sachdeva contradict Jack's text of 16 September 2019. I accept the evidence of Creative on this ground.
9. Mr and Mrs Pasion have not discharged the onus of proof on this claim.

1. Mr and Mrs Pasion have not articulated other than by general reference to part 2.2 of the ACL what type of unconscionable conduct is being relied upon.
2. Section 20 of the ACL provides that:

A person must not, in trade or commerce, engage in conduct, which is unconscionable, within the meaning of the unwritten law, from time to time.

1. Section 21(1) of the ACL provides that:

A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods or services to a person (other than a listed public company); or

(b) the acquisition or possible acquisition of goods or services from a person (other than a listed public company);

1. A useful summary of what amounts to unconscionable conduct was provided by Member Ussher in Iloski v National Australia Bank Ltd (Civil Claims) [2019] VCAT 1039 where he stated as follows

138 The Term "unconscionable" is not defined in the FTA or ACL, however, the courts have determined that unconscionable conduct will arise where there is serious misconduct, being conduct that is so against good conscience, that it warrants intervention by a court.

139 To meet this standard, it is not enough for the impugned conduct to be merely "unfair", "unjust" or "unreasonable". Nor is it enough for the transaction to be grossly one-sided. The use by a party of its stronger bargaining power to achieve an unfair or one-sided advantage does not, by itself, lead to a finding of unconscionable conduct. Driving a hard bargain has never been proscribed under either the unwritten law of unconscionable dealing or the statutory law. The courts have observed that commercial conduct of this type is simply capitalism in action.103

140 On frequent occasions, the courts have held that, for conduct to be deemed "unconscionable", the conduct must contain a necessary and distinguishing feature, namely, the taint of "moral obliquy".

1. Ground 1 has nothing to do with Creative so cannot be unconscionable conduct by it.
2. Ground 2 is not unconscionable conduct. The Pasions "feeling rushed" in the circumstances of this case falls well short of being unconscionable conduct. Mrs Pasion gave evidence that after having a car accident she felt a sense of urgency to move to a new house so as to be closer to her daughter's school. Mr and Mrs Pasion had been interviewing agents since the start of 2019. Given they had met with Creative twice before they signed the authority, I do not accept that they were rushed into signing the authority on 24 April 2019.
3. Ground 3 being the lack of information about commission and ability to negotiate is not supported by the evidence.
4. Ms Pasion says:

1. she interviewed several agencies, five in all to discuss strategies on how best to sell their property. She had lists of things to discuss with them. They settled on O'Brien Real Estate; 2. In a meeting on 23 April at her house she asked Creative why the commission was so expensive. She was told that "this is what we have to pay and that it is backed by their experience". Another agency Reliance had offered a lower price;

1. she had a list to discuss regarding marketing and they agreed to certain marketing expenses; 2. she was never advised that the commission and outgoings were negotiable; and 3. on one occasion Creative discussed with her the various advertising methods available to her.
2. In cross-examination Ms Pasion went on to say:
   1. she was adamant that there was no discussion about commission. There was no discussion about whether the commission was flat variable or performance based. She denied that the draft ESA was left at her property on 22 February. She acknowledged that some of the information was completed on the ESA on 22 February but that the commission part was not filled in. She does not recall what the documents were that Creative left with her on that day but was sure it was not the ESA; and
   2. she recalls asking about commission sharing at the meeting on 23 April as this was raised by the agent. She agrees that when the commission provision was being completed on 23 April there are a number of different figures and that those figures had been discussed with calculations on a separate piece of paper.
3. Mrs Pasion's evidence in cross examination was contradictory. On the one hand she adamantly denied there was any discussion about commission yet agrees that there was discussion about different commission figures and calculations. I find Ms Pasion to be a less than truthful witness on this issue.
4. Mrs Pasion was questioned in cross-examination about when she had asked Creative about commission sharing. She said that on 23 April she asked about it "as we had a question on the ESA about commission sharing on page 7." This statement is contrary to her earlier statement that she never read the ESA.
5. Contrary to his wife, Mr Pasion recalls there being discussion about commission. He says he did not recall much about the first two meetings with Creative. He recalls some things from the meeting on 23 April including the separate sheet of paper where the agents explained performance-based commission and worked out some calculations using different percentages. He said his wife chose to go with the performance-based commission.
6. Mr Sidhu and Mr Sachdeva both gave evidence that the various types of commission were discussed at both the 22 February and 24 April meetings. Mr Sachdeva said he proposed a percentage figure on 22 February and Mrs Pasion negotiated it and they mutually agreed on a percentage. He said he wanted to give them options and be competitive with other agents. He told them they could choose and then they discussed percentages. Mrs Pasion wanted more time.
7. Mr Sidhu said that the performance-based rate inserted in the ESA was lower than the rate initially discussed with Mr and Mrs Pasion.
8. Both Messrs Sachdeva and Sidhu said they left the partially completed ESA with the Pasions on the 22 February as the Pasions wanted to "have a good read" and talk with family.
9. I did not find Mrs Pasion's evidence to be forthright on this point. There was a discussion about the various types of commission that could be charged. It is also clear that the type of advertising that the vendors could utilise was open for discussion. To this end it is accepted that a marketing document was produced at one of the meetings where some but not all the marketing options were selected by Mr and Mrs Pasion and they agreed to pay a price of $2676 for those services. Given the contradictory evidence given by Mrs Pasion, the acknowledgement by all of a discussion about the different types of commission and rates, the statement by the Creative witnesses that commission was in fact negotiated, I am satisfied that there has been no unconscionable conduct based on this ground.
10. Ground 4 has already been dealt with and I find the conduct complained of did not occur.
11. Ground 5 has already been dealt with and I find the conduct complained of did not occur.
12. Ground 6 is that Mr and Mrs Pasion would never have signed the sale authority if they had known Creative would change their company to Vivid. Whilst not clearly stated it appears that the conduct which is said to be unconscionable is the changing of the business name of Creative.
13. There was no suggestion that Creative had been misleading and deceptive at the time the authority was entered into by not informing Mr and Mrs Pasion that the name would be changed in the future or in fact whether this was even something in contemplation at that time. This was simply not explored by Mr and Mrs Pasion. Mr Sachdeva said the decision to leave O'Brien was not made when the ESA was signed. In the circumstances I cannot see how a change of business name even if from a recognised brand can amount to unconscionable conduct in the circumstances of this case. In any event Jack, the ultimate purchaser stated in a text to Mrs Pasion that the change of brand name did not have any impact on him. Furthermore, the property sold within four days of the brand being changed.
14. Ground 7 is that Mr and Mrs Pasion would not have met with Creative if it was trading under the Vivid brand. Mr Pasion knew of O'Brien from its advertising and wanted to go with an established brand. This seems to be the same conduct as ground 6 and for the reasons already stated it is not unconscionable conduct by Creative.
15. Ground 8 is that only eight out of the 10 pages of the signed ESA were emailed to Mr and Mrs Pasion by Creative. The evidence from Creative is that the ESA only comprised 8 pages. The standard O'Brien ESA is 10 pages and each page states "Page 1 of 10", "page 2 of 10" etc. The ESA signed by the Pasions had this numbering but Creative gave evidence that it only ever comprised 8 pages. There was no evidence to contradict this other than the reference to "10" on each page. The 8 pages also included the necessary rebate information required by the Estate Agent Act 1980 (Vic). In the circumstances I am not persuaded that there is anything unconscionable about the ESA being only 8 pages.
16. Ground 9 is that on 29 May 2019 Mr Sidhu informed Mr and Mrs Pasion of the closing of O'Brien Tarneit. He made several verbal promises to change all marketing material to Vivid at no cost. Mr and Mrs Pasion requested that he amend the sale authority and he promised to send an amended sale authority but did not do so.
17. There is no dispute that Mr Sidhu agreed to change the marketing material from O'Brien to Vivid. There is also no evidence or assertion that Creative charged the Pasions for the name change.
18. Mr Pasion said that he was very concerned about O'Brien's closing. Because Mr Sidhu said that he would sell the house that weekend he accepted that "it did not really matter". He accepted that an offer came through on the weekend as promised. He said he wanted amendments to the ESA because he wanted reference to O'Brien to be removed and wanted the contract to stand its ground. He felt the change in the contract would be good leverage and they could tell Creative to decrease the commission but as soon as Mr Sidhu said the house would sell over the weekend, he was comfortable with the existing arrangement.
19. In cross-examination Mr Pasion agreed that his expectation was that Vivid would be named in the ESA and O'Brien removed and this was "okay because you were going to sell the house."
20. Mrs Pasion produced an online advertisement for the property dated 15 September 2019 which listed the agent as Ajay Sachdeva Vivid Real Estate Agents. This advertisement shows that Creative did in fact change the branding from O'Brien to Vivid on the marketing material.
21. Mrs Pasion said there was discussion about the ESA being no longer valid. Mr Sidhu said it was still valid. She told him she wanted an amended authority but did not tell him in what way she wanted the authority amended.
22. It is difficult to see how Creative engaged in unconscionable conduct by not amending the ESA in circumstances where Creative was not informed by the Pasions as to what amendments they wanted and when the property sold 3 days later. The legal entity, Creative, engaged by the Pasions never changed.
23. Ground 10 is that further in the meeting on 29 May 2019 Mr Sidhu assured Mr and Mrs Pasion that the closure of the O'Brien agency would not affect them in any way and that the property would be sold the coming weekend (1-2 June 2019). The evidence is that a written offer was provided on the weekend which the Pasions accepted. I cannot see any unconscionable conduct based on this ground.
24. Ground 11 is that between 4 and 6 June 2019 Mr Sidhu claimed he had contacted Jack and his broker and said the most Jack could offer was $800,000. This is alleged not to be true. For the reasons already given I find that Mr Sidhu did contact Jack and Jack was unable to match the Prasad offer. There is no unconscionable conduct based on this ground.
25. Ground 12 has been addressed. There is no unconscionable conduct based on this ground for the reasons already provided.
26. Ground 13 is that on 6 June 2019 Mr and Mrs Pasion reluctantly signed the Prasad contract because Mr Sidhu claimed it was the best offer so far 4 weeks through the campaign and that the more, they waited the worse their chances of getting the best-selling price. There is no evidence that there is anything unconscionable about this conduct.
27. Grounds 15, 16 and 17 have been addressed. There is no unconscionable conduct based on these grounds. Furthermore, there is no evidence of any loss that would give rise to an award of compensation even if the conduct was found to be unconscionable.

s23 unfair terms of consumer contracts and small business contracts

1. The Pasions claim that clause 18.8 of the ESA is an unfair contract term.
2. Clause 18.8 provides

You charged the Property with the payment of all Commission and Marketing Expenses properly incurred and payable to O'Brien Real Estate which remain unpaid 30 days after the date of issue of any invoice. O'Brien Real Estate shall have the benefit of the charge until all monies due and payable are paid in full. O'Brien Real Estate shall have a Lien over all your documents and other property in the possession or control of O'Brien Real Estate so long as any monies remain due and payable to O'Brien Real Estate pursuant to this Authority. You acknowledge that O'Brien Real Estate may lodge a cave yet on any property subject to the charge granted by this Authority to secure payment of all monies payable to you to O'Brien Real Estate.

1. The submission by Mrs Pasion is that clause 18.8 is unfair because it unnecessarily changes the balance of power. No submissions were made in relation to section 23 of the ACL.
2. Section 23 provides that a term of the consumer contract or small business contract is void if the term is unfair and the contract is a standard form contract.
3. If the clause is an unfair term, then the effect of that is that the clause is void and of no effect. Even if that was a decision I made, it would have no impact whatsoever on Mr and Mrs Pasion. It does not give them the relief they are seeking, namely, to have the commission repaid.
4. Whilst the standard form O'Brien contract falls within the ambit of a standard form contract, I am not satisfied that the clause itself is an unfair contract term. If the commission were not paid, Creative had the right to sue Mr and Mrs Pasion. Giving Creative a right to lodge a caveat for an unpaid commission does not in my opinion cause a significant imbalance to the parties' rights and obligations. For the reason given in these reasons, I have found that Mr and Mrs Pasion were obliged to pay a commission to Creative. s36 wrongly accepting payment
5. On 18 July 2019 Mr and Mrs Pasion paid a commission and advertising expenses to Creative. They say this breaches s36 of the ACL.
6. Section 36 provides that the person must not in trade or commerce accept payment for goods or services if at the time of acceptance, the person intends not to supply the goods or services.
7. Mr and Mrs Pasion have misunderstood the legal effect of section 36. It has no application in the present circumstances. Accordingly, their claim under this provision must fail.

1. None of the grounds relied upon by Mr and Mrs Pasion support the legal basis upon which they have sued Creative. Accordingly, their claim is dismissed.