WA agent found "not guilty" after advertising home in wrong suburb: Consumer Protection
A local real estate agency involved in the advertising of a Cookernup property and a Pelican Point home has had his “not guilty” plea upheld, after an appeal made against a Bunbury magistrate’s decision.
The Supreme Court dismissed the Commissioner for Consumer Protection’s appeal against the agent regarding a case of potentially misleading advertising of the two separate property listings. The result was released this week.
The real estate agency in question was Barr and Standley, and there were six respondents of the appeal - all associated with the agency.
The first charge involved the January 2012 advertising of a Cookernup property, that said it was located in Harvey. The existence of an interactive map on the online advertisement was enough, ruled by the judge to sufficiently qualify the location of the property.
The property, advertised as "47 Hardwick Street, Harvey" was said to be not strictly misleading by Justice Jeremy David Allanson, of the Supreme Court WA. The home, a four-bedroom, two-bathroom house, was asking for $535,000 plus.
The prosecutor opened the appeal by saying that consumers wishing to find a property online use search terms to the narrow the field, most commonly by location and price.
"Once a property is displayed on the website by the agency, any member of the public can locate the advertisement while searching online for properties to purchase under the search terms of 'price' and 'location'. It is the content entered by Barr and Standley in relation to a particular property that dictates the content of the online advertisement seen by the consumer.
"Price and location are specific fields on the web page that require data entry at the time the property listing is created by Barr and Standley. A property advertisement on the web page will have the location in prominent font at the top of the first page with the price underneath and it is then possible to scroll down to read a more detailed description of the property features or characteristics," the prosecutor said.
The prosecution also alleged that it was initially advertised in the correct location for three weeks, but was then changed to Harvey.
Rhys Standley, from the agency, said that few people knew of the township and it would generally be referred to as "being near Harvey".
Justice Allanson said that the representation was, as a result of the Google map inclusion, not strictly misleading. It took the buyers to the true location, some 12 kilometres from Harvey township but within the Shire of Harvey.
The second charge revolved around a listing of a Pelican Point property between January to April 2012. The complaint had been made to the authorities by another real estate agent.
The home was first advertised for $2.2 million to $2.5 million, and later altered to $1.5 million to $2.5 million, despite the owner saying they would not accept anything below $2.2 million.
Jay Standley, from the agency, said: "I think they would put a range on it where the bottom end would be market value and you would endeavour to get as much as we can."
He further said that while vendors will say they will not take under a certain amount, and buyers will say they won't pay over a certain amount, the reality is very different.
The respondents said that: "A certain amount of 'puffery' is to be expected to attract potential purchasers in the real estate market."
Justice Allanson said that Magistrate Langdon erred in coming to the conclusion, but did not look to a guilty verdict. This was due to a lack of evidence presented in support of the charge that would show how the audience would have responded to the advertised price range.
The defences case used arguments that the price range was agreed to by the owner. This was rejected by Justice Allanson.
The notion that it was widespread practice by Bunbury agents and that the lower price was based on market value were also rejected notions.
Commissioner for Consumer Protection, Anne Driscoll, said that despite this dismissal, it does not remove the legal requirements not to mislead buyers.
“The original magistrate’s decision and the subsequent dismissal of our Supreme Court’s appeal are judgments made on the specific circumstances and the evidence presented in this particular case,” Driscoll said.
“It should not be taken by the industry as a licence to advertise a property as being located in a more desirable nearby suburb, or advertised at a price that is not actually acceptable to the owner.
“The overarching principle of the Australian Consumer Law is that advertising must be fair and accurate, and not misleading. Consumer Protection will continue to enforce the law in relation to false and misleading representations and ‘bait’ advertising, and we will take action if there is evidence that these laws have been breached.”