CONSUMER AFFAIRS VICTORIA v PETER JOHN MERICKA & ORS

After a decade of representing vendor clients in the sale of their properties, and after two years of court preparation and the incurring of massive legal costs, the matter of DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA and PETER JOHN MERICKA & ORS has been listed for judgment on Friday 23 March, 2012.

CAV and the estate agent monopoly

It is almost 10 years since first I offered consumers a genuine alternative to the corrupt and hugely expensive real estate agent monopoly regulated by Dr. Claire Noone and Consumer Affairs Victoria.

Two years ago, spooked by my plans to franchise the concept of Lawyers Real Estate, Dr. Noone launched a Supreme Court action in a bid to stop me. Dr. Noone’s plan was to force me to stop providing an holistic one-stop-shop service to consumers by either of two methods:

1. Force me to shut my business down under the threat of prosecution for not holding an estate agent’s licence; or if my firm did obtain an estate agent’s licence
2. Force me to shut my business down by endorsing my firm’s estate agent’s licence so as to prohibit it from offering legal services while being the holder of the licence.

Either way, Dr. Noone was determined to ensure that consumers could not have a choice between a real estate agent and their lawyer for the purposes of negotiating the sale or purchase of real estate.

Damage to my business

The past two years have taken a huge toll on my business through attacks on a variety of fronts.

Clients attacked

A well-known rogue and licensed conveyancer obtained a copy of the Supreme Court writ, photocopied it, and used it to upset and intimidate my clients. He attached a false claim stating “DID YOU KNOW Peter Mericka is charged with alleged DECEPTIVE AND MISLEADING CONDUCT BY CONSUMER AFFAIRS“. He even sent one to my parents-in-law whose property was being sold through my firm. Some clients remained fiercely loyal, and delivered their copies of the documents to me with good wishes and encouragement to “maintain the rage” and to “keep up the good fight”. Others, understandably horrified and confused, promptly ended their retainers with my firm and engaged licensed real estate agents.

Personal attacks in the media

Simon Johanson is the Property Editor of The Age Newspaper. Johanson telephoned me one day, supposedly to get my side of the story, and then completely ignored what I’d told him and printed an article the opening paragraph of which reads, “Consumer Affairs Victoria is suing a Croydon lawyer who admits he has reaped $880,000 over the past eight years by acting as a fixed-fee real-estate agent when he does not hold a licence.”

Johanson used a simple calculation based on the false assumption that all 200 of the sales had been charged at the rate of $4,400.  He ignored the fact that our fixed fee is fully inclusive of photography, signage, internet listings conveyancing, GST etc., and that the profits gleaned from our transactions are significantly less than those of real estate agents who pay no more than we do in overheads, but “reap” much higher profits through their commissions.

Johanson made no mention of the hundreds of thousands of dollars saved by consumers who freely chose to use Lawyers Real Estate rather than real estate agents, and there was no analysis of the way in which Lawyers Real Estate actually operates. But then, The Age is not about to keep the gloves on when dealing with someone who criticised its use of rebate bribes to attract consumer funded advertising through its real estate agent clients – those “rivers of gold” are far too important to sacrifice in the name of ethical journalism.

Real estate agent attacks via blogs and social media

Real estate agents had a wonderful time with the court case. Quite unconcerned about his obvious contempt for the Supreme Court, real estate agent trainer Greg Vincent invited real estate agents to judge me publicly in his blog posting, “You be the judge…are Lawyers Real Estate breaking the law or not?” Of course, real estate agents from all over Australia were quick to don their wigs and gowns and judge me. I did my best to defend myself, but I was overwhelmed by similar attacks on Facebook, Twitter and LinkedIn.

Ignored by my professional association

Many people asked me about the Law Institute of Victoria (LIV). What was the LIV’s position on all this? The first judge appointed to hear the matter (he was later replaced) advised the parties that they should invite other industry stakeholders to participate in the matter, as it was of great importance to the industry.

I wrote to the LIV, but my letter was ignored. Suffice it to say, the position of the LIV is that it has no position. The LIV just hopes that the matter will disappear. My view is that the LIV is just sitting with those of its members who are lamenting the loss of their Cheese (see Who Moved My Cheese?), and has no interest in, and no stomach for, any form of real change in its industry.

One observation that I make regarding the LIV is the fact that one of the members of the Property Law Committee, which is highly influential in formulating LIV policy, is none other than the Corporate Solicitor for the Real Estate Institute of Victoria. Furthermore, another member of the same committee was procured by Consumer Affairs Victoria to give evidence against me (evidence which, as it turned out, was of little value to the court).

Personal toll

We have lost staff because we were unable to provide them with security into the future. In the beginning we had no idea as to whether this matter would drag on for 1 year, 2 years, 3 years or more. People need security in their lives, they need to be able to make plans. Fortunately, the staff who left us have been able to find security elsewhere. Those who remain are where we have been for the past two years – on tenterhooks.

Of course, the emotional and financial stress of the entire ordeal has had a profound affect on our family and our lives generally.  I won’t go into details, but I would not wish this experience on anyone.

Conclusion

Well, the waiting will soon be over. The matter of DR CLAIRE NOONE, DIRECTOR OF CONSUMER AFFAIRS VICTORIA and PETER JOHN MERICKA & ORS has been set down for hearing as follows:

Date: Friday, 23 March 2012

Time: 10:00am

Location: Courtroom 13 of the Supreme Court of Victoria

I invite anyone and everyone who has an interest in this matter to be in attendance. Whether you are a supporter, detractor or whatever, you are quite welcome to attend as far as I am concerned.

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