Australian Real Estate Law and Dress Code
Added on 2020-04-21
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LAW IN AUSTRALIAANSWER – 1It is essential to keep in view that Common Law shall be the prevailing factor indeciding the fact whether a real estate agent has the obligation to inform a prospectivebuyer about all the unnatural deaths which have occurred on the property which is thesubject matter of business between the two. The five precedents taken into considerationby the Honourable Brisbane Magistrates Court and why they were binding or notbinding on the case between Ben Harmon v Victorian Mansion Realtors has beenexplained below.1.In the absence of a relevant Australian authority, Tate v Violet Real Estate isprima facie binding on the District Court in which the judgment was in favour ofthe real estate agent. This was because prior to the enactment of the Australia Actof 1986, the decisions of the higher authorities remained binding on lower courts1.2.But this is not the case with the High Court of Australia, which was kept out ofthe purview of this enactment. Hence, the High Court was not obligated to followthe doctrine, but still a bench of 6 judges could not pass a binding judgement inthe 2009 case of Constance Brick Homes v Larry as the final verdict was a tie at3-3.3.In the Moira v Racey Home Help Agency, the case decided by the Victorian Courtof Appeal in 2010, the Common Law again prevailed and following the precedentof the New South Wales Court of Appeal, the Victorian Court gave a judgementin favour of the purchaser2.4.A year later, in 2011 the case of Vivien v Hayden House Trip can be considered asmerely a persuasive decision as the Queensland Court of Appeal followed theHigh Court judgement and ruled in favour of the purchaser. Although, being apersuasive judgement, this cannot be considered as a binding judgement under theCommon Law3.5.The 2017 decision of the Queensland Court of Appeal in the case of Shacath vDark Angel Homes was in favour of the purchaser and was a decision based on a1Broome v Cassell & Co Ltd2Zotovic v Dobel Boat Hire Pty Ltd.3Langley v Langley
superior court decision in the same hierarchy to the Queensland District Court,therefore it can be considered as binding under the Common Law principles4.From the above five judgements, it is safe to conclude that in the final analysis, thecompetition settles down to the decision of the High Court in the case of ConstanceBrick Homes v Larry and the latest judgement of 2017 of the Queensland Court ofAppeal’s decision in the case of Shacath v Dark Angel Homes. Hence, the finaldecision, to be considered under the Common Law shall be that Judge Oneton is boundto follow the decision of the Queensland Court of Appeal in the case of Shacath v DarkAngel Homes and therefore must uphold that a real estate agent is duty-bound todisclose to the purchaser all the details about any murder which took place in theproperty which is under consideration5.ANSWER – 2 (a)The following limitations explain the reason. Under Section 4(a) of Magistrates CourtsAct 1921 (Qld) cases pertaining to personal action, where amount claimed does notexceed the prescribed limit of $150,000 should be commenced in the Magistrates Court.However, under Section 68(1)(a) of the District Court Act 1967 (Qld) states that theDistrict Court have the jurisdiction to hear personal actions in which the value ofdamages sought is $750,000. Since, in the case under discussion, the damages soughtwere $140,000 and this is within the prescribed limit of the Magistrates Court.ANSWER – 2 (b)Under Section 118 of the District Court Act 1967 (Qld), Victorian Mansion Realtorshave the right to appeal to the Queensland Court of Appeal. Since the amount of claimdoes not exceed the jurisdictional limit of a Magistrates Court, an automatic leave is notapplicable. The appellant is required to seek an appeal under Section 118(2).ANSWER – 34Abrams v Lucas Watering Hole5Australian Agricultural Co v Federated Engine-Drivers and Firemen’s Association of Australasia
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