Lunatic landlord, does he contravene the ACL?

Are “values” sufficiently nebulous as to be outside the ACL?

Also, it doesn’t seem as if you have entered into an arrangement with this company for the provision of any goods or services.

If you politely complain about something and the response is a torrent of personal abuse, that is rubbish customer service, no argument from me, but: Move on? Find a company that you want to deal with?

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Agree with @person.

Posted corporate values have little to do with the Australian Consumer Law. It is something the business or orgsnisation aspires to or encourages with its employees/agents. There may be cases where the values flow through to advertising or agreements when a service is engaged or product is purchased. In such case, what the agreement or advertising says is relevant to the ACL.

For example, a corporate value may be that a business maybe something like maximise benefits to a customer through maximising the vendors sale price. The agreement or marketing material with the real estate states that they ‘promise to get the best price for the customer/vendor’. One then decides to accept the services based on this only to find out later that the agent had a conflict of interest (say sold the property to a close friend) and knowlingly negotiated a sale price less than market value (viz. didn’t maximise the potential price for the customer). Then this may have ACL implications as they potentially have not upheld their side of the agreement/what they advertise.

Just because a corporate value may say something…such as ‘Being Courageous’ it doesn’t mean that under law they have to abide by these values for general contact with an organisation. If they don’t uphold their corporate values, over time such may impact on their reputation within the industry they work and that of potential customers.

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Anyone who leaves a 1 star review because they waited 2 days is the problem not the issue. Google and Facebook are both very quick to act when businesses complain of vexatious reviews. The reviewers own review history is usually the major factor in having reviews. As a small business owner I can’t stand people who react in such a childish manner.

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That’s correct because of the service I received. However my moving on is not relevant to the ACL issue I have raised in this forum.

What intrigues me is the level of BS that comes out of corporate announcements that are not fulfilled when it is inconvenient to do so, and as such the following is how I see it.

The ACL covers misleading or deceptive conduct or conduct that is likely to be misleading or deceptive, and it extends to all situations in the course of trade or commerce.

Clearly in this case the “Harcourt values" are representations about its business activities while intending to and in fact engaging in trade or commerce with consumers. The whole exercise is to polish the outward appearance of Harcourts so as to induce consumers to deal with the company or its franchises.

In my case, the representations did not come into fruition and there is a multitude of other cases where consumers dealing with Harcourts have found the representations not coming into fruition, which causes the consumer to wish he or she had never dealt with Harcourts in the first place.

Harcourts are not alone in this sort of activity, and there are a number of other real estate brands that are responsible for a considerable amount of consumer dissatisfaction. It seems that this has become the normal way of doing business in this particular industry.

The bottom line is that it is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. The ACL imposes a standard on the market place, and the relevant question is, was the consumer led into error?

The facts are :
• Harcourts’ representations (the Values and Philosophy) are made in trade or commerce;
• consumers are entitled to believe and be induced by the representations;
• when engaging with Harcourts some of the representations don’t come into fruition;
• as a result, depending on the circumstances, consumers that suffer a loss or damage are entitled to claim relief under the ACL;
• that relief include damages, injunction, rescission of contract (such as a rental lease) and other measures.

The matter can also be aggravated by Harcourts not bothering to even try to fix the problem it has created and just walks away from it, and it is my understanding the aggravated damages can be also awarded under the ACL.

I would be grateful if anyone can point out where the Harcourts conduct is an exception to the above.

I respectfully believe you are wrong phb.

Please read my response to “person” as to why you say published corporate values are not representations and have nothing to do with the ACL.

The ACL is about protecting ‘consumers’. What a consumer is is defined under the Australian Consumer Law.

From what you have posted and hopefully I have this correct… you made contact with with Harcourts in relation to a property they had advertised as being potentially available for rent…and after two days because you didn’t hear from them, you decided to negatively review or make public complaint about Harcourts (such reviews or complaint made has not been provided and context is unknown). After this review and in relation to this review/complaint, you indicated that Harcourts sent a personal and inappropriate email to you (which an extract has been quoted).

This email relates to personal communications between Harcourts and yourself in relation to the complaint/review made by you (not in relation to the advertised rental property or services which could have been commissioned in through Harcourts if the rental proceeded).

If the response was in relation to the advertised rental property, there would be no dispute that the email could possibly fall under the ACL if one could prove its context was misleading or false advertising. From the information above, the response was in relation to the complaint/public review.

From the information provided, it was in relation to the nature of the online review/complaint that was made about Harcourts. Looking at this, I am not sure it would meet the definition of consumer under the ACL. It appears to be a personal matter between both parties in relation to the content of a review…which would possibly fall outside the ACL as it isn’t about complaints or online review responses. It is however possible that there are other laws which may be relevant such as defamation law if it meets such requirements.

One has to also remember that throwing petrol on a fire doesn’t put is out, it usually only results in an inflamed situation.

You are missing the point phb. Sorry if I didn’t explain it properly.

Just as a possible response to whether values that a business expresses may be legally actionable Husqvarna admitted the following (article can be read at Husqvarna admits it likely misled franchisees following ACCC action - SmartCompany):

“Outdoor power tools company Husqvarna Australia has admitted it likely misled its franchisees when it told them that the Franchising Code of Conduct did not apply to their dealership agreements.”

While this statement is only the lead to the rest of the reasoning and I am definitely no lawyer, legal expert or have any legal training beyond accounting, I think if a company makes a public statement about how they will act and then carry out acts contrary to those published principles it just may be possible to hold them to legal account.

As to the short timeframe involved in expecting a response, I again think there can be reasons why someone could expect a quick response. If for example a contract needs to be signed within a short period and there are concerns with some of the terms then a quick response to any query should be speedy even if only to request more time to respond. This could apply in other situations eg a property is up for rental and a person is required to attend an inspection to determine suitability and the agent then delays notifying such that a possible tenant is disadvantaged in their application. Would it be something someone could take to a Court or Tribunal, probably not but they may then post a review that was critical of the process that happened.

@gordonc
The current discussion around AirBnB may also may have similarities about reviews and how a business represents itself and policies they adhere to (or don’t adhere to). This topic discusses whether a business could be held to account about how it actually deals with these issues. See:

The creator of the topic also believes that reviews and the way they are used are part of the problem.

Also from the ACCC is this:

"For instance, a business must not make false or misleading representations about:

  • the standard, quality, value or grade of products or services".

Services here is important as the Estate Agent is offering services both to potential and actual renters, landlords, sellers and buyers. They make representations about the standard & quality of their services. You complained about the standards & quality of their services which is your right to do so. Based on what you have supplied the responses appear that they may be very unsatisfactory in their content and how long it took to provide those responses. Again this is only my opinion that I think this may be something the ACCC might consider a failure of the business in regards to it’s representations about the standards & quality of their services.

The ACCC may be interested in a formal complaint made to them but it is rarely something they will act on if it is isolated in nature. They tend to take action when a problem becomes one where they have received many complaints but it isn’t impossible that they may act if they believe it will serve a greater public good/need.

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@grahroll started an excellent allied topic,

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Thank you grahroll for your informative input.

I must clarify one thing regarding myself in this issue. I am not claiming to have the ACL available to myself. I did not rely (a necessary component for ACL) on the “values” representations prior to contacting Harcourts Caloundra.

What I am saying is that I became aware of the representations and ACL implication as a result of my discourse with Harcourts. Although Harcourts did not live up to its representations during the discourse I believe this is basically not actionable because the discourse probably took the matter outside of the ACL.

The issue as far as I am concerned personally is, the disgusting hypocrisy of the Harcourts conduct.

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Thank you TheBBG. Yes puffery claims such as “we are the best” or “our cars best value in town” are not actionable, basically because no-one really believes them, or is not silly enough to believe them.

I think it would be taking things too far to disallow it, but I also think that businesses that use puffery are foolish, and if I see it being used by a business, I would be unlikely to deal with the business.

So in effect as far as I am concerned, the puffery BS does not assist a business, but instead detracts from its credibility.

As far as the Harcourts “values”, in my opinion this is not puffery but hard facts being falsely represented.

It is interesting that Harcourts Caloundra represent that “it is the Most Awarded Real Estate Agency in Caloundra” but does not link off to the awards and in my searching can find non.

Another hard fact perhaps being falsely represented? I think I may ask them about these awards.

It could be the most Shonky’s :smiley: :rofl:

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Or because such a claim is untestable. What does “best” even mean?

I don’t think that having “Values” is pointless. I agree that sometimes a business will fail to live up to its “values”. If a business repeatedly fails to live up to its values and consistently does nothing about it then having “values” may well be pointless, and their “values” may well be puffery.

The situation is more complicated still in a franchise arrangement i.e. where the franchisor (head office) may say one thing but the franchisee (individual outlet) may operate independently and hence may or may not be bound by and may or may not be consistent with what head office is saying.

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In this case Harcourts Caloundra repeat the values on their own website.

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I sent the request for award details. What’s the betting on receiving a reply, or perhaps I will get more abuse.

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This is very easy to defend. They may be the only Harcourts Agency in Caloundra and therefore they would automatically be the most awarded in the Harcourts business empire in Caloundra.

Even if it related to any agency (including other companies), Harcourts could easily issue any number of internal awards to satisfy this claim.

‘Award’ can mean anything.

It is a bit like a company saying that they have the cheapest Australian price available for a particular line of products, when in fact they are the only retailers of that particular line of product. There are many examples of this whether it is Bunnings (which has exclusive model numbers only available at Bunnings), the mattress industry (which rename the same mattress sold to different retailers) etc.

The claims can be factual and dependable, but are meaningless and are used solely for marketing purposes.

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Including a Shonky. :rofl:

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But in this case they clearly mean it to be something complimentary.

They also use “Most Awarded Real Estate Agency” in their meta title enabling it to be published as the page heading, and also in the meta description, so although it doesn’t appear on the body of the page, it enables Google to publish it…

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An opinion from LegalVision re misleading or deceptive conduct (https://legalvision.com.au/a-basic-guide-to-misleading-and-deceptive-conduct-and-false-misrepresentations-australian-consumer-law/):

“Also, you must not undertake conduct that is likely to mislead or deceive your customers. This conduct might include statements or representations that you make

Another from the ACCC:

“It is illegal for a business to engage in conduct that misleads or deceives or is likely to mislead or deceive consumers or other businesses. This law applies even if you did not intend to mislead or deceive anyone or no one has suffered any loss or damage as a result of your conduct.

Based on this I think whether you relied on it or not doesn’t take it outside the ACL. It only has to have the likelihood to deceive or mislead. From the LegalVision opinion “The critical difference is whether you intended to cause the error. You can mislead someone by mistake, but you can’t deceive someone by mistake. While both types of conduct are prohibited”. Did their representations about the standard of service have the likelihood to mislead, if it did it may be a breach of the ACL. ACL in this does not actually require you to rely on it.

The author of the thesis paper referenced in the linked topic re puffery undertook a survey to see if the puffery influenced people enough. Their findings were that it did, enough in fact to consider a submission to the ACCC to look at changes to the Law.

While Harcourts’ (meaning the actual business not the entire Group) representations may not have done it to yourself (but I feel from your posts that it did) or even some others, it may have been something others have assumed was reliable and caused them distress when the business perhaps didn’t “live up to” those representations about their standards and quality of service. Nor does the ACL require anyone to have been “mislead” it just has to have the “likelihood” to do so. So it’s not “no-one” as you were affected or relied on their statements re their standards and quality of service even if only marginally (ie you dealt with them expecting a professional approach to their behaviour). You are still likely upset (even perhaps angry) with the standard of behaviour, so much so that you created a webpage about it, you posted on this forum, and you complained to the business, Harcourts Group, and the REIA.

How many others may have been similarly affected or relied on their representations? Are those affected silly?

You did ask about the ACL implications, I don’t know that they have breached and the only way it may be tested properly is to complain to the ACCC. So the answer is make a complaint to the ACCC as the business may have breached the ACL. It may be something the ACCC determines is worth taking action over or it may not. .

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Yes, I could launch a proceeding applying for an injunction to stop their conduct. But no way am I going to do that.

I didn’t complain to the REIA, because that would be a waste of time.

I think as far as ACL goes, persons are meant to be “ordinary” or “reasonable”.

The High Court enlarged on this by stating ‘ordinary’ person is not necessarily particularly intelligent, well- informed or educated, but is not ‘extraordinarily stupid’.

While I don’t disagree with you regarding puffery, I think it may open up a whole new world of litigation on an already overly taxed legal system.

Regarding complaining to the ACCC (I did a post some time ago here: The accc has failed for 8 years), I am not going to waste my time again just to get the brush off. The investigation I believe Choice is making into the rental situation will have far more weight, and I hope they are taking notice of the matters raised on the postings on this page.
Had a bad experience renting? Tell your story to the media

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