Contractor telling me outrageous lies. In writing. What are they guilty of? Lots more inside.
April 12, 2008 9:52 PM Subscribe
Contractor telling me outrageous lies. In writing. What are they guilty of? Lots more inside.
This is Australian property law, and I realise that none of you Are My Australian Property Lawyer; but I'd like to hear from anyone who thinks they have a useful idea, suggestion or example.
I own one of the units in a building. An Act in state law requires every such building to contract a managing agent. We're unhappy with the agency we're currently using and have cancelled the contract. They have replied saying that our cancellation is invalid, quoting Section X, subsection Y of the Act. But the section they quote isn't even relevant*. It's a lie, plain and simple, intended to mislead us into accepting that they retain the contract.
This is not the first time they've done something like this. I have a letter from them stating unequivocally that the phrase "not less than seven days" means "seven days or less". It's pretty outrageous.
More seriously, they currently claim they have a three-year contract with us. But it turns out the three-year contract came about (before my time) when they "renewed" a one-year contract whose provisions state that it can only be renewed for an equal period.
There's no subtlety or room for interpretation in the Act. It's surprisingly simple and straightforward. So, these people are lying to us, in writing. All I can do is write back and say "That's not the case. Your contract is cancelled".
Let's assume that a reasonable person would conclude that they're deliberately attempting to mislead us in order to retain a contract we have legally cancelled; that they've acted unethically and in bad faith.
So ... what are they guilty of?
Is there a criminal offence here? Something like "obtaining money under false pretences"? "Deceptive conduct"? "Misrepresentation"? Or do I have grounds for a civil lawsuit against them, and if so, what could I claim? Their fees are about 50% higher than the industry standard. Could I make a claim against them for the difference in fees -- between what they charged during their unlawful 3-year contract and what we could have paid had we been able to cancel?
My course of action so far is to do all I can for free. To complain to the state board which arbitrates such disagreements. To complain to the state institute of property managers and estate agents. To simply sign a new contract with a new agency when this one runs out and return their bills if they continue sending them.
But as you can tell, I'm pretty pissed off about this. I don't like being lied to. I'd like to make things as hard for them as possible. My dream is to see them on TV with a microphone shoved in their face and some guy asking "aren't you ashamed of yourselves?" as they cover their faces and run for a car. Shortly before they get put out of business for their crimes.
But realistically, what's the worst I can do?
* The boring details are that they quoted a section saying "the Chairman must call a General Meeting when asked to do so in writing by an eligible Member of the Committee". They say the meeting wasn't valid but haven't sighted such a request in writing. That section merely describes the duty of a Chairman to call meetings when required to do so by a third party. The very next clause in the act says the Chairman can call a meeting whenever they like. I'm the Chairman.
This is Australian property law, and I realise that none of you Are My Australian Property Lawyer; but I'd like to hear from anyone who thinks they have a useful idea, suggestion or example.
I own one of the units in a building. An Act in state law requires every such building to contract a managing agent. We're unhappy with the agency we're currently using and have cancelled the contract. They have replied saying that our cancellation is invalid, quoting Section X, subsection Y of the Act. But the section they quote isn't even relevant*. It's a lie, plain and simple, intended to mislead us into accepting that they retain the contract.
This is not the first time they've done something like this. I have a letter from them stating unequivocally that the phrase "not less than seven days" means "seven days or less". It's pretty outrageous.
More seriously, they currently claim they have a three-year contract with us. But it turns out the three-year contract came about (before my time) when they "renewed" a one-year contract whose provisions state that it can only be renewed for an equal period.
There's no subtlety or room for interpretation in the Act. It's surprisingly simple and straightforward. So, these people are lying to us, in writing. All I can do is write back and say "That's not the case. Your contract is cancelled".
Let's assume that a reasonable person would conclude that they're deliberately attempting to mislead us in order to retain a contract we have legally cancelled; that they've acted unethically and in bad faith.
So ... what are they guilty of?
Is there a criminal offence here? Something like "obtaining money under false pretences"? "Deceptive conduct"? "Misrepresentation"? Or do I have grounds for a civil lawsuit against them, and if so, what could I claim? Their fees are about 50% higher than the industry standard. Could I make a claim against them for the difference in fees -- between what they charged during their unlawful 3-year contract and what we could have paid had we been able to cancel?
My course of action so far is to do all I can for free. To complain to the state board which arbitrates such disagreements. To complain to the state institute of property managers and estate agents. To simply sign a new contract with a new agency when this one runs out and return their bills if they continue sending them.
But as you can tell, I'm pretty pissed off about this. I don't like being lied to. I'd like to make things as hard for them as possible. My dream is to see them on TV with a microphone shoved in their face and some guy asking "aren't you ashamed of yourselves?" as they cover their faces and run for a car. Shortly before they get put out of business for their crimes.
But realistically, what's the worst I can do?
* The boring details are that they quoted a section saying "the Chairman must call a General Meeting when asked to do so in writing by an eligible Member of the Committee". They say the meeting wasn't valid but haven't sighted such a request in writing. That section merely describes the duty of a Chairman to call meetings when required to do so by a third party. The very next clause in the act says the Chairman can call a meeting whenever they like. I'm the Chairman.
Pleaes don't put this level of detail on the internet when it's a legal matter. It would suck to have the adverse party be able to use any of this against you.
If you feel you're being lied to and don't believe the contract is valid, I suppose you could just cancel the contract and see whether or not you get sued. Then when you get sued you can countersue or defend on the notion that they were lying to you and the agreement was unenforceable.
But this is a pretty stupid option because it exposes you to a lot of liability when you could just save yourself the trouble by paying a thousand bucks for four hours worth of time from a decent property lawyer. Not every question screams "get a lawyer". But this one does.
posted by Happydaz at 11:31 PM on April 12, 2008
If you feel you're being lied to and don't believe the contract is valid, I suppose you could just cancel the contract and see whether or not you get sued. Then when you get sued you can countersue or defend on the notion that they were lying to you and the agreement was unenforceable.
But this is a pretty stupid option because it exposes you to a lot of liability when you could just save yourself the trouble by paying a thousand bucks for four hours worth of time from a decent property lawyer. Not every question screams "get a lawyer". But this one does.
posted by Happydaz at 11:31 PM on April 12, 2008
im not a lawyer and not going to give advice from that perspective - except that from what u say briefly i dont think there is a civil lawsuit in it.
i own a few properties in australia.
you say "i am pretty pissed off about this".
i think you are going about this all wrong. don't focus about trying to get revenge, exposure or retribution. forget about your "dream". forget the worst you can do.
just focus on getting out as cheaply and cleanly as possible, and finding a good agent.
then u can get on with enjoying your life.
can't the state board give you advice? i think you could get out of this without a lawyer.
posted by edtut at 1:28 AM on April 13, 2008
i own a few properties in australia.
you say "i am pretty pissed off about this".
i think you are going about this all wrong. don't focus about trying to get revenge, exposure or retribution. forget about your "dream". forget the worst you can do.
just focus on getting out as cheaply and cleanly as possible, and finding a good agent.
then u can get on with enjoying your life.
can't the state board give you advice? i think you could get out of this without a lawyer.
posted by edtut at 1:28 AM on April 13, 2008
What state are you in. in NSW you can talk to the department of fair trading who in my experience are dilligent, responsibe and give very good advice. If you're not in NSW I would assume that similar bodies exist in other states.
posted by singingfish at 2:39 AM on April 13, 2008
posted by singingfish at 2:39 AM on April 13, 2008
I'm not a lawyer, but I suggest they are guilty of nothing much. If they read a law one way (even if it provably incorrect) and you read it another, you have a difference of opinion. You can arbitrate or go to court to see who is right, but my bet is these guys are doing the same as you - trying whatever steps short of legal action they can to keep your contract.
From their point of view, a letter stating that, in their opinion, you are bound by the contract is a cheap way to keep the lucrative contract. This is what many, many business legal battles come down to, a case of what can we possibly, even unreasonably, claim to keep our position.
If they scare you, they keep the contract. If you get a lawyer, I expect they will advise you to call their bluff.
That said, you obviously have not given us copies of the contract etc. so there may be other provisions that bind you.
So get a lawyer, but I would instruct them to:
- get us out of this contract
- advise whether there is a prospect of any remedy if they overcharged you - but note, just being expensive is not a problem, you would need to show errors or fraud.
Letters to fair trading and possibly the rental tenancies tribunal etc. would also be good.
As a final point, a lawyer friend told me that in NSW the tenancies tribunal has been expanded to cover all sorts of consumer gripes, and is now called the Consumer Trader and Tenancy Tribunal I think.
Basically, it allows disgruntled consumers to take vendors to court in a setting with no legal counsel. I believe there is a maximum value on the dispute, but I gather they deal with this type of "not behaving fairly" gripe all the time, and would seek to deliver 'common sense' justice.
In your case, however, with others with an interest on the outcome (the other owners) that would probably be a poor choice to pursue.
posted by bystander at 3:46 AM on April 13, 2008
From their point of view, a letter stating that, in their opinion, you are bound by the contract is a cheap way to keep the lucrative contract. This is what many, many business legal battles come down to, a case of what can we possibly, even unreasonably, claim to keep our position.
If they scare you, they keep the contract. If you get a lawyer, I expect they will advise you to call their bluff.
That said, you obviously have not given us copies of the contract etc. so there may be other provisions that bind you.
So get a lawyer, but I would instruct them to:
- get us out of this contract
- advise whether there is a prospect of any remedy if they overcharged you - but note, just being expensive is not a problem, you would need to show errors or fraud.
Letters to fair trading and possibly the rental tenancies tribunal etc. would also be good.
As a final point, a lawyer friend told me that in NSW the tenancies tribunal has been expanded to cover all sorts of consumer gripes, and is now called the Consumer Trader and Tenancy Tribunal I think.
Basically, it allows disgruntled consumers to take vendors to court in a setting with no legal counsel. I believe there is a maximum value on the dispute, but I gather they deal with this type of "not behaving fairly" gripe all the time, and would seek to deliver 'common sense' justice.
In your case, however, with others with an interest on the outcome (the other owners) that would probably be a poor choice to pursue.
posted by bystander at 3:46 AM on April 13, 2008
Generally, misinterpreting the law --- even very brazenly --- is not a crime.
posted by jayder at 10:35 AM on April 13, 2008
posted by jayder at 10:35 AM on April 13, 2008
Best answer: The A triple C, my friend. ACCC
From what I've heard they are relentless bastards, you do not want them scrutinizing you, Ugh!
So I think you should tell them right away so they can get work!! I'm pretty sure they cover your dilema, but if not, it is their area and they will know who you need to see.
Best of luck stickin' it to 'the man'!! Hope I was helpful in some way.
posted by mu~ha~ha~ha~har at 10:48 AM on April 13, 2008
From what I've heard they are relentless bastards, you do not want them scrutinizing you, Ugh!
So I think you should tell them right away so they can get work!! I'm pretty sure they cover your dilema, but if not, it is their area and they will know who you need to see.
Best of luck stickin' it to 'the man'!! Hope I was helpful in some way.
posted by mu~ha~ha~ha~har at 10:48 AM on April 13, 2008
Response by poster: Thanks everyone for your contributions. In turn:
Best Answers to bystander and ha~ha because they suggested specific organisations to talk to.
posted by AmbroseChapel at 4:11 PM on April 13, 2008
- This is what lawyers were invented for. It is not what internet question sites were invented for. You're right of course. But, I'm poor! I'll do that if and when I have to. Thanks for your concern.
- don't put this level of detail on the internet when it's a legal matter. It would suck to have the adverse party be able to use any of this against you -- I have somewhat disguised the details, and I don't really see how the post could be used against me, assuming I'm in the right.
- don't focus about trying to get revenge, exposure or retribution -- fair comment. I'll try "get out cleanly" first and maybe save the revenge part to be enjoyed at leisure.
- in NSW you can talk to the department of fair trading -- thanks, that's the state body I referred to who are specifically in charge of this area.
- they are guilty of nothing much. If they read a law one way (even if it provably incorrect) and you read it another, you have a difference of opinion. I find that very hard to accept, can you tell? They don't "read the law" differently to me, they read the law the same as me, and they lie about it. At this point it's like I have a problem with civil society in general. Everyone's allowed to lie and all you can do is call them on the lie and get a lawyer? Ouch. But thanks for the tip about the other agency to complain to.
- misinterpreting the law --- even very brazenly --- is not a crime -- see above. Surely it should be! What burns me up most about this is that it's a government law, designed to protect consumers, that's being abused by commercial operations to exploit consumers; and in a part of town, I might add, where a lot of people have poor English skills. They must be doing this to everyone.
- The A triple C -- thanks, another agency I hadn't considered.
Best Answers to bystander and ha~ha because they suggested specific organisations to talk to.
posted by AmbroseChapel at 4:11 PM on April 13, 2008
Response by poster: The ACCC site says:
posted by AmbroseChapel at 4:40 PM on April 13, 2008
One of the most important protections given to you by the Trade Practices Act is your right not to be misled or deceived. It is illegal for real estate agents to:So, assuming that similar provisions apply to other companies, we are talking about an illegal act. I'll call them and check that assumption.
* intentionally mislead you
* lead you to a wrong conclusion or impression
* give you a false impression
* leave out or hide important information (eg in fine print disclaimers)
* make false or inaccurate claims
posted by AmbroseChapel at 4:40 PM on April 13, 2008
Response by poster: Follow-up to this question -- it turns out that there is an Act governing the conduct of people in this particular industry, the NSW Property, Stock and Business Agents Act 2002, and Section 52 of that act says that it's an offence to induce someone to enter into a contract or arrangement:
So that, it seems, is how the law works, at least for NSW. It's not an offence in the general case, to tell a lie in doing business, but there's an act which governs this particular type of business in which it says "it's an offence to tell lies in this industry". Who knew?
posted by AmbroseChapel at 11:27 PM on June 19, 2008
by any statement, representation or promise that is false, misleading or deceptive or by any concealment of a material factWhich is what I would say is happening here. It's not a new contract, but they're trying to get me to renew an expired contract so I consider it the same thing and will be asking the authorities to investigate and hopefully prosecute them.
So that, it seems, is how the law works, at least for NSW. It's not an offence in the general case, to tell a lie in doing business, but there's an act which governs this particular type of business in which it says "it's an offence to tell lies in this industry". Who knew?
posted by AmbroseChapel at 11:27 PM on June 19, 2008
This thread is closed to new comments.
posted by dersins at 10:36 PM on April 12, 2008