I have just completed reading the case of Zhang and anor vs VP 302 Pty Limited. It is a case that I will talk more about in the future concerning its impact on the real estate industry. In short, the purchasers had bought a property in Green Square for $1,070,000. They paid a deposit of $107,000 and did not complete on the purchase. The purchaser had claimed among other things that the agent had misled them in a number of regards. In particular, they claimed that the agent had misled and deceived them in relation to the potential for the increase in value of property.
The purpose of this newsletter is not to tell you not to mislead and deceive, even though it is a message that you should consider, but to tell you about what protections an agent should put in place. The purchasers made a number of claims about what the agents had said. In the main part, the agent refuted these claims, and said that they had never said anything of the kind. It was the husband and wife purchasers against the single agent.
Justice White indicated that the credibility of the plaintiffs suffered from some of the statements they had made during the court hearing. Justice White was also not happy with the sales representative because of her inability to support her statements. In reading the case, it became apparent that the sales representative’s
recollections were generally accepted as being correct. Except in some crucial points, Justice White believed the sales representative over the purchasers.
It got me thinking regarding how the sales representative could have better defended herself. She had nothing to prove what she had said to the purchasers. She had nothing from that time which could not be altered, that could be used to assist her case.
In our training sessions, Rosy Sullivan and I, together with all our other trainers, have for some time preached about the use of diaries, specifically hardcopy diaries. Leverage has in its own practice altered the practice of using diaries. Leverage has moved from the use of diaries to notebooks, because we believe it gives greater protection. It is a standard notebook that can be obtained from any stationer. It obviously has lines to write on, but does not have a day per page. Our solicitors rule off each day and start the next day with its date and takes continuous notes regarding what has happened over the day. We focus on who we have spoken to, who was there when we spoke to them, the time and what was said.
Notebooks are brilliant in terms of evidence. The police have been using notebooks for decades and the courts are in the habit of accepting police notebooks. What is most important is that notebooks cannot be altered. If you are taking continuous notes, you cannot alter a notebook. Hence, a court will always accept the notes that you made at the time as being honest and accurate of what was being said. Although we were not there when the purchasers were spoken to in the case mentioned above, we do believe that if the sales representative had written notes regarding what she had said, she would have been believed by the courts and would have been exonerated.
Notebooks also have the advantage of keeping a record of every person the agent talks to. It is a great way of setting up a database and will naturally assist the sales process.
This notebook could be your “protection receipt”. We urge you to consider the implementation of a notebook as soon as practical in your agency practice.
Until next time
Bailey Compton and the team at Leverage Australia & The Australian College of Professionals
