Sequel To “Gazumping” Posting
OPINIONby Peter Mericka B.A., LL.B
Real Estate Consumer Advocate
Real Estate Lawyer
Qualified Practising Conveyancer Victoria
Director Lawyers Real Estate Pty Ltd
Since our posting about the “Ian Reid” strategy (see our posting of 14 July, 2006), some interesting questions have emerged.
In a letter to us dated 3 August, 2006, an obviously annoyed Ian Reid stated,
“…The vendor’s solicitor (who has been practicing law for 50 years) is aware you misrepresent on your website that the vendor in this matter was represented by a non-lawyer conveyancer and cannot provide his client with legal advice.”
Now who would have conveyed this to the vendor’s lawyer? We can only guess. Not that it was such a big deal, as the posting did not identify the person who prepared the contract, or the property concerned. In fact the only parties identified in the posting were Ian Reid and Ben Reid.
Now here is where it becomes really interesting, because the law firm of Ryan, Mackey & McClelland Barristers & Solicitors also wrote to us, echoed the estate agent’s complaint, and identified itself as having represented the vendors!
On 11 August, 2006 we received a letter from Ryan, Mackey & McClelland Barristers and Solicitors of 65 Main Street, Greensborough. The letter stated,
“We have…received a copy of an e-mail purporting to come from your office wherein it states in part ‘In this case the estate agent lawyer conveyancer who cannot provide his client with legal advice.’…The writer (the letter was signed J.V. Mackey) is concerned as to the clear misrepresentation made and as to whom it may have been propagated. The Vendors in this instance were clearly represented by a practising solicitor. In the circumstances, the remark should not have been made. It could be deemed to be defamatory. We insist upon receiving a retraction of this statement with the confirmation that this retraction has been given to any person to whom this representation has been made within 7 days of the date hereof.”
From whom would the solicitor have received the copy of the e-mail? We can only guess.
It is now clear to us that a mistake was made in the posting of 14 July, 2006. The vendor of the property concerned was in fact represented by a “practising solicitor”, and clearly the vendor’s solicitor was in a position to provide legal advice to the vendor.
But this just raises further questions. If the vendor was represented by a practising solicitor, and that practising solicitor was in a position to provide the vendor with legal advice, did the practising solicitor actually give the vendor legal advice?
We wrote to Ryan, Mackey & McClelland Barristers & Solicitors, and asked them:
1. Was the law firm of Ryan, Mackey & McClelland Barristers & Solicitors aware of the estate agent’s gazumping condition?
2. Did the law firm of Ryan, Mackey & McClelland Barristers & Solicitors draft, or assist in the drafting of the estate agent’s gazumping clause?
3. Did the law firm of Ryan, Mackey & McClelland Barristers & Solicitors advise the vendor on the use of the estate agent’s gazumping clause?
4. Did the law firm of Ryan, Mackey & McClelland Barristers & Solicitors advise the estate agent on the use of the gazumping clause?
5. Does the law firm of Ryan, Mackey & McClelland Barristers & Solicitors regard the use of the gazumping clause as fair and ethical?
We requested a prompt response from Ryan, Mackey & McClelland Barristers & Solicitors, so that we could correct our posting within the 7 days specified in their letter.
In a letter dated 16 August, 2006 we were told by Ryan, Mackey & McClelland:
“We will not be involved in any publicised statements through your website and specifically do not authorise you to use our firm name in relation thereto.”
Are we likely to get answers to the questions we asked? We’re still waiting.
To post your comment on this item, please return to
