High Court throws out Sunnybank real estate agent’s appeal

Published Friday, 12 March, 2021 at 02:54 PM

Attorney-General and Minister for Justice, Minister for Women and Minister for the Prevention of Domestic and Family Violence
The Honourable Shannon Fentiman

A Sunnybank Hills real estate agency that took its appeal all the way to the High Court of Australia has had the matter dismissed.

Prestige & Rich Pty Ltd, which traded as Stephanie To Realty, was challenging a decision made following an Office of Fair Trading (OFT) investigation.

Attorney-General and Minister for Justice Shannon Fentiman said the case was a good reminder to agents to be aware of the laws, and if they are breached, agents can be held accountable.

“The purchase and sale of property are the biggest transactions in most people’s lives,” Ms Fentiman said.

“Queenslanders have the right to expect agents will follow the rules and that they are protected when something goes wrong.

“I would also encourage agents to seek legal advice or call the Office of Fair Trading before paying themselves commission in circumstances which are out of the ordinary.”

In 2017 the OFT commenced an investigation into the agent after it was identified they had not returned a $24,500 deposit to a buyer following the termination of a sales contract.

Rather than return the deposit to the buyer, the agent released $4,500 to the property seller and kept $20,000 for themselves as a sales commission.

At the conclusion of the investigation the OFT issued Prestige & Rich Pty Ltd with a $942 infringement notice. The agent declined to pay the fine and elected to have the matter heard in court.

In December 2018 the matter was heard in the Holland Park Magistrates Court and the agent was found guilty of one count of failing to pay a disputed amount from a trust account and a conviction was recorded. The agent was fined $5,000.

Whilst the court matter was in progress the Queensland Civil and Administrative Tribunal (QCAT) upheld a decision by the OFT to award a payment of $24,500 to the buyer from the AFAA Claim Fund. The agent also disputed their obligation to pay this amount back to the OFT.

The agent then appealed to the District Court. On 20 August 2019 the court dismissed the appeal and the fine was upheld.

Judge Rackemann said the Magistrate, when making their decision, rightly took into account the seriousness of trust account offences and the lack of remorse shown by the agent.

Unwilling to accept this decision the agent took the matter to the Supreme Court. The Supreme Court dismissed the request for appeal on the basis no error of law was outlined in the application.

Rejecting the Supreme Court decision, the agent went to the High Court where they sought special leave to appeal.

The High Court rejected this request saying there was no error in the decision of the Court of Appeal and the application was dismissed.

OFT’s Executive Director Brian Bauer said this was a clear case of the agent doing the wrong thing by a client.

“Fair Trading was determined to ensure the rights of the real estate agent’s clients were upheld and was prepared to defend this case as far as was necessary,” Mr Bauer said.

“We are pleased that the decision has been upheld by the highest court in Australia.”

Information on the obligations of real estate agents in Queensland is available on the OFT website at www.qld.gov.au/fairtrading.



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