Estate agent Nicolette van Wijngaarden explains her trust fund fraud
Estate agent Nicolette van Wijngaarden told her pre-sentence hearing last Friday that an unnamed Byron Bay billionaire had pulled out of his proposed bailout of her boutique agency just days before its February 2018 collapse.
Van Wijngaarden has pleaded guilty to trust account fraud, with the Crown saying she misused $3.69 million of client funds from May 2016 to February 2018.
“I stupidly thought I could pay it back,” she told the court. She will be sentenced in Sydney’s Downing Centre District Court in late November, when she faces up to 10 years in jail.
Thinking the cash flow issues were short-term and seasonal, she claimed any lavish expenses, including the cars, flowers and travel were tied to the business.
“I’m completely devastated that I’m sitting here today, horrified that people have been let down,” she said.
Fashion designer Collette Dinnigan was one of van Wijngaarden’s clients who was caught up in the agency’s collapse, with the deposit on the sale of her South Coast property not in the trust fund when the NSW Fair Trading Department stepped in.
Van Wijngaarden told the court she only paid herself $12,000 in commissions in the nine years after founded Unique Estates in 2009.
She was entitled to commission from 94 of the company’s 115 sales over the following years, she told her barrister Frank Coyne.
He said van Wijngaarden had made every effort to address the shortfalls; forgoing commission – she estimates she kept only $12,000 commission over almost nine years – seeking bank loans and equity from investors.
When she could not fix the problem she reported herself to NSW Fair Trading and assisted the authorities. The court also heard the ordeal had ruined her marriage and any lavish expenses were tied to the business.
She told the court the billionaire had backed out of the $4 million bailout after speaking to his solicitor.
The global businessman, who had been a client of the estate agent and then a friend, had also been hesitant as he had been subject to his own issues with the ATO.
The estate agency had a $5 million turnover in its final year, the court was told.
Van Wijngaarden’s is the largest case of real estate trust fraud in NSW history, with victims including property sellers and rental property landlords — who have since received their entitlements from the NSW taxpayer-funded compensation fund.
Her trust account fraud - being an real estate agent - was not as serious breach of trust as that committed by lawyers and accountants, the court heard from her barrister.
Her barrister made a submission to his honour that it was not as "clear cut" as other frauds.
Coyle argued the case “was one of those rare occasions where greed was never the motivation.”
“Greed takes all forms,” Judge John Pickering responded quickly.
"A motivating factor was a continuation of her business … it wasn’t as if there was no benefit to her,” his honour said.
“It’s not the worst form of greed you see in some of these fraud matter but there is still an aspect of self-gratification to it all,” he said, noting there was a certain level of "ego" being the head of a boutique high-end real estate agency.
"It's a complex matter and I do agree it has some unusual features to it as she [Ms van Wijngaarden] isn't the classic single-minded fraudster," said Judge John Pickering in the Sydney district court.
"But when you sell or buy Sydney homes, an extraordinary amount of money is put in the trust of real estate agents and for most people never in their lives would they trust that much money to anyone ... so I wonder why a breach of trust by a solicitor is more serious than a breach of trust by a real estate agent?"
Judge Pickering noted the NSW taxpayers had to pay for the lost funds.
The prosecution noted that every dollar van Wijngaarden took from the trust funds was “a dollar she needn’t have considered spending from her own pocket”.
Ms van Wijngaarden's lawyer said she used trust deposits between 2016 and 2018 to "save" her cash-strapped business and had every intention of repaying the money by raising funds through investors.
Ms van Wijngaarden said she turned herself in, then assisted with investigations and tried to sell the business' assets, including a $1.2 million luxury holiday home rent roll, an act that should reduce her sentence, her lawyer said.
She alleged the administrators scuppered attempt to sell the rent roll, and the sales business, which she through had a $2 million value.
The Crown solicitor said Ms van Wijngaarden had turned herself in only to save herself from being sued by angry buyers whose deposits had disappeared.
She gave evidence that her actions were a desperate attempt not to let staff and clients down.
“I made the very stupid mistake of taking money from the trust but I genuinely felt I was going to be able to put that back,” she told the court. “It was out of pure desperation to not let anyone down,” she later said.
“Everything I’ve ever done I’ve done for other people,” she said.
After she turned to the trust fund in May 2016, she avoided having the business audited.
“When I first did it I knew it wasn’t the right thing to do, but I thought I’d be able to put it back,” she said.
But “it snowballed”.
The prosecution emphasised that the agent knew what was the right thing to do having seen her first business endeavour, a marketing company collapse after her main client failed to pay its account.
