Fair Trading

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A director of LJ Hooker Coochiemudlo Island has pleaded guilty in the Brisbane Magistrates Court after the Office of Fair Trading (OFT) brought charges for breaching the Agents Financial Administration Act 2014.
Clifford Ralph Prentis, director of Wayjac Pty Ltd, trading as LJ Hooker Coochiemudlo Island, based in the southern region of Moreton Bay near Brisbane, was fined $2,000 for failing to lodge an audit report within the time limit.
The company was fined $10,000.
No conviction was recorded.
The court heard Prentis carried on business as a real estate agent and operated two trust accounts during the audit period of 1 January 2017 to 31 December 2017.
Under the Act, Prentis was required to have had the trust accounts audited, and the audit reports lodged with the OFT, by 30 April 2018.
The OFT had not received the audit reports.
In sentencing, Magistrate Tina Previtera noted the early guilty pleas and also took into consideration Prentis’ health.
She also noted the agency had previously entered into an undertaking with the OFT to submit audit reports on time, but had failed to do so.
Fair Trading Acting Executive Director Craig Turner said the case served as a reminder to real estate agents of their obligations when it came to the operation of trust accounts.
“Agents who fail to comply with their trust account obligations will incur penalties,” Turner said.
“Agents are able to get assistance from legal or financial professionals or the OFT if they have questions regarding trust accounts.”
Trust account obligations, including a guide for real estate salespeople, are available on <a href="http://www.qld.gov.au/fairtrading" target="_blank">the OFT website</a>.
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LJ Hooker Coochiemudlo Island fails to meet audit obligations: Office of Fair Trading

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Malcolm Gunning, the former president of the Real Estate Institute of NSW and the Real Estate Institute of Australia, will face court next month to answer one charge of being a licensee who contravened the rules of conduct that apply to licensed real estate agents.
NSW Fair Trading has commenced legal proceedings against the former REIA President Malcolm Gunning and his wife Alice Gaye Gunning for the conduct of their real estate business Guncom Pty Ltd ACN 105 217 874 (the Company), which is a Surry Hills based commercial property orientated estate agency that operates in Sydney's southern suburbs.
Mr Gunning told the ABC that both he and his wife would be "vigorously defending" the court proceedings.
Mr Gunning acknowledged that a deficit of as much as $288,000 had appeared in the property management trust fund, but that the money was returned.
Mr Gunning said that the problems resulted in significant changes to how the business was run.
"The whole property management staff were completely replaced," he said.
Mr Gunning faces a potential fine of about $5,000 if convicted, and his case returns to court for a mention on March 7.
Mr Gunning and the company’s matters are next before the Parramatta Local Court on 7 March 2019.
Ms Gunning has been charged with numerous offences including breaching rules of conduct that apply to licensed real estate agents, failing to have trust account records audited and trust account fraud. Ms Gunning’s matter is next before the Parramatta Local Court on 21 March 2019.
His wife, Alice, faces five charges that relate to her conduct between October 2012 to December 2016 as a director of Guncom, the family company that owned their real estate business, Gunning Real Estate.
Fair Trading has accused her of knowingly commissioning a corporate offence by the corporation between October 2012 and June 2016, by fraudulently converting $278,237.29 – that was to be held in trust pending completion of transactions, to the use of her corporation.
She has been charged with one count each of being an agent making use of service provider not as prescribed, failing to properly supervise persons engaged in business, being a licensee who contravened the rule of conduct, failing to cause trust account records to be audited as required and fraudulently converting more than $5000.
Fair Trading alleges Mr Gunning failed to ensure his corporation’s trust was properly maintained and audited prior to December 2016 and that he failed to read the auditor’s reports in February 2017 for the financial years 2013-16 and as such failed to know that the account was in deficit.
It alleges Mrs Gunning was aware the property management trust account was in deficit since about June 2012.
Mr Gunning faces a maximum penalty of $5500 and the case is scheduled for March 7 at Parramatta Local Court. 
Mrs Gunning faces a maximum of 10 years’ jail or a fine of $49,500. Her case will be mentioned at the same court on March 21.
Their first court attendance notice was last December.
Mr Gunning was president of the Real Estate Institute of NSW between 2014 to 2016. He went on to become president of Real Estate Institute of Australia from December 2016 to late 2018.
The couple was first put on notice in a compliance blitz by Fair Trading in February last year., Fairfax Media reported.
The business was fined $3300.
Mr Gunning was reprimanded for breaching the Property, Stock and Business Agents Act.
Following the same blitz, Mrs Gunning’s licence was cancelled.
She was disqualified from holding another for four years.
Gunning's principal Malcolm Gunning has over 30 years experience in real estate agency.
He told the REB industry website that he was not the licensee at the time.
“When I was made aware of it, I immediately took back control of the business.
"I effected those changes including changing all the staff, worked with Fair Trading to make sure all the systems were in place,” he said.
None of the clients of Guncom were disadvantaged, Mr Gunning said, as any shortfall was paid back by him.
“None of our clients were disadvantaged cause any money that at the time was a shortfall was paid back by me,” he said.
“New procedures, new staff, no one’s disadvantaged, but we were fined, and now we’ve got to face not only the press but these other proceedings. Which we are vigorously defending,” he said.
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jchancellor-FAypfDUnLy

Former REI president Malcolm Gunning faces court over trust account irregularities

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A quarrel has erupted between the state’s peak estate agent organisation and the NSW government over the safety of deposits in trust funds following property sales.
The Real Estate Institute of New South Wales has accused the NSW Fair Trading department of “gross negligence” involving the audit requirements of trust accounts following the state’s largest fraud case.
They have demanded a parliamentary inquiry.
The Minister for Innovation and Better Regulation Matt Kean said it was wrong for the REINSW to say there was had been any legislation which had left consumers exposed, adding that the REINSW did not understand its members’ legal obligations.
“Auditors are required to lodge reports where they identify a financial irregularity,” he said.
Estate agents and solicitors must safeguard buyer deposits in trust funds after any property sale.
But in recent times more estate agents have illegally dipped into their client deposits, sometimes to help keep businesses afloat, or meet their gambling addiction or fund a lavish lifestyle.
The state government guarantees the safe keeping of deposits and offers capped compensation.
“Four years ago, Fair Trading made the decision to remove the obligation for real estate agents to lodge their annual trust account audits in what it claimed removed “red tape,” Mr McKibbin said.
“Removing the obligation to lodge the audit with Fair Trading meant Fair Trading no longer had the administrative burden of reading the audit reports.”
It had created the situation of compensations now costing taxpayers “millions of dollars,” Mr McKibbin said.
A Maroubra real estate agent was sentenced earlier this month to an intensive correction order, which will see him perform 400 hours of community service work, after being found guilty of eight trust account withdrawals totalling more than $425,000 over an eight month period in 2014.
The issue flared when victims of a 2018 estate agency collapse initially found they would not be full compensated because the alleged fraud exceeded the maximum compensation offered by the Property Services Compensation Fund, which is funded by the real estate sector through a levy.
A seller was told a missing $560,000 deposit would not be fully compensated as it exceeded the $500,000 maximum compensation, and the 120 other clients who were owed a $3.6 million total found themselves being told they would share the $2 million compensation limit that applied for any one agency collapse.
McKibbon said Fair Trading has subsequently agreed to full compensation after lobbying by the institute.
“We expressed the view that the consumer’s loss in this case was in a large part attributable to Fair Trading and to refuse to compensate them was unconscionable. 
“Pleasingly we have received assurances from Fair Trading that they will now fully compensate.
“But it is the NSW tax payer that has come to the rescue.
“REINSW seeks to work cooperatively and constructively with a competent regulator and minister.
“Sadly neither currently exist,” McKibbin said.
Mr Kean said there were “serious questions over whether the REINSW was fit and proper to provide continuing professional development.”
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REINSW accuse NSW Fair Trading of gross negligence in trust fund bust up

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The Real Estate Institute of New South Wales has accused the NSW Fair Trading department of putting little value on its opinions.
The REINSW chief executive Tim McKibbin has quit the department's industry forum which was established to consult on real estate reform.
McKibbin claimed Fair Trading had a “systemic lack of industry knowledge and misguided beliefs.”
He claimed a real estate reference group established in 2015 by former minister Victor Dominello was "an exercise in futility."
“They put us in a forum; that essentially gave us the impression we were being listened to and we were being worked with,” Mr McKibbin told Domain.
“I feel extremely conned and feel they essentially gave me some colouring-in pencils and told me to sit in the corner.
“We met quite regularly but we did not achieve really anything in three and a half years,” he said.
“[Fair Trading] come to these things with the view that they know what they’re doing and they don’t.
“They got us along and we had minutes and meetings and agendas, and we were completely ignored, so the risk of [now] being outside of the conversation is minuscule in my view.”
REINSW chief executive Tim McKibbin outburst comes <a href="https://www.domain.com.au/news/nsw-renters-set-to-see-biggest-shakeup-of-states-rental-laws-20180920-h15mq6-765151/">less than a week after </a>Innovation and Better Regulation Minister Matt Kean introduced rental reforms into State Parliament, which apparently caught the institute by surprise.
Mr Kean hit back at the criticism, saying he was disappointed with the REINSW’s decision.
“It’s disappointing REINSW have chosen not to provide a voice for their members in this important forum, but I welcome real estate agents to engage directly with NSW Fair Trading.”
Government sources alleged to Domain that the REINSW had been relentlessly trying to undermine Fair Trading so that it was removed as a regulator.
Shadow minister for innovation and better regulation Yasmin Catley was concerned by the move and said the institute’s resignation showed the minister and Fair Trading were not engaging with a key stakeholder effectively.
“If you don’t have the peak body at the table … you won’t deliver the key outcomes for consumers,” she said.
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Conned REINSW surrenders any influence with NSW State Government  

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Real estate disruptor Purplebricks has been fined $20,000 fine by the Queensland Office of Fair Trading.
It was over misleading customers about how it charges its fixed fees in agreements with clients between November 2016 and June 2017 that did not properly disclose the fee terms.
It avoided possible court action after it entered into two enforceable undertakings with the OFT for alleged breaches of the Australian Consumer Law and the Property Occupations Act.
"Between November 2016 and June 2017, Purplebricks Australia Pty Ltd, entered into agreements with consumers who were not made aware of the terms of the fees charged.
"Consumers were also misled about additional services offered by Purplebricks, despite the agency advertising 'low, fixed fees' for their services when selling property," the OFT said.
Purplebricks launched its fixed-fee offering in Australia in September 2016.
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The Queensland consumer watchdog said it had received "several complaints from consumers alleging false and misleading representations on the Purplebricks website and advertising regarding their fees, particularly that the fixed fees were payable regardless of whether a property was sold, or their services were cancelled".
Purplebricks was ordered to pay a penalty of $20,000 and enter into two enforceable undertakings for a three-year period to ensure claims about the agency, its services and its fee structure are not misleading.
The OFT said that Purplebricks has already amended both its advertising as well as its contracts and processes to ensure consumers are fully aware of the fee structure before signing an agreement.
Purplebricks Australia CEO Ryan Dinsdale said Purplebricks had positively collaborated with Queensland OFT.
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<div class="cq-article-content-media section">"Understanding that in many cases traditional real estate agents do not publish their fees and terms of business, our rates are prominently disclosed on our home page and we will always act on feedback to ensure we display everything as clearly as possible.</div>
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"Accordingly we have agreed to make some adjustments to wording to improve clarity and understanding," he said
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Purplebricks fined by Queensland Fair Trading over misleading fees

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Michael Simmons, a former Gold Coast resident letting agent has been banned from the real estate industry for 10 years following an Office of Fair Trading (OFT) investigation.
Simmons was a licensed residential letting agent, collecting rent and holiday income for apartments in Burleigh Heads. 
Michael Joseph Simmons was taken to the Queensland Civil and Administrative Tribunal (QCAT) by the OFT for misappropriating trust money.
He was fined $3,000 after the tribunal heard the investigation began when the OFT was notified Simmons’ trust account was overdrawn.
Shortly after, Mr Simmons abandoned his business and the OFT appointed a receiver over the business’s trust property.
The OFT established Mr Simmons withdrew trust account money he was not entitled to on 29 occasions.
The trust account became overdrawn on four occasions between May and October 2012.
In sentencing, the tribunal considered Mr Simmons lack of remorse, disregard for his obligations as a licensee, and his four previous opportunities to make an early guilty plea.
Fair Trading Executive Director Brian Bauer said behaviour such as Mr Simmons’s would not be tolerated in the real estate industry.
“Stealing from a trust account is an inexcusable act and represents a gross breach of the confidence placed in an agent” Mr Bauer said.
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Burleigh Heads, Gold Coast letting agent banned for 10 years

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A Sydney real estate agent has been found guilty of siphoning $370,000 from trust accounts held by real estate agents Harcourts Northern Beaches and Bevans Wollongong to make bets on sporting matches.
Panania-based property manager Mark Kolodynski has been sentenced to 18-months jail and ordered to repay $100,000 each to the agencies.
A NSW Fair Trading investigation found funds had been diverted to Kolodynski's personal gambling account at the TAB.
He had created fictitious expenses in order to withdraw money from strata accounts as well as funnelling money held in rental bonds and deposits.
Matt Kean, NSW Better Regulation Minister said if you choose to do the wrong thing, Fair Trading will come after you, and you will be prosecuted.
"This result reflects the hard work of Fair Trading's investigators," he said.
Magistrate Tim Keady sentenced him to a minimum non-parole period of 12 months on March 30. He is banned from holding any real estate credentials for 10 years.
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jonathanchancellor-7SQnKwU6yx

Sydney real estate agent found guilty of siphoning funds for betting account

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NSW Fair Trading Commissioner Rod Stowe has issued another public warning not to deal with Christopher Wayne Stanley Boyce, a removalist against whom the commission is taking action based on many complaints of losing, breaking and damaging household goods in transit. 
Boyce has previously traded as Bustamove Removals and now trades as Interstate Relocation Specialist at <a href="https://www.interstaterelocationspecialist.com/" target="_blank">www.interstaterelocationspecialist.com</a>, the note said.
The Commissioner issued a public warning about Boyce and Bustamove Removals in July last year after which Boyce started trading under the unregistered business name Interstate Relocation Specialist.
According to the notice, Boyce’s business practices pose a threat of consumer detriment due to him:
· failing to arrive at all for pick-up after taking a deposit or full payment
· failing to arrive for pick-up on time or within a reasonable time
· losing items and delivering broken and damaged items and furniture
· not providing receipts for payments
· not providing the services the consumer pays for such as an empty truck or a truck with requested dimensions
· not providing contracts or insurance (when requested)
· purporting to include insurance in the services but not obtaining any  
· not providing the accompanying packaging services such as boxes or protective packaging material the consumer pays for
· charging extra for storage and the subsequent delivery of 'stored' items
· requiring payment before accepting to provide a service.
The Commissioner said Boyce habitually has not returned calls, emails or text/SMS messages when consumers tried to contact him.
“Fair Trading takes the view Mr Boyce has breached provisions of the Australian Consumer Law and consumers who deal with him could suffer a significant financial loss,” he said.
“Moving is a stressful enough experience and the last thing consumers need is to suffer the insult of lost and damaged goods and inappropriate trader behaviour.
“Consumers should check internet product and service reviews for traders they are intending to deal with before committing to contracts or payment of any money. They are also advised not to automatically accept the lowest price quoted without further inquiry. In addition, consumers should not feel compelled to purchase based upon undue sales pressure from traders.”
This is also the case if consumers are using trader (removalist) locating or brokering (removalist) services on the internet and those businesses recommend Interstate Relocation Specialist.
NSW Fair Trading has started enforcement action against Boyce and his businesses. 
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Property 101: NSW Fair Trading issues warning against removalist Christopher Wayne Stanley Boyce

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A Penshurst, Sydney real estate agency has come under fire for using a digitally enhanced image (above) that seemingly removed a huge water tower from images that advertise a house for sale.
The 31A Penshurst Avenue, Penshurst offering has a huge water tower looming over the three bedroom property, yet just blue sky in the marketing.
But camera crews from the television stations worked out today that one spot in the front yard allowed photos that didn't contain the vast water tower in the image.
It was all about the mastery of the lens, not digital enhancing.
<img src="/images/2016/02/16/700_penshurst.jpg" alt="">
The marketing had it only <a href="https://www.domain.com.au/31a-penshurst-avenue-penshurst-nsw-2222-2012337653" target="_blank">only visible in a rear garden shot</a> (above).
The aww.com.au was told by the listing agent Jackie Li from Ray White Rockdale that <a href="https://www.google.com.au/search?q=31a+penshurst+avenue+penshurst&amp;espv=2&amp;biw=1440&amp;bih=693&amp;source=lnms&amp;tbm=isch&amp;sa=X&amp;ved=0ahUKEwio17KW1vrKAhWKI5QKHU6aDuEQ_AUIBygC#imgrc=0hrCuxguwoXLCM%3A" target="_blank">he inherited the images</a> of the renovated 1960s home from another agency.
But it seems the agent didn't advise the aww website that no digital photoshopping had been used.
<img src="/images/2016/02/16/yx47sg75k8erchb9fehh1sa45.jpg" alt="">
But he also didn't think they were deceptive or misleading.
“The photos were taken by a previous agent and given to us by the owner, who didn’t want to pay for new images to be taken,” he said.
“The address is available and most people will search for the property on Google maps, where the water tower is very obvious."
<img src="/images/2016/02/16/maps_penshurst.jpg" alt="">
(Pic courtesy of Google Maps)
NSW Fair Trading says under the Property, Stock and Business Agents Act 2002 it is an offence to publish, or allow to be published, any information in relation to the sale or lease of any property that is materially false, misleading or deceptive.
But strategic pics pass muster.
When it was sold for $600,000 in 2010 as a deceased estate, <a href="https://www.domain.com.au/31a-penshurst-avenue-penshurst-nsw-2222-2008228366" target="_blank">the water tower was evident in its marketing</a> (pic below).
<img src="/images/2016/02/16/w800-h533-2008228366_1_pi_150225_075156.jpeg" alt="">
It last sold at $780,000 in 2014.
Property Observer's initial story was based on the premise that there had been prior digital enhancement.
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Water tower missing from Penshurst property marketing

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NSW Fair Trading Commissioner Rod Stowe is warning promoters of property investment schemes across Australia "to operate legally or face sanctions."
Mr Stowe said a common theme was consumers being misled about the financial benefits of buying into a particular scheme.
“Regulators across Australia have initiated court action to stop promoters who promise financial benefits they cannot deliver on or who fail to tell people about their cooling-off rights to get out of a service they were pressured into buying at a ‘free’ seminar,” he said.
<img class="scaledImageFitWidth img" src="https://fbcdn-sphotos-e-a.akamaihd.net/hphotos-ak-xfa1/v/t1.0-9/s480x480/10995568_811488198927700_4622885664525419006_n.jpg?oh=e52c44af6f044ec22fcb98b07d974f4b&amp;oe=5653ECA9&amp;__gda__=1447956603_2edb10507e13315c0aae259a7c4a337d" alt="I Love Real Estate's photo." width="470" height="168">
He noted regulators closely examined the activities of traders between 2013 and 2015 with 20 traders receiving legal notices requiring them to substantiate claims made in advertisements and at their seminars.
"This prompted legal action against at least 10 entities and their associates:
<ul>
<li>No Loan Home Pty Ltd trading as Perth’s Easyhomes WA, Filip Butkovic, Nikola Butkovic, Patricia Susilo, Bryan Susilo and Rowan Lines, led by Consumer Protection Western Australia</li>
<li>We Buy Houses Pty Ltd and its director Rick Otton, led by the Australian Competition and Consumer Commission as a result of a coordinated investigation with NSW Fair Trading</li>
<li>Benjamin David Chislett, Creative Property Australia Pty Ltd and Benny Bull Pty Ltd led by Consumer Affairs Victoria."</li>
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"In addition, legally-enforceable undertakings were given to regulators by seven traders including Rick Otton and Dymphna Boholt who promised they would modify their behaviour, including changing their advertising and to stop making misrepresentations."
Queensland Fair Trading regulators recently secured the undertaking from the Sunshine Coast-based Dymphna Boholt who was handed a $15,000 penalty and an enforceable undertaking "not to engage in conduct that is liable to mislead the public or any individual within Australian in contravention of Australian Consumer Law (Queensland)''.
Fair Trading investigators found that Boholt made numerous claims in full-page newspaper advertisements promoting her 2013 seminars - and later at the seminars - which were found to be inaccurate.
<div class="uiScaledImageContainer"><img class="scaledImageFitWidth img" src="https://fbcdn-sphotos-e-a.akamaihd.net/hphotos-ak-xpf1/v/t1.0-9/s851x315/11012618_856746371068549_433386019905026974_n.jpg?oh=8f10c7aff10ffef6a24f8aa4c29c2bf3&amp;oe=5651A160&amp;__gda__=1443774695_3282f0b33348c27ce8f823ac676ea220" alt="'The I Love Real Estate Super Conference 2015 is on! and it's bigger than we've ever had before.'" width="470" height="315"></div>
The breaches of the ACL(Q) were outlined in a nine-page document published by Fair Trading suggesting claims made by Boholt in seminar presentations at the Brisbane Convention &amp; Exhibition Centre in August 2013 over stated the level of income earned by the property investors in several instances as Boholt "failed to undertake due diligence" to ensure the investor claims were accurate.
A total of 67 education/warning letters were also issued across Australia.
“We are sending the message to the industry that they have to act fairly with consumers or face action by consumer law regulators using the Australian Consumer Law,” the commissioner said.
“Failure to do so will render the promoter liable for civil and criminal penalties, in some instances up to $1.1 million for a corporation and $220,000 for an individual.”
Before buying an investment property from a property promoter, consumers should conduct their own research and always obtain independent financial and legal advice.
Stowe said consumers should also be wary of:
<ul>
<li>high pressure sales tactics characterised by rushed decision making and contract signing and the payment of fees (including discounts offered to seminar attendees who sign up on the day)</li>
<li>inferences that a system is ‘government approved’</li>
<li>claims of capital growth rates that may not be independent or credible</li>
<li>spruikers who don’t allow questions or who ignore or downplay the risks and costs involved</li>
<li>spruikers who suggest specific investment opportunities such as a particular property development, as they may be receiving a commission or have an undisclosed interest in it</li>
<li>spruikers pushing people to buy properties interstate that cannot be seen, or off the plan properties that do not yet exist</li>
<li>spruikers requiring participants to sign non-disclosure agreements</li>
</ul>
 
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