Trust Fund

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Alice Gunning, the wife of former Real Estate Institute of NSW president Malcolm Gunning, has been sentenced to a 12-month intensive correction order.
She has also been fined $1,150 after being convicted of four breaches of the Property, Stock and Business Agents Act 2002.
The NSW Fair Trading investigated the former director of Guncom Pty Ltd after it was discovered a Guncom employee had misappropriated rental bond money.
Gunning pleaded guilty to three offences: failing to have her business’ trust account audited, failing to properly supervise staff, and breaching the rules of conduct under the Act. 
She pleaded not guilty to a fourth alleged offence of being knowingly concerned as a director of a company that fraudulently converted $98,800 of trust money. 
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After a two day hearing before Magistrate Hockey at Parramatta Local Court, Gunning was found guilty of the fourth offence. 
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Magistrate Hockey convicted Ms Gunning of each offence and sentenced her to an intensive correction order with conditions, including supervision by Sydney Community Corrections and 150 hours of community service work. 
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Valerie Griswold, NSW Fair Trading executive director, investigations and enforcement, said managing a trust is a serious responsibility and today’s decision sends a strong message to real estate agents. 
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“Monies held in trust are working funds that underpin every real estate business and must be handled in accordance with the applicable legislation,” Griswold said. 
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“A trust is there to protect each party involved in a transaction and the integrity of your business depends on how well you manage your trust.” 
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Ms Gunning’s real estate licence was previously cancelled in February 2018 for a period of four years. 
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In September 2019, Guncom Pty Ltd pleaded guilty to three offences and was subject to a conditional release order for a period of two years. 
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Ms Gunning has the right to appeal. 
 
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Malcolm Gunning's wife Alice convicted after rental money misappropriation

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A former Gold Coast real estate agent has been fined $10,000 and sentenced to a suspended nine months’ imprisonment by the Southport Magistrates Court after charges were brought by the Office of Fair Trading (OFT).
Helen Elizabeth White, owner of My Realty Gold Coast, was found guilty of 13 charges relating to unauthorised use, withdrawal and misappropriation of trust monies.
Helen White was sentenced to nine months’ imprisonment, suspended for three years, and fined $10,000.
Ms White’s husband Graham John White, also a real estate agent who worked at My Realty Gold Coast, was found guilty of two charges of failing to conduct and lodge trust account audits for the business.
Ms White and Mr White were permanently disqualified from obtaining a real estate agent licence or certificate.
The court heard from July 2015 to November 2016, Ms White wrongly converted and mismanaged trust account monies to a total sum of $316,895.70.
The former agent used the money for a range of business and personal expenses, including to purchase a rent roll of fourteen properties.
As part of the investigation, the OFT froze the trust account operated by Ms White on 9 November 2016. However, Ms White continued to operate the business and signed and issued five cheques from the account totalling $16,874.
The OFT served Ms White with a notice of licence suspension in December 2016, prohibiting her from trading as a real estate agent.
In spite of this, Ms White continued to act as a property agent, using Mr White’s licence, until Mr White’s licence was suspended on 4 January 2017.
In sentencing, Magistrate Howden said Ms White had shown disrespect for the law by the significant misuse of trust monies and breach of trust.
Fair Trading Executive Director Brian Bauer said there was no place in the industry for real estate professionals who misappropriated trust money.
“This obvious disregard for consumers and for the law made it clear that Ms White is not fit to retain her licence,” Mr Bauer said.
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Helen White of My Realty Gold Coast found guilty of trust fund misappropriation 

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A former Wiseberry Penrith real estate agent, Christopher Black, has been convicted of trust account fraud.
He misused more than $124,000 after the sale of two homes.
Black also pleaded guilty to failing to keep deposits for the two properties, worth more than $158,000, in a trust account.
Minister for Better Regulation Matt Kean said Black misused the money for personal use. 
“Black had no authority to withdraw money out of the company trust account.” 
Black was sentenced to 18 months imprisonment, to be served by intensive correction order, with a condition that he completes 400 hours of community service and undertakes mental health treatment.
He has the right to lodge an appeal.
Wiseberry Penrith has been under new management since March 2017.
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Former Wiseberry Penrith estate agent convicted of trust fund misappropriation

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A former Brisbane real estate agent has been disqualified from the property industry by the Queensland Civil and Administrative Tribunal (QCAT), following an Office of Fair Trading (OFT) investigation.
Patricia Margaret Harper, former director of residential letting and management business Lonrae Pty Ltd operating ‘The Parc Apartments’ in Brisbane, was found to have misappropriated money received in trust, breaching her obligations as a property agent.
Ms Harper was fined $8,000 and disqualified from working in the property industry for 10 years.
The tribunal heard Lonrae went into receivership in December 2013.
In January 2014, the OFT initiated an investigation into the business after a suspected shortfall in the trust account was reported. The investigation subsequently revealed $49,869 was missing.
From November 2011, Ms Harper falsely receipted rental amounts into trust records for rent purportedly paid, for a unit Lonrae was renting, in effect using other trust money to pay her rent. She had also accepted bond payments in cash from tenants and had failed to deposit the cash into the trust account, as well as failing to pay the bond money to the Residential Tenancies Authority as required.
In its investigation, the OFT noted the trust account records (both electronic and physical) were not kept in an appropriate manner, which contributed to the business’s final state of affairs.
Fair Trading Acting Executive Director Craig Turner said under no circumstances was it proper conduct for a property agent to misuse trust money.
“Agents are held to a high standard and must deal with trust money, including bond money properly. They must only transfer it to the rightfully entitled persons and they must accurately record transactions,” Mr Turner said.
“Anyone in the industry who treats trust money as their personal moneybox will be dealt with by the OFT to the full extent of the law.”
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Brisbane letting agent disqualified after trust fund misappropriation  

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Newport, Sydney real estate agent Michael Raoul Edwards has been sentenced to three years jail for trust fund fraud.
It is the longest term given for the crime in NSW.
He was sentenced in Downing Centre Local Court on Wednesday to three years in jail with a non-parole period of two years.
Edwards, a former director of real estate agency Pittwater Property Management, Barrenjoey Road, Newport, had pleaded guilty to misappropriating about $400,000 in trust funds.
He ran the business for a decade.
Under the Property, Stock &amp; Business Agents Act 2002, real estate licensees must hold clients' funds in a trust account.
NSW Fair Trading's investigations started in 2013.
He has also been disqualification as a director under the act for eight years.
"Dodgy agents are on notice - I'm putting consumers first," Minister for Better Regulation Matt Kean said.
NSW Fair Trading said no trust fund records were found at Pittwater Property Management, trading as Edwards &amp; Orr, but through the reconstruction of the company's business and co-operation from former clients, they established the fraud.
According to his live LinkedIn account, Edwards was an agent with LJ Hooker for eight years from 1996.
He recently founded a real estate agency community online platform called<a href="https://localagentsites.com.au/" target="_blank"> Local Agent Sites</a> last month.
His application for bail was denied with his appeal will be be heard later this year.
The next biggest jail term for trust fund fraud in NSW after Edwards' sentence was a two year jail term for a Pyrmont agent who defrauded more than $800,000 last year, according to NSW Fair Trading.
The next highest was when former agents Phillip Chau, Roger and Gordana Ocvirk and Mark Kolodynski were jailed for 18 month terms after frauds of between $330,000 to $1.4 million.
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Trust Fund

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