- After sales contract was terminated, $4,500 was released to seller with balance kept by the agent
- Office of Fair Trading handed agents a $942 infringement after investigation
- Agent explored numerous legal avenues before High Court dismissed case
A real estate agent from Sunnybank – a southern suburb of Brisbane – has had their High Court appeal dismissed.
The case began when Prestige & Rich Pty Ltd – trading as Stephanie to Realty – challenged a decision following an investigation by the Office of Fair Trading (OFT).
The OFT began its investigation back in 2017 when a $24,500 deposit from a buyer was not returned following a sales contract termination.
The agent released $4,500 to the property sellers with the remaining $20,000 kept by the agent as a sales ‘commission’.
At the end of the OFT investigation, the agency was handed a $942 infringement notice they refused to pay and instead elected to have the matter heard in court.
The matter was heard in the Holland Park Magistrates Court in December 2018 where the agent was found guilty of failing to pay a disputed amount.
Along with a $5,000 fine, a conviction was recorded.
After the matter was taken to the Queensland Civil and Administrative Tribunal (QCAT), the decision was upheld with the buyer receiving the $24,500 from the Agents Financial Administration Claim Fund, however, the agent disputed to pay this amount back to the OFT.
This resulted in yet another appeal which went to the District Court. This was dismissed in August 2019. Following this, the Supreme Court dismissed the appeal from the District Court decision, saying there was no error of law in the application.
After seeking special leave to appeal the Supreme Court decision, the High Court rejected the request saying there was no error in the decision by the Court of Appeals.
Brian Bauer, OFT’s Executive Director, said the case is a clear example of an 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,”
“We are pleased that the decision has been upheld by the highest court in Australia.”
Brian Bauer, OFT Executive Director
Shannon Fentiman, the Queensland Attorney-General and Minister for Justice, said the case serves as a reminder for agents to be wary of laws and warns they will be held accountable if breaches are found.
“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.”
Shannon Fentiman, Queensland Attorney-General
Stephanie to Realty was contacted, however, no reply was received before the publication of this article.