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Agency fined for illegally obtaining a sales commission

19 December 2018

Sunnybank Hills real estate agency Prestige & Rich Pty Ltd, trading as Stephanie To Realty, was yesterday fined $5,000 by the Holland Park Magistrates Court.

The Office of Fair Trading (OFT) alleged that Ms Stephanie To, the sole director and principal licensee of the agency did not return a deposit to a buyer from a failed sales contract, retaining a $20,000 sales commission which she was not entitled to.

The court heard that Stephanie To Realty was appointed the selling agent for the sale of a Sunnybank Hills property. A buyer entered into a contract to purchase the property but the contract was later terminated because the buyer could not obtain suitable finance.

The buyer requested Stephanie To Realty return the $24,500 deposit they had paid, as allowed for under the contract. The property seller also agreed that the deposit should be returned to the buyer.

However, in contravention of the Agents Financial Administration Act 2014 (AFAA),Stephanie To Realty did not release the funds from its trust account to the buyer and instead released the deposit to the seller minus a $20,000 sales commission payment to the agency.

The OFT issued an infringement notice to the agency, however, Ms To elected to have the matter heard in court.

The court found Stephanie To Realty guilty of one count of failing to pay a disputed amount from a trust account and a conviction was recorded.

Magistrate Robert Turra said that the defendant ignored advice and direction to benefit the agency and stubbornly insisted on the defendant’s own definition of the law.

Also yesterday, the Queensland Civil and Administrative Tribunal (QCAT) upheld the OFT’s decision to award a $24,500 payment from the AFAA claim fund to the buyer, dismissing a review lodged by Stephanie To Realty.

QCAT confirmed the OFT’s decision to award the claim fund payment as compensation for the misappropriated deposit was appropriate.

The amount of $24,500 will be recovered from Stephanie To Realty to repay the AFAA fund.

Fair Trading Executive Director Brian Bauer said real estate agents regularly dealt with large sums of money and needed to act with integrity to have a position of trust in the community.

“Agents not dealing with consumers’ money in accordance with the law will be held accountable by the OFT,” Mr Bauer said.

“The purchase and sale of properties are the biggest transactions in most people’s lives, and Queenslanders need to know agents will follow the rules.”

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