What are the penalties for breaching any of the rules of conduct in real estate

It has never been more important for real estate agents in Western Australia to ensure that they have appropriate procedures and trust accounting safeguards in place.

The changes to the Act are a part of a suite of tougher consumer protection measures, which have been introduced into various legislation pursuant to the Consumer Protection Legislation Amendment Act 2019 (WA). Many of the amendments to the Act are also reflected in corresponding changes to the Settlement Agents Act 1981 (WA). Other amendments have also been made to the Auction Sales Act 1973 (WA) and Residential Tenancies Act 1987 (WA), among others. 

We can assist agencies and developers by conducting a sample audit of their existing sales and property management business practices, and by documenting and supporting the implementation of clear, user friendly internal policies and procedures, which can substantially reduce the risk of such penalties being incurred in the future.

In Western Australia, all real estate and business agents have an obligation under the Real Estate and Business Agents Act 1978  to comply with the obligations set out in the Real Estate and Business Agents and Sales Representatives Code of Conduct 2016 at all times.

The primary duties imposed on agents and sales representatives by the Code of Conduct are:

• To act in good faith and exercise due skill, care and diligence (Section 6);
• To act in the best interests of their clients (Section 5);
• To be honest in their dealings with all persons involved in a transaction (Section 7); and
• To act in accordance with the client’s reasonable instructions (Section 10(b)).

What if my agent breaches these duties?

If a real estate or business agent breaches any of their duties or obligations under the legislation, the aggrieved person may make an application to the State Administrative Tribunal. Under Section 103(1) of the Act, the State Administrative Tribunal has the power to:

• Reprimand or caution the agent;
• Impose a fine not exceeding $10,000; or
• Suspend or cancel an agent’s licence and any triennial certificate in respect thereof and in addition, disqualify the agent either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the Tribunal.

Alternatively, under Section 103(3), in a matter concerning the discipline of a sales representative the Tribunal may:

• Reprimand or caution the sales representative;
• Impose a fine not exceeding $3,000; or
• Suspend or cancel the agent’s registration and, in addition, disqualify him either temporarily or permanently, or until the fulfilment of any condition which may be imposed by the Tribunal, from being registered.

In respect to the possibility of a licensee to have their licence and triennial certificate cancelled, a licensee must commit an offence involving:

• Defalcation by the licensee; or
• The fraudulent rendering of an account, knowing it to be false in any material particular, in respect of money or other property entrusted to him by or on behalf of another person in the course of the licensee’s business; or
• a breach of any one or more of the provisions of Part VI relating to the proper payment in and out of the trust account of the licensee of money entrusted to him by or on behalf of another person in the course of the licensee’s business, his licence and any triennial certificate in respect thereof is thereby cancelled, and the registrar of the court convicting him shall forthwith notify the Commissioner accordingly.

Some real-life examples

Below are some examples of penalties imposed for breaches committed by real estate and business agents in Western Australia.

Real estate agent barred from registering for 15 years

In 2017, Paul King was sanctioned for 13 breaches of the Code of Conduct relating to the sale of 5 lots of rural land between 2008 and 2010 while King was working for his father’s real estate agency. Mr King had sold the properties to an intermediary company controlled by his brother, Michael King, who was not a licenced real estate agent or sales representative. The properties were then sold to Malaysian investors at substantially higher prices, with more than $5 million profit going to Mr King.

This was in direct breach of Mr King’s obligation to act in the best interests of his client. Mr King was barred from registering as a real estate agent for 15 years and he and his father were fined $39,000 in total.

$5,000 fine for breaches of the Real Estate and Business Agents Act and Code of Conduct

In 2016, Caputo & Clay Pty Ltd trading as Harcourts Integrity Maylands was fined $5,000 for breaches of the Code of Conduct relating to various accounting failures. These allegations related to the withdrawal of trust funds without prior authorisation and failure to maintain proper records of transactions. Among other things, the Tribunal found that Harcourts Integrity had failed to exercise due skill, care and diligence.

Real estate agent suspended for 18 months and fined $3,000

In the case of Johnson v Sheppard, heard by the Western Australian Supreme Court in 2005, Mr Johnson was found to have failed to exercise due skill, care and diligence in effecting a misdirection of rental monies. This accounting failure resulted in the agent being suspended from practice for 18 months and fined $3,000. Mr Johnson appealed this decision, but the appeal was dismissed.

How can we help?

If you believe that your real estate agent or business agent is in breach of their obligations under the Real Estate and Business Agents Act or the Code of Conduct, GTC Lawyers can assist you to try to resolve these issues with the agent. If no mutually agreeable solution can be reached, GTC Lawyers can help you make an application to the State Administrative Tribunal for adjudication of the matter.

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