Land and Business (Sale and Conveyancing) Act 1994

This section applies in relation to the sale or purchase of residential land.

An agent must not seek to obtain from the client an amount for expenses that is more than the amount paid or payable for those expenses by the agent. Maximum penalty: Maximum penalty: $20 000.

In determining the amount paid or payable by the agent for expenses, the amount or value of any benefit received or receivable by the agent in respect of the expenses (other than a benefit that is contingent on the happening of an event that has not yet occurred) must be taken into account.

If it is not reasonably possible to determine the amount paid or payable by the agent at the time the agent seeks payment for those expenses from the client, the agent may make an estimate of the amount.

If the client has paid the agent an amount for expenses based on an estimate under subsection (4) and the agent becomes aware that the amount exceeds the actual amount paid or payable for the expenses by the agent, the agent must immediately pay the client the amount of the excess. Maximum penalty: Maximum penalty: $20 000.

If—

an agent—

refers the client to a third person for the provision of services associated with the sale or purchase of the residential land; or

contracts with a third person for the provision of services associated with the sale or purchase of the residential land that will be separately charged for by the agent; and

the agent receives a benefit from the third person as a result of referring the client to the third person or contracting with the third person, the agent must immediately pay the amount or value of the benefit to the client, except to the extent that the agent has accounted for or paid the amount or value of the benefit in accordance with the preceding provisions of this section. Maximum penalty: Maximum penalty: $20 000.

If an agent fails to pay an amount as required under subsection (5) or (6), the client may recover the amount as a debt due to the person by the agent.

This section does not apply in relation to a benefit disclosed—

in a sales agency agreement with the client; or

to the client in accordance with section 24C.

For the purposes of this section—

the value of a non-monetary benefit is to be determined on the basis of a reasonable estimate in dollars of the value of the benefit to the agent; and

if an agent receives a benefit in relation to multiple transactions (whether involving the same or different clients of the agent), the amount or value of the benefit in respect of any 1 of the transactions is to be determined by apportionment between the transactions according to the proportions that the amounts charged to the client or clients in respect of each transaction for the services provided by the third person bear to each other.

In this section—

agent means a purchaser's or vendor's agent;

benefit includes a rebate, discount and refund;

client means the person for whom the agent is or has been acting;

expenses means outgoings or proposed outgoings;

purchaser's agent means—

an agent who is or has been authorised to act on behalf of a purchaser in the purchase of the residential land; or

a sales representative who is or has been acting for that agent;

vendor's agent means—

an agent who is or has been authorised to act on behalf of a vendor in the sale of the residential land; or

a sales representative who is or has been acting for that agent.