Wrong Advice From NSW Office Of Fair Trading

Posted on July 21, 2009 by | 10 Comments
George Rousos

George Rousos Training Consultant

by George Rousos
Industry Training Consultants

Real Estate Encyclopedia

Applications for an ex gratia payment will be quite common in the future, unless the NSW Office Of Fair Trading start looking closely at the relevant provisions of the NSW Property Stock & Business Agents Act 2002Sold?.

An ex gratia payment is made in the exercise of the prerogative power of Government. A payment may be made if a person has suffered a financial loss or other detriment directly as a result of the workings of Government. This detriment must be of a nature which cannot be remedied or compensated through recourse to legal proceedings (or where it is impractical to do so).

After I received a letter of response from Commissioner for Fair Trading Lyn Baker, concerning the placement of SOLD stickers on signage on properties after the conduct of an auction.  I was expecting to receive a legally correct answer, but to my surprise what I stumbled on was nothing but false and misleading.

On Thursday 9th July, here is my response to that letter, which clearly shows, even they don’t know their own laws.

“Hi David,

My name is George Rousos, sometime back you responded to an email I sent to you,  in respect to some of the legal issues at auction. In one of the paragraphs where you had responded to my query on the placement of SOLD stickers on signage on properties after the conduct of an auction. ( as indicated below)

Letter from NSW Office of Fair Trading

A statement is taken to be false or misleading if it is of such a nature that it would reasonably tend to lead to a belief in the existence of a state of affairs that does not in fact exist, whether or not the statement indicates that the state of affairs does exist.

With all due respect, what you are saying here, still contravenes section 51 of the act…

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  • http:// says:

    At last, someone from the agents side!!!!!

    How did you get these 2 clowns to let you put a blog post on this site????

  • Hi Ethical-Agent,

    I would like to make it clear that ANYONE, be they a real estate agent, licensed conveyancer, lawyer or whatever, can write a blog article and have it posted on this blog.

    However, anyone who writes a posting must be prepared to identify themselves, and to take responsibility for what they write (i.e. be prepared to accept criticism and counter-arguments).

    I am very vigilant when it comes to protecting blog contributors, and I will moderate any comments that contain personal attacks or inappropriate material, particularly from anonymous commentators.

    So, if you wish to write something please do so in the knowledge that you will be protected from unfair or personal attacks, and that you have the freedom to express your point of view.

  • real estate says:

    Hello again Peter.

    I think that it’s easy to forget that there are times when you are dealing with Fair Trading that we assume to be speaking with someone very knowledgable, when in fact you may be talking with a glorified clerk with no knowledge of the subject being broached.

    Look at this example which happened to me this past week, but in this case with the ACCC.

    I contacted the ACCC to complain about the fact that I believe the REA is breaking the Trade Practices Act.

    The ACC told me I was likely incorrect or at best that I had an amzingly heavy burden of proof despite the obvious nature of the breach.

    Anyway, here’s the point of my story.

    The fellow at teh ACCC, who was making this determination confided in me that he had never heard of realestate.com.au….yes you heard me right.

    I asked him if he was serious and he said he was. I also asked him if he had ever bought or sold a house and whether he felt qualified to be making the determinations that he was, with so shallow a knowledge base.Let’s just say he paused at that juncture…….

    Andrew Blachut

    Property Now

    Sandy Beach . NSW

  • http:// says:

    Your clown suit is in the mail, George.

    Meanwhile I would have thought that UNDER CONTRACT would sufficently inform interested buyers. Although, in light of the increasing number of back-up contracts I’ve seen recently here in Queensland, some agents may need to order UNDER CONTRACTS stickers

  • http:// says:

    Hi Tim,

    I can’t wait to get my clown suit.

    Either UNDER CONTRACT or SECURED. Some people think under contract refers to the cooling off period, but as you stated on the phone SECURED is a better legal word, but I think people will go with UNDER CONTRACT.


  • http:// says:

    What do you have to do to qualify for the clown-suit?

  • Hi Andrew,

    Interesting how staff at the offices of consumer watch-dogs become all apologetic when asked about how they operate.

    Last December I submitted a complaint to Consumer Affairs Victoria regarding a real estate agent who is alleged to have swapped a page in a contract, so that the contract changed from being subject to finance to being unconditional. When the purchaser complained about it to his lawyer the lawyer said, “Sorry, I can’t act for you any more, because the real estate agent is my wife.”

    Having heard nothing from CAV after 3 months, I again sent the complaint, this time by registered mail, which was confirmed as having been received by CAV.

    After 2 more months of hearing nothing I rang CAV and was told that they operate on a “triage” basis, that very seriouls complaints have to be dealt with first, and that lesser complaints are usually not reached – hence CAV’s failure to even acknowledge having received the complaint.

  • Hi Ethical-Agent,

    You’re the one who came up with the idea of the clown suit as I understand it (Tim O’Dwyer mentioned a clown suit in response to your reference to Tim and myself as “these 2 clowns”).

    To qualify for a coveted “clown suit” you must write a blog posting.  Of course, this means you’ll have to abandon your nom de plume and provide your details and a photograph.

  • Hi Ethical-Agent

    I have always thought that the ‘SOLD’ sticker should cover the actual words ‘AUCTION’ and if it hasn’t sold under the hammer the words ‘Auction’ should be removed and the words ‘For Sale’ should replace it.
    This keeps everything fair and transparent which there should be more off.
    If the property is sold after auction and is subject to conditions then it’s NOT sold but it is under contract and as long as you have for sale on the sign and not auction, in my opinion you can stick that where ever you like.


  • http:// says:

    Hi Nathan,

    The point of the article is to make agents aware that placing SOLD stickers on signs prior to settlement is false and misleading advertisement and is prohibited by law.

    Further to this, if the sale were to fall over prior to settlement for what ever reason being, (e.g a misdescripti

    on on boundary lines of property by the land titles office) and a SOLD sticker had previously been placed on the yard sign at the front of the property, a potential indemnity claim maybe brought against an agent for property taint or for loss of future earnings on the sale of land.

    Use either UNDER CONTRACT OR SECURED and advise the buyer to lodge a caveat on the property, once they have offically entered into an unconditional contract.

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