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The Real Estate Agent (II) - Coggle Diagram
The Real Estate Agent (II)
Misrepresentation
Elements
False statement of fact
Made by the representor to representee
Which was
an
inducing factor
For ENTRY into the contract
At or before contract was entered
(Opinion)
Smith v Land and House Property Corporation
Misleading or deceptive conduct (ACL)
When the ACL bites onto conduct by individual persons
Operations of s 139B, 139C
"In trade or or commerce"
The Deposit
Contract concluded (formed) and
THEN deposit paid
Liability to refund or ability to recover deposit depends on how the agent receives the monies:
as "agent" for the principal
as "stakeholder"
If receipt is by agent:
As agent for their principal,
this discharges the buyer from their obligation
if deposit lost,
seller cant recover again from buyer
buyer can recover from seller
If receipt is by stakeholder:
Agent's authority to receive deposit is derived from contract - standard contract:
agent is only a "stakeholder"
holds for both buyer and seller equally on occurrence of a contingent event
both parties recourse is against the stakeholder, not each other (even if stakeholder insolvent,
Goldring v Federated Ironworkers' Assoc of Aust
)
Investment
Part 2, Div 2, Agents Financial Administration Act, AND cl 2.3, 2.4 REIQ standard Houses and Land contract
2.3 Investment
2.4 Entitlement to deposit and interest
Obligation to Account
Agent must account for deposit to seller after settlement
within 14 days written request OR 42 days of becoming entitled (AFAA,s22(5)
Solicitor
Trusts Account Act 1973 does not apply to stakeholder money under land contracts
Part 3.3 of Legal Profession Act governs disbursement of money from trust account
Deposit would be paid 'in connection with' provision of legal services, and dealt with as trust money
Where a law practice considers a person entitled to the deposit, it may give written notice to all parties that money will be paid on a certain day (at least 60 days after notice) unless proceeding is started disputing entitlement and the practice is advised before the start date.
Or the practice may retain in trust account pending resolution of the dispute or court order