Property 101: BresicWhitney underquoting law to come to NSW Parliament this week

The NSW government will amend underquoting laws to cover not only employees of real estate agencies but their representatives, independent contractors, subsidiaries or any related entities who act for them.

The amendments will widen the net to prevent illegal underquoting after Sydney agency BresicWhitney escaped allegations after a loophole deemed that two of its agents were not "employees" as required under the current act.

The changes were introduced in the NSW Parliament today.

In 2015, the NSW Fair Trading took BresicWhitney to court alleging it "falsely understated the likely selling price of residential property to consumers" through its two agents Nic Krasnostein and Walter Burfitt-Williams.

BresicWhitney's defence that they were not employed by BresicWhitney but by a subsidiary company, BWEA Employees Pty Ltd, was accepted by the courts.

The Magistrate accepted this defence and all charges were dismissed due to a legal technicality based on a statutory interpretation of ‘employee’ in the Act and the fact that there is no deeming provision in the Act for vicarious criminal liability.

"These changes will close a corporate loophole that has allowed agents to escape liability under the Act, and will provide consumers with additional protection," Minister for Innovation and Better Regulation Victor Dominello said.

"Underquoting is illegal, misleads prospective buyers and undermines the property market."

“These changes will close a corporate loophole that has allowed agents to escape liability under the Act, and will provide consumers with additional protection.”

Since the new underquoting laws came into effect in January, the practice of price baiting including the use of inducements such as "offers above" and "offers over" had declined, the government suggested.

But illegal off-market open for inspections without contracts have been on the rise.