Former REI president Malcolm Gunning faces court over trust account irregularities

Malcolm Gunning, the former president of the Real Estate Institute of NSW and the Real Estate Institute of Australia, will face court next month to answer one charge of being a licensee who contravened the rules of conduct that apply to licensed real estate agents.

NSW Fair Trading has commenced legal proceedings against the former REIA President Malcolm Gunning and his wife Alice Gaye Gunning for the conduct of their real estate business Guncom Pty Ltd ACN 105 217 874 (the Company), which is a Surry Hills based commercial property orientated estate agency that operates in Sydney's southern suburbs.

Mr Gunning told the ABC that both he and his wife would be "vigorously defending" the court proceedings.

Mr Gunning acknowledged that a deficit of as much as $288,000 had appeared in the property management trust fund, but that the money was returned.

Mr Gunning said that the problems resulted in significant changes to how the business was run.

"The whole property management staff were completely replaced," he said.

Mr Gunning faces a potential fine of about $5,000 if convicted, and his case returns to court for a mention on March 7.

Mr Gunning and the company’s matters are next before the Parramatta Local Court on 7 March 2019.

Ms Gunning has been charged with numerous offences including breaching rules of conduct that apply to licensed real estate agents, failing to have trust account records audited and trust account fraud. Ms Gunning’s matter is next before the Parramatta Local Court on 21 March 2019.

His wife, Alice, faces five charges that relate to her conduct between October 2012 to December 2016 as a director of Guncom, the family company that owned their real estate business, Gunning Real Estate.

Fair Trading has accused her of knowingly commissioning a corporate offence by the corporation between October 2012 and June 2016, by fraudulently converting $278,237.29 – that was to be held in trust pending completion of transactions, to the use of her corporation.

She has been charged with one count each of being an agent making use of service provider not as prescribed, failing to properly supervise persons engaged in business, being a licensee who contravened the rule of conduct, failing to cause trust account records to be audited as required and fraudulently converting more than $5000.

Fair Trading alleges Mr Gunning failed to ensure his corporation’s trust was properly maintained and audited prior to December 2016 and that he failed to read the auditor’s reports in February 2017 for the financial years 2013-16 and as such failed to know that the account was in deficit.

It alleges Mrs Gunning was aware the property management trust account was in deficit since about June 2012.

Mr Gunning faces a maximum penalty of $5500 and the case is scheduled for March 7 at Parramatta Local Court. 

Mrs Gunning faces a maximum of 10 years’ jail or a fine of $49,500. Her case will be mentioned at the same court on March 21.

Their first court attendance notice was last December.

Mr Gunning was president of the Real Estate Institute of NSW between 2014 to 2016. He went on to become president of Real Estate Institute of Australia from December 2016 to late 2018.

The couple was first put on notice in a compliance blitz by Fair Trading in February last year., Fairfax Media reported.

The business was fined $3300.

Mr Gunning was reprimanded for breaching the Property, Stock and Business Agents Act.

Following the same blitz, Mrs Gunning’s licence was cancelled.

She was disqualified from holding another for four years.

Gunning's principal Malcolm Gunning has over 30 years experience in real estate agency.

He told the REB industry website that he was not the licensee at the time.

“When I was made aware of it, I immediately took back control of the business.

"I effected those changes including changing all the staff, worked with Fair Trading to make sure all the systems were in place,” he said.

None of the clients of Guncom were disadvantaged, Mr Gunning said, as any shortfall was paid back by him.

“None of our clients were disadvantaged cause any money that at the time was a shortfall was paid back by me,” he said.

“New procedures, new staff, no one’s disadvantaged, but we were fined, and now we’ve got to face not only the press but these other proceedings. Which we are vigorously defending,” he said.