16 January 2023

As an agent, being granted the authority to hold a client’s money in trust is not a privilege most take lightly. The Joondalup Magistrates Court of Western Australia has issued a former real estate agent and their company $6,500 in fines for breaching trust account obligations under the Real Estate and Business Agents Act 1978, reiterating the importance of the standards agents are expected to meet concerning the management of clients’ funds.

While the offending former agent’s actions did not result in any financial loss for the clients, the court clarified that the careless act of making unauthorised withdrawals on at least six occasions carried a significant risk to the clients at the time.

WA Consumer Protection reports on the issue as follows:

Unauthorised real estate trust account withdrawals result in fines (Mohammad Merzaie / Challenge Real Estate / Swift SM Pty Ltd)

• Real estate agent and his company fined a total of $6,500

• Multiple unauthorised withdrawals from trust account over four months

• The money of the agency’s clients put at risk by violations of the law

A Magistrate has told a former real estate agent that his clients’ money was put at risk by multiple unauthorised withdrawals from his agency’s trust account.

Mohammad Samir Merzaie was fined $2,500 by the Joondalup Magistrates Court on 6 January 2023. He was Director of Swift SM Pty Ltd, trading as Challenge Real Estate of Malaga, with the company being fined $4,000 for also breaching the Real Estate and Business Agents Act. Both were ordered to pay costs of $319 each.

Mr Merzaie was the sole signatory to the agency’s trust account and, between December 2019 and April 2020, had made unauthorised withdrawals on at least six occasions.

At the time of the offending, Mr Merzaie was a licensed real estate agent. His agency Challenge Real Estate ceased to operate in September 2020.

In handing down the penalty, Magistrate Harries said the unauthorised withdrawals were a breach of trust. Her Honour acknowledged, while there was no financial losses caused by Mr Merzaie’s actions, they had the potential to have a significant impact.

Commissioner for Consumer Protection Trish Blake said such illegal actions by an agent put the money of home buyers and sellers at serious risk.

“Providing safeguards and protections are the main reasons for having laws that strictly control the transfer and use of funds belonging to people involved in a real estate transaction,” Ms Blake said.

“For a licensed real estate agent or their staff to use trust account funds for other purposes is not only illegal, but a betrayal that undermines the integrity of the system and confidence in the industry.

“That’s why there are laws that control the handling of funds during a real estate sales process and all agents need to strictly adhere to those laws, without exception, otherwise face the consequences.”

More information on the obligations of real estate agents, sales representatives and property managers is available on the Consumer Protection website or enquiries can be made by email consumer@dmirs.wa.gov.au or by calling 1300 30 40 54.