Unique Estates Australia Pty Ltd ACN (the Company) Circular to Property Owners. 16 February 2018

Transcription

1 Unique Estates Australia Pty Ltd ACN (the Company) Circular to Property Owners 16 February 2018 We advise that Barry Kogan and Matt Fehon of McGrathNicol together with Matt Meynell from Colliers International were appointed Joint Managers of the Company pursuant to Section 126 and Section 127 of the Property, Stock and Business Agents Act 2002 (the PSBA Act) by NSW Fair Trading on 13 February Background The Joint Managers have assumed control of the Company s affairs and have entered into possession of its assets. There are insufficient funds to continue trading on the Company s operations. Accordingly we regret to advise that the Company is no longer able to assist you in managing your property. Following our appointment we have taken control of the Company s trust account and are working through reconciling amounts owed to third parties. Current Position Please note that given the circumstances, you should take immediate steps to secure your property including liaising with any tenants currently residing there. Please note that we are in the process of reconciling the Company s trust account to determine monies outstanding to property owners. Regrettably there are insufficient funds to pay amounts outstanding and in these circumstances there is a statutory compensation fund that may cover your outstanding claims. A copy of the information sheets, Property Services Compensation Fund claim form B and notes (for NSW) and Victorian Property Fund, Compensation claims - property (for VIC), are attached for your guidance. We note that the Company is not currently in Voluntary Administration, Receivership or Liquidation. This may occur in the future and you will be advised accordingly. For the avoidance of doubt, please note the Joint Managers do not adopt any agreements with you and accept no responsibility for any liabilities in connection with your property. We appreciate your co-operation at this difficult time. We will be in further contact with you as matters progress UNIQUE-Circular to property owners-cl

2 If you have any queries, please contact Calypso Lowrey of my staff by Yours faithfully Unique Estates Australia Pty Ltd Barry Kogan Joint Manager Matt Fehon Joint Manager Enclosures: NSW Fair Trading Property Services Compensation Fund claim form B and notes Consumer Affairs Victoria Victorian Property Fund, Compensation claims property Page 2

3 GUIDE TO MAKING A CLAIM AGAINST THE PROPERTY SERVICES COMPENSATION FUND UNDER SECTION 173(2) OF THE PROPERTY, STOCK AND BUSINESS AGENTS ACT 2002 Introduction A claim against the Property Services Compensation Fund ( the Compensation Fund ) may be made by a person ( the Claimant ) if the claim involves each of the following: a. the Claimant has suffered a pecuniary loss; b. because of a failure to account; c. by a licensee for money or other valuable property; d. entrusted to the licensee (or an associate of the licensee); e. in the course of the carrying on of the licensee s business as a licensee. A pecuniary loss may include: a. the value of the money or other valuable property misappropriated by the licensee; b. costs, charges and expenses that the Claimant has suffered or incurred as a direct consequence of the failure to account (including the legal costs and disbursements of making and proving a claim); and c. interest on the money or other valuable property that the Claimant would have received but for the licensee s failure to account. A failure to account is a reference to a failure by a licensee to account for money or other valuable property entrusted to the licensee (or an associate of the licensee) in the course of the carrying on of the licensee s business as a licensee. A licensee means the holder of a licence under the: a. Property, Stock and Business Agents Act 2002; or b. Conveyancers Licensing Act A claim against the Compensation Fund may also be made in circumstances where the Claimant entrusts money or other valuable property to another person reasonably believing that: a. the other person is a licensee or an associate of a licensee (under the Property, Stock and Business Agents Act 2002 or Conveyancers Licensing Act 2003); and b. the money or other valuable property was entrusted in the course of the carrying on of the other person s business as a licensee. A licensee cannot make a claim against the Compensation Fund for any pecuniary loss suffered in connection with the licensee s business as a licensee because of a failure to account. The Commissioner for Fair Trading maintains the Compensation Fund.

4 How long do I have to make a claim? A claim against the Compensation Fund must be made within whichever of the following periods ends first: a. 1 year after the Claimant has become aware of the failure to account; or b. 2 years after the date of the failure to account. However, a claim caused by the failure of a licensee (or an employee or agent of a licensee) to lodge a rental bond with the Rental Bond Board may also be made at any time within 1 year after the termination of the tenancy agreement. If NSW Fair Trading receives a claim from a person outside of the applicable period, the person will be advised that the claim cannot be made. How much can I claim? The maximum amount that a Claimant may recover from the Compensation Fund is currently $500,000. The amount of the Claimant s pecuniary loss may be reduced by any fees and charges that the licensee could have imposed in the circumstances including, for example, sales commissions or property management fees. In some cases, a claim may be disallowed to the extent that pecuniary loss was suffered as a result of a failure to mitigate loss or was occasioned by unreasonable delay in making a claim. How do I make a claim? A claim against the Compensation Fund must be made in writing. A claim may be made by: completing the appropriate claim form prepared by NSW Fair Trading; and sending it, together with all relevant documents in support of the claim, to: NSW Fair Trading (Attention: Compensation Funds Unit) PO Box 972 PARRAMATTA NSW 2124 Which claim form do I use? Claim Form A may be used for most claims except claims caused by the failure of a licensee (or an employee or agent of a licensee) to lodge a rental bond with the Rental Bond Board. Claim Form B Please use this claim form if the claim was caused by the failure of a licensee (or an employee or agent of a licensee) to lodge a rental bond with the Rental Bond Board. What other documents do I need to attach to my claim form? The Claimant must provide copies of all relevant documents in support of a claim. The relevant documents to be attached to, and lodged with, the claim form will vary according to the type of claim being made. Examples of the documents that should be lodged with the claim form, according to the type of claim being made, are shown on the next page. The examples shown on the next page are not intended to be a complete list of the types of claims that may be made against the Compensation Fund or a complete list of the documents that might be relevant to support any particular claim. In each case, the Claimant must provide sufficient documentation to demonstrate that the Claimant has suffered a loss as a result of the licensee s failure to account for money or other valuable property entrusted to the licensee and that the Claimant is entitled to the amount being claimed against the Compensation Fund.

5 Examples of relevant documents in support of a claim A claim by a landlord caused by the failure of a licensee to lodge a rental bond with the Rental Bond Board: the managing agency agreement the lease or tenancy agreement receipts, statements, tax invoices or correspondence issued by the licensee (or other written confirmation) showing that the rental bond was paid to the licensee correspondence or other documents showing that the tenancy agreement has ended and that the landlord is entitled to all or part of the rental bond paid to the licensee A claim by a tenant caused by the failure of a licensee to lodge a rental bond with the Rental Bond Board: the lease or tenancy agreement receipts, statements, tax invoices or correspondence issued by the licensee (or other written confirmation) showing that the rental bond was paid to the licensee correspondence or other documents showing that the tenancy agreement has ended and that the tenant is entitled to all or part of the rental bond paid to the licensee A claim by a landlord caused by a licensee s failure to account for rent paid by a tenant the managing agency agreement the lease or tenancy agreement receipts, statements, tax invoices or correspondence issued by the licensee (or other written confirmation) showing that the rent was paid to the licensee correspondence or other documents showing that the rent paid to the licensee has not been forwarded to the landlord A claim by a vendor of real estate caused by a licensee s failure to account for the deposit paid by the purchaser on exchange of contracts the agency agreement the contract for the sale of land receipts, statements, tax invoices or correspondence issued by the licensee (or other written confirmation) showing that the deposit was paid to the licensee correspondence or other documents showing that the contract has been completed or terminated (as applicable) and that the vendor is entitled to the deposit copies of all written authorities, directions or instructions (or order on the agent) given to the licensee to account to the vendor for the deposit A claim by a purchaser of real estate caused by a licensee s failure to account for the deposit paid by the purchaser on exchange of contracts the contract for the sale of land receipts, statements, tax invoices or correspondence issued by the licensee (or other written confirmation) showing that the deposit was paid to the licensee correspondence or other documents showing that the contract has been terminated and that the purchaser is entitled to the deposit copies of all written communications given to the licensee to account to the purchaser for the deposit A claim by an Owners Corporation caused by a licensee s failure to account for strata levies paid by individual lot owners lot owners bank statements showing strata levies paid to the licensee receipts, statements, tax invoices or correspondence issued by the licensee showing strata levies paid to the licensee annual audit or bank statements confirming that strata levies paid to the licensee were not credited to the account of the Owners Corporation For further information about claims that may be made against the Compensation Fund, or the relevant documents to be provided in support of a claim, please contact Fair Trading on

6 CLAIM FORM B Property Services Compensation Fund Notes: 1. This form may be used to make a claim against the Property Services Compensation Fund if the claim has been caused by a failure of a licensee (or an employee or agent of the licensee) to lodge a rental bond with the Rental Bond Board. Otherwise, please use Claim Form A. 2. This form should be completed by the person making the claim ( the Claimant ) or by a person authorised to make the claim on behalf of the Claimant. Claimant s Full Name (or Company Name and ACN) Claimant s Address (for correspondence) CLAIMANT S DETAILS Claimant s Contact Details (by telephone) Home: Work: Mobile: Claimant s Address LICENSEE S DETAILS Licensee s Full Name (or Company Name and ACN) Licensee s Business Address Licensee s Contact Details Telephone No.: Address: Licensee s Licence No. (if known) TENANCY AGREEMENT DETAILS Landlord s Full Name(s) (or Company Name and ACN) Tenant s Full Names(s) (or Company Name and ACN) Address of Rented Premises Date Tenancy Commenced Date Tenancy Terminated

7 STATUTORY DECLARATION Oaths Act 1900 I,. (Insert the full name of the person making this declaration.) of (Insert the address of the person making this declaration.) do solemnly and sincerely declare that: 1. *I am the Claimant OR *I am authorised to make this claim on behalf of the Claimant. (* Please cross out the text above that does not apply.) 2. The Claimant s claim has been caused by a failure of the licensee (or an employee or agent of the licensee) to lodge a rental bond with the Rental Bond Board. Further information concerning the licensee s failure to lodge the rental bond with the Rental Bond Board is as follows: (Please provide as much information as possible attach additional pages if there is insufficient space below.) a. On what date was the rental bond paid to the licensee? b. What was the amount of the rental bond that was paid to the licensee? c. Did the Claimant give the licensee permission to use the rental bond for another purpose? If Yes, please provide details of the permission given to the licensee to use the rental bond for another purpose. Yes (If Yes, please provide further details below.) No d. When, and how, did the Claimant first become aware of the licensee s failure to lodge the rental bond with the Rental Bond Board? e. Has the Claimant contacted the licensee in relation to the licensee s failure to lodge the rental bond with the Rental Bond Board and, if so: i. When was that contact made; ii. How was that contact made; and iii. What was the licensee s response, if any? f. Has the Claimant taken any other action in relation to the licensee s failure to lodge the rental bond with the Rental Bond Board? g. What was the outcome, or what is the current status, of any other action taken by the Claimant (if any) in relation to the licensee s failure to lodge the rental bond with the Rental Bond Board? h. Is any money still owing between: i. the tenant and the landlord; or ii. the landlord and the licensee? If Yes, please provide further details including the reason for, and amount of, the money still owing. Yes (If Yes, please provide further details below.) No i. What is the amount of the Claimant s loss that was caused by the licensee s failure to lodge the rental bond with the Rental Bond Board?

8 3. The Claimant provides copies of the following relevant documents in support of the claim: (Please identify, and attach copies of, all relevant documents in support of the claim.) Managing Agency Agreement (if applicable) dated:.... Lease Agreement dated:... Receipts issued by the licensee dated:... Statements issued by the licensee dated:.. Tax Invoices issued by the licensee dated: Bank account statements (or EFT/Internet Payments/Direct Deposit receipts) showing payment of the rental bond to the licensee dated:.. Other (please describe any other documents provided in support of the claim): The Claimant authorises NSW Fair Trading to undertake any enquiries and carry out any searches to consider and determine the claim. 5. The Claimant consents to the use and disclosure of any information provided in or attached to this declaration for the purposes of determining the claim or the enforcement of any rights or remedies to which the Director-General is subrogated. And I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Oaths Act Declared at: [place] on [date] Signature of declarant in the presence of an authorised witness, who states: I, a, Name of authorised witness Qualification of authorised witness [Justice of the Peace, Australian legal practitioner] certify the following matters concerning the making of this statutory declaration by the person who made it: [* please cross out any text below that does not apply] 1. *I saw the face of the person OR *I did not see the face of the person because the person was wearing a face covering, but I am satisfied that the person had a special justification for not removing the covering, and 2. *I have known the person for at least 12 months OR *I have confirmed the person s identity using an identification document and the document I relied on was: [describe identification document relied on]. [signature of authorised witness] [date]

9 2/16/2018 Compensation claims property Consumer Affairs Victoria Compensation claims property The Victorian Property Fund VPF provides compensation for individuals and corporations when an estate agent conveyancer or their respective representative has misused or misappropriated trust money or property in the course of their work Such misuse or misappropriation is known as defalcation and can include theft embezzlement failing to account fraudulently misappropriating For example a defalcation has occurred if an agent misused trust money including deposits or rent when handling a sale or managing a rental property You can claim the full amount of your monetary loss and costs associated with making a claim for compensation Note You cannot make a claim simply because you believe the agent or conveyancer acted unprofessionally gave bad advice or misrepresented the property For general tips view our Resolve your problem or complaint page https www consumer vic gov au contact us resolve your problem or co mplaint overview How to make a claim Step Contact our us on am to pm Monday to Friday except public holidays Calling us costs the same as a local call Additional charges may apply if you are calling from overseas on a mobile or payphone We provide advice on real estate matters dispute resolution services and complaints We also advise estate agents and agents representatives on their obligations to buyers sellers or landlords Step Complete a Claim for compensation from the Victorian Property Fund Word KB https www consumer vic gov au library forms housing and accommodation buying and selling property claim for compensation from the victorian property fund doc Step Check that you have attached all the required documents from the relevant list following then lodge your claim Lodgement details are on the form Required documents Landlords If you are applying as a landlord please attach copies of the rental management authority between yourself and the estate agent the rental agreement lease between you and the tenant receipts bank statements or cheque stubs from the tenant to show they have made rental payments for the period you are claiming records or bank statements to show you have not received payments for the period you are claiming landlord statements sent to you by the estate agent that are relevant to this matter any correspondence between you and the estate agent about this matter This can include s and text messages Please note that you do not need to make separate claims for separate properties Residential tenants If you are applying as a residential tenant please attach copies of the rental agreement lease between you and the landlord a completed bond lodgement form proof that you paid the bond such as a receipt from the estate agent your bank or Australia Post or bank statements or cheque stubs written acknowledgement from the estate agent currently managing your tenancy that you have vacated the premises written acknowledgement from your landlord that you are entitled to the full bond written consent from any co tenant s waiving their claim on the bond any correspondence between you and the estate agent or your landlord about this matter This can include s and text messages Commercial tenants If you are applying as a commercial tenant please attach copies of the rental agreement lease between you and the landlord proof that you paid the security deposit such as a receipt from the estate agent your bank or Australia Post or bank statements or cheque stubs written acknowledgement from the estate agent currently managing your tenancy that you have vacated the premises written consent from your landlord to release the deposit or an order made by the Victorian Civil and Administrative Tribunal VCAT any correspondence between you and the estate agent or your landlord about this matter This can include s and text messages Sellers and selling property/compensation claims 1/2

10 2/16/2018 Compensation claims property Consumer Affairs Victoria Sellers If you are applying as a seller of a residential property please attach copies of the sales authority between you and the estate agent the contract of sale between you and the purchaser of your property a receipt bank statement or cheque stub from the purchaser to show they paid the deposit you are claiming the Statement of Settlement issued by the estate agent for your sale records or bank statements to show you did not receive the payment of the deposit written consent from the purchaser to release the deposit or an order made by VCAT any correspondence between you and the estate agent about this matter This can include s and text messages Purchasers If you are applying as a purchaser of a residential property please attach copies of the contract of sale between you and the seller of the property a receipt bank statement or cheque stub to show you have paid the deposit you are claiming written consent from the seller to return the deposit or an order made by VCAT records or bank statements to show you did not receive the return of the deposit any correspondence between you and the estate agent about this matter This can include s and text messages After you make a claim We will let you know in writing when we receive your claim and if we need more information If you do not attach all the required documents you may delay the claim process We will review your claim and either approve or reject it Appealing a decision If we reject your claim you can appeal the decision by applying to VCAT within three months of receiving the decision For information on how to appeal a decision visit the VCAT website http www vcat vic gov au About the Victorian Property Fund The VPF is a trust fund established under the Estate Agents Act and administered by Consumer Affairs Victoria Its income comes from licence fees paid by estate agents and conveyancers any nes and penalties payable under the Estate Agents Act and Conveyancers Act interest on licensed estate agents and conveyancers trust accounts investment income We administer claims and grants from the VPF For information on grants view our Victorian Property Fund grants page https www consumer vic gov a u clubs and fundraising funded services and grants victorian property fund grants Related information Estate Agents Act refer to sections Legislation Victoria Website http www legislation vic gov au Domino Web Notes LDMS PubLawToday nsf c dd eac a ca dde e b e a db fbca e c eb OpenDocument Conveyancers Act refer to sections Legislation Victoria Website http www legislation vic gov au Domino Web Notes LDMS PubLawToday nsf c dd eac a ca dde e b b f d e ac bca e f e f OpenDocument Victorian Civil and Administrative Tribunal VCAT website http www vcat vic gov au Last updated November State Government of Victoria Consumer Affairs Victoria and selling property/compensation claims 2/2