A Willoughby real estate agency director, company secretary and salesperson has been sentenced to 15 months prison and ordered to pay $80,000 to the Property Services Compensation Fund, as well as $3,581 in costs, after pleading guilty to fraud under the Crimes Act.
Fair Trading Commissioner Rod Stowe said Yena Suzen Foong failed to account, when required to do so, for the balance of an $80,000 sales deposit.
Yena Suzen Foong was a director and company secretary of B-Gold Realty Pty Ltd (deregistered by ASIC on 1 December 2011), which was incorporated on 27 June 2007, with her son also a director.
B-Gold Realty Pty Ltd, trading as Century 21 C-View Realty, conducted a real estate business at Shop 21, 303 Penshurst Street, in Willoughby, with Yena Suzen Foong as a licensed real estate salesperson and her son as licensee-in-charge.
In mid 2009, Yena Foong contacted two people about the possible sale of their home at Castle Cove. The vendors told Ms Foong they would only sign an agency agreement with her if she first found a buyer for their property.
Ms Foong introduced them to buyers and they entered into a contract to sell the home for $1.38 million.
In October 2009, the buyers lodged a $133,000 personal cheque with the company and $5,000 cash, which was a 10 percent sale deposit for the purchase, with settlement for 9 December that year. The monies were deposited into the company’s sales trust account.
Meanwhile, the neighbours to the property commenced action against the sellers claiming $50,000 damages over problems with tree roots. The buyers then exercised their rights under the contract to have the deposit money held by the company pending the outcome of the dispute.
In December 2009, the sellers and buyers agreed to proceed with the sale of the property and the buyer’s solicitor wrote to the real estate agency authorising the release of the deposit, less $80,000.
That same month, the son of Yena Foong authorised the transfer of $45,540 sales commission from the company’s sales trust account to the company’s advertising account. In January, the son executed a $12,460 bank cheque in favour of the sellers.
In April 2010, Ms Foong, without permission and contrary to the terms and conditions of the contract, transferred $80,000 from the sales trust account to another business account, belonging to B-Gold Consultant Pty Ltd, trading as A Consultant Tradesman.
The same day, her son went to the Brookvale branch of a bank and withdrew $80,000 using a BGold Consultant Pty Ltd, trading as A Consultant Tradesman, company cheque made payable to cash. He signed the cheque. He is the sole director of that company and his mother is the company secretary.
On 8 June 2010, the sellers wrote to Ms Foong demanding the release of the $80,000 by 16 June 2010.
In November, they again attempted to contact her on office and mobile phones, but the numbers were disconnected.
On 22 January 2011, the sellers made a claim on the Property Services Compensation Fund.
On 11 March 2011, Ms Foong was interviewed by Fair Trading and was unable to advise Fair Trading what had happened to the $80,000.
Fair Trading interviewed her son on 21 June 2011. He advised Fair Trading that although he was licensee of the business, it was his mother who ran it, that she and he were the only ones with internet banking access, he did not sign the exclusive sales agreement, it was his mother who set up and registered the business, B-Gold Consultants Pty Ltd and he does what his mother tells him to do.
Disciplinary action was taken by Fair Trading against Ms Foong and her son, under the Property Stock and Business Agents Act 2002.
As a result, on 19 September 2011, the son was banned from holding a licence or certificate as a real estate agent for seven years and Ms Foong was banned for five years.
Ms Foong and her son are seeking review of these disqualifications from the Administrative Decisions Tribunal, however, while these proceedings are not yet finalised, they are currently prohibited from working in the real estate industry.
On 19 September 2011, B-Gold Realty Pty Ltd was permanently disqualified from holding a licence under the Property Stock and Business Agents Act 2002, after disciplinary action.
On 6 October, an associated real estate agency, Seaview Pty Ltd, of which Ms Foong was formerly a director, also had its licence cancelled under the Property Stock and Business Agents Act.
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