Auctions

The laws and conditions that cover the auction process.

Real estate agents, stock and station agents and auctioneers need to understand their responsibilities.

The Property and Stock Agents Act 2002 (the Act) and the Property and Stock Agents Regulation 2014 (the Regulation) regulate the way that auctions of residential property and rural land are conducted in New South Wales.

Registering bidders

NSW Fair Trading's Bidder's guide has information including how to register, the kinds of proof of identity required, privacy rights and auction conditions.

The selling agent must give all bidders a copy prior to the auction. This could take place at the inspections.

The Bidders Record

For each auction, a Bidders Record of everyone registered to bid needs to be made. Each bidder must be given a bidder’s number to display. The Bidders Record can be made by:

  • the selling agent, or
  • another agent engaged to act in respect of the sale or acting for or on behalf of the auctioneer.

Important: The selling agent must make sure that all potential bidders receive a copy of the Bidder’s guide prior to auction.

Details to be included in the Bidders Record

The Bidders Record must be in English and must include:

  • the date and place of the auction
  • the address of the property or properties being auctioned
  • the name of the owner of the property at the time of the auction
  • the names and licence numbers of the selling agent and the auctioneer
  • each bidder’s name, address, the identifying number of their proof of identity (see the bidder's guide for more information) and the bidder number allocated to the person for the auction
  • if the person registering is a licensed agent acting for a buyer – their licence number
  • if the bidder is bidding on behalf of someone else, the other person’s name, address and the identifying number of their proof of identity. This requirement does not apply if the person registering has a power of attorney to act for the other person – they can simply register to bid in their own right
  • the highest bid accepted and vendor bid (if any).

A person who intends to bid on behalf of someone else will need to show the agent a letter of authority to bid for that person (unless they have power of attorney).

The letter must include the person’s name, address and identifying number of their proof of identity. The agent does not have to keep a copy of the letter.

This also applies to ‘telephone bidding’. Where a licensed person acting as a buyer’s agent registers to bid, they may show their agency authority instead of a letter.

If the person is bidding for a company, the ABN must be recorded. The letter authorising the person to bid should be on the company letterhead.

If a couple is registering to bid, only one of them needs to register.

This applies to any group of two or more people bidding to buy the property together. If the hopeful buyer has brought a friend or family member to bid for them, the buyer should sign a letter authorising the other person to bid for them.

Important: details in the Bidders Record cannot be shown to anyone, including the vendor.

Proof of identity

The proof of identity requirements have been made as flexible as possible. The basic requirement is that the proof of identity must show the bidder’s name and address and must be issued by a government authority or a financial institution. An Australian passport is an example of acceptable proof.

If the bidder does not have proof of identity which meets that requirement, they can provide two kinds of card or document, at least one of which was issued by a government authority or a financial institution and one which shows their address.

For example, if the bidder has a Medicare card, a birth certificate, ATM card or overseas document such as passport or driver’s licence as their main proof of identity, they will also need something that shows their address, such as a utilities bill or a rental agreement.

If they don’t have anything showing their address, the regulations allow them to complete a statutory declaration stating their address.

Important: if a couple is registering to bid and would be buying the property together, only one of them needs to register.

The bidder number

There are no set requirements about the form of the bidder numbers – this is left up to agents to decide. The number could, for example, be printed or written on a paddle with a handle, or on a piece of cardboard or plastic or laminated paper.

The basic requirement is that the number can be clearly seen by the auctioneer. It is also important to make sure that each bidder has a different number.

Pre-registering bidders before the auction day

Agents can pre-register bidders in advance of the auction to save time on the day. This could be done when prospective buyers are inspecting the property, or any time prior to the auction.

Agents could encourage prospective buyers to drop in or telephone the selling agent’s office to register their intention to bid by giving their name and address.

Many of the details on the Bidders Record can also be filled out in advance, such as the property address and owner’s name.

When pre-registered bidders arrive at the auction, agents will need to confirm it is the same person by checking their proof of identity. The prospective buyer can then be given their bidder number.

Late arrivals

Potential buyers who arrive at the auction late are not prevented from bidding – but they will need to have a bidder number before the auctioneer can take their bids.

While it is up to agents to decide how they wish to deal with registering late bidders, the following suggestions may be helpful:

  • a sign could be placed near the entrance to inform bidders that they need to register
  • a registration table could be set up near the entrance
  • agency staff could carry registration forms on a clipboard and approach late arrivals.

If a bidder arrives at the auction at the crucial point where it is necessary for their bid to be made immediately, they should be advised to raise their hand to indicate to the auctioneer that they wish to make a bid.

It should only take a moment for an agency staff member to note the person’s details from their proof of identity and hand them a bidder’s number.

Multi-property auctions

The laws provide for several options for creating the Bidders Record for auctions which involve more than one property and/or multiple agents.

Where more than one property is offered for sale at an auction, a single Bidders Record may be created which lists the required details for each of the properties.

Bidders would only need to register once, get one bidder number and would be able to bid for any of the listed properties.

Where a multi-property auction involves more than one selling agent:

  • one Bidders Record may be created for all of the properties being auctioned, or
  • each agent may create their own Bidders Record for the properties they are selling.

Depending on the size of the auction, it may be necessary to set up a number of registration tables.

The person responsible for organising the auction will need to make sure that only one series of bidder numbers is used for the auction.

Privacy of bidders’ details

The Bidders Record is subject to strict confidentiality requirements.

Details in the Bidders Record can only be shown to NSW Fair Trading. An authorised investigator would make a written request to the agent to see the Bidders Record. It cannot be shown to the vendor.

The information in the Bidders Record must not be used for any other purpose – it cannot be used to contact bidders and the details it contains cannot be disclosed to anyone else, including the vendor.

Keeping the Bidders Record

The Bidders Record is subject to the general record keeping requirements of the Act.

After a Bidders Record is created, the agent who was responsible for creating it must keep it in a secure place for at least 3 years and must keep all their Bidders Records together, in the form of a Register of Bidders Records.

The Bidders Record may be made directly on to computer at the auction or may be transferred to a computer later. Records may be kept on computer or other electronic storage device, as long as a hard copy can be given to NSW Fair Trading if required.

Where a single Bidders Record is made for an auction involving multiple agents, each agent’s records will need to note the details of the agent who made and keeps the Bidders Record for that auction.

Auctioneers

An auctioneer must not accept a bid from a person unless they are registered in the Bidders Record for the auction and have been given a bidder number.

Auctioneers are not liable to the vendor or any other person for refusing a bid from an unregistered person.

To protect vendors and buyers, a bid taken from an unregistered person, whether inadvertently or deliberately, is deemed to be valid. However, the auctioneer may be subject to disciplinary action by NSW Fair Trading and a fine of up to $11,000.

It is an offence for an auctioneer to invent bids.

Only one bid may be made on behalf of the vendor by the auctioneer.

The vendor’s bid by the auctioneer cannot be used unless notice of the right to bid is notified in the conditions of sale, which must be clearly displayed and be available for inspection before the auction commences.

When the vendor’s bid is made by the auctioneer, the auctioneer must state that it is a “vendor’s bid”.

A co-owner, executor, administrator or someone bidding on their behalf, may make more than one bid as long as:

  • this is outlined in the auction conditions
  • the auctioneer has announced this before the start of bidding at the auction
  • the auctioneer announces the bidder registration number of any co-owner, executor, administrator, or someone bidding on their behalf.

Only one bid may be made by or on behalf of the vendor. When the vendor’s bid is made, the auctioneer must state that it is a vendor’s bid

Auctioneer licence accreditation

The law prohibits a real estate or stock and station agent from conducting property auctions unless the licensed agent is accredited to act as an auctioneer.

The Secretary may accredit a licensed agent if satisfied that the person holds the appropriate qualifications to conduct auctions in accordance with the Qualifications Order issued by the Minister.

An agent who holds a real estate agent licence or stock and station agent licence (Class 1 or Class 2) may apply for accreditation, if they can demonstrate satisfactory completion of at least 3 prescribed units of the Certificate IV in Real Estate Practice (CPP41419).

A licensee is otherwise qualified if they were accredited in the 12 months prior to their new application for accreditation. You can find more information about the required qualifications required for auctioneer accreditation under the Qualifications section.

To apply for auctioneer accreditation, visit the Service NSW website. For further inquiries, contact the Licensing Unit of NSW Fair Trading on 9619 8799.

Auction conditions

Auctions of land or livestock must be conducted in accordance with certain conditions which are set out in the  Regulation.

Auctions of residential property or rural land

The following conditions apply:

1. The vendor’s reserve price must be given in writing to the auctioneer before the auction commences.

2. A bid for the vendor cannot be made unless the auctioneer has, before the commencement of the auction, announced clearly and precisely that a bid may be made on behalf of the vendor by the auctioneer.

3. The highest bidder is the purchaser, subject to any reserve price.

4. In the event of a disputed bid, the auctioneer is the sole arbiter and the auctioneer’s decision is final.

5. The auctioneer may refuse to accept any bid that, in the auctioneer’s opinion, is not in the best interests of the vendor.

6. A bidder is taken to be a principal  unless, before bidding, the bidder has given to the auctioneer a copy of a written authority to bid for or on behalf of another person.

7. A bid cannot be made or accepted after the fall of the hammer.

8. As soon as practicable after the fall of the hammer the purchaser is to sign the agreement (if any) for sale.

9. All bidders must be registered in the Bidders Record and display an identifying number when making a bid.

10. One bid only may be made on behalf of the vendor by the auctioneer on behalf of the vendor.

11. When making a bid on behalf of the vendor, the auctioneer must clearly state that the bid was made on behalf of the vendor.

12. Bidding by a co-owner or executor must be identified in the auction conditions.

Auctions of livestock

The following conditions apply:

1. The vendor’s reserve price must be given in writing to the auctioneer before the auction commences.

2. A bid for the vendor cannot be made unless the auctioneer has, before the commencement of the auction, announced clearly and precisely the number of bids that may be made by or on behalf of the vendor.

3. The highest bidder is the purchaser, subject to any reserve price.

4. In the event of a disputed bid, the auctioneer is the sole arbitrator and the auctioneer's decision is final.

5. The auctioneer may refuse to accept any bid that, in the auctioneer's opinion, is not in the best interests of the vendor.

6. A bidder is taken to be a principal  unless, before bidding, the bidder has given to the auctioneer a copy of a written authority to bid for or on behalf of another person.

7. A bid cannot be made or accepted after the fall of the hammer.

8. As soon as practicable after the fall of the hammer the purchaser is to sign the agreement (if any) for sale.

9. The purchaser of livestock must pay the stock and station agent who conducted the auction or the vendor the full amount of the purchase price:

  • (a) if that amount can reasonably be determined immediately after the fall of the hammer-before the close of the next business day following the auction or
  • (b) if that amount cannot reasonably be determined immediately after the fall of the hammer-before the close of the next business day following determination of that amount, unless some other time for payment is specified in a written agreement between the purchaser and the agent or the purchaser and the vendor made before the fall of the hammer.

The rules of conduct under the Regulation require agents and assistant agents who suspect that livestock may have been unlawfully obtained to inform the police of the cause of their suspicion as soon as reasonably practicable. Their suspicions could be raised at an auction for the sale of livestock or at any other time.

Notification of auction conditions

The auction conditions must be clearly and legibly written or printed in English on a notice exhibited in a conspicuous position so that they may be inspected before and during the auction.

It is important for agents to ensure that they fully comply with the requirements.

There must be sufficient notices available to allow all persons attending the auction to read the notice of conditions.

The notice must be displayed in the area where the auction is being conducted. For example, if an on-site auction is being conducted in front of a house, it is not sufficient to display the conditions only inside the house.

NSW Fair Trading inspectors can issue on-the-spot penalties for failure to correctly display the auction conditions.

Mixed auctions

An auction may involve the sale of multiple lots, with some lots subject to different conditions. This may occur, for example, where rural properties and livestock are being auctioned as separate lots.

In these circumstances, both sets of conditions may be displayed.

Alternatively, the conditions applicable to the majority of the lots on offer can be displayed. Before auctioning a lot to which different conditions apply, the auctioneer must announce the differences clearly and precisely.

Other auction notices

The legislation requires that notice be given about certain other requirements in relation to auctions:

  • the penalties for collusive practices and dummy bidding
  • the requirements applicable to successful bidders.

As with the auction conditions, these notices must be written clearly in English and displayed in a conspicuous position where they may be viewed before and during the auction by any person in attendance.

These notices can be separate or may be combined with the notice of auction conditions. The required wording of these notices is set out below.

Penalty for collusive practices

It is an offence under the Act for a person to do any of the following as a result of a collusive practice, or to induce or attempt to induce another person by a collusive practice to do any of the following:

  • (a) to abstain from bidding
  • (b) to bid to a limited extent only, or
  • (c) to do any other act or thing that might prevent free and open competition.

Severe penalties may be imposed on persons convicted of collusive practices.

Disclosure of vendor bids

If residential property or rural land is passed in at an auction and the last bid was a vendor bid, an agent must not indicate the amount of that bid in any statement made in the course of marketing the property unless the statement clearly indicates that the bid was a vendor bid.

If a property is not sold at an auction, any vendor bid, and the highest bid accepted, at the auction must be recorded in the Bidder’s Record.

Auction conditions

Auctions of land or livestock must be conducted in accordance with certain conditions which are set out in the Property, Stock and Business Agents Regulation 2014.

Auctions of residential property or rural land

The following conditions apply:

  1. The principal’s reserve price must be given in writing to the auctioneer before the auction commences.
  2. A bid for the seller cannot be made unless the auctioneer has, before the commencement of the auction, announced clearly and precisely that a bid may be made on behalf of the seller by the auctioneer.
  3. The highest bidder is the purchaser, subject to any reserve price.
  4. In the event of a disputed bid, the auctioneer is the sole arbitrator and the auctioneer’s decision is final.
  5. The auctioneer may refuse to accept any bid that, in the auctioneer’s opinion, is not in the best interests of the seller.
  6. A bidder is taken to be a principal unless, before bidding, the bidder has given to the auctioneer a copy of a written authority to bid for or on behalf of another person.
  7. A bid cannot be made or accepted after the fall of the hammer.
  8. As soon as practicable after the fall of the hammer the purchaser is to sign the agreement (if any) for sale.
  9. All bidders must be registered in the Bidders Record and display an identifying number when making a bid.
  10. One bid only may be made on behalf of the seller by the auctioneer on behalf of the seller.
  11. When making a bid on behalf of the seller, the auctioneer must clearly state that the bid was made on behalf of the seller.

Bidding by a co-owner or executor must be identified in the auction conditions.

Auctions of livestock

The following conditions apply:

  1. The principal’s reserve price must be given in writing to the auctioneer before the auction commences.
  2. A bid for the seller cannot be made unless the auctioneer has, before the commencement of the auction, announced clearly and precisely the number of bids that may be made by or on behalf of the seller.
  3. The highest bidder is the purchaser, subject to any reserve price.
  4. In the event of a disputed bid, the auctioneer is the sole arbitrator and the auctioneer's decision is final.
  5. The auctioneer may refuse to accept any bid that, in the auctioneer's opinion, is not in the best interests of the seller.
  6. A bidder is taken to be a principal unless, before bidding, the bidder has given to the auctioneer a copy of a written authority to bid for or on behalf of another person.
  7. A bid cannot be made or accepted after the fall of the hammer.
  8. As soon as practicable after the fall of the hammer the purchaser is to sign the agreement (if any) for sale.
  9. The purchaser of livestock must pay the stock and station agent who conducted the auction or the vendor the full amount of the purchase price:

(a) if that amount can reasonably be determined immediately after the fall of the hammer-before the close of the next business day following the auction or

(b) if that amount cannot reasonably be determined immediately after the fall of the hammer-before the close of the next business day following determination of that amount, unless some other time for payment is specified in a written agreement between the purchaser and the agent or the purchaser and the vendor made before the fall of the hammer.

Notification of auction conditions

The auction conditions must be clearly and legibly written or printed in English on a notice exhibited in a conspicuous position so that they may be inspected before and during the auction.

It is important for agents to ensure that they fully comply with the requirements.

There must be sufficient notices available to allow all persons attending the auction to read the notice of conditions.

The notice must be displayed in the area where the auction is being conducted. For example, if an on-site auction is being conducted in front of a house, it is not sufficient to display the conditions only inside the house.

NSW Fair Trading inspectors can issue on-the-spot penalties for failure to correctly display the auction conditions.

Mixed auctions

An auction may involve the sale of multiple lots, with some lots subject to different conditions. This may occur, for example, where rural properties and livestock are being auctioned as separate lots.

In these circumstances, both sets of conditions may be displayed.

Alternatively, the conditions applicable to the majority of the lots on offer can be displayed. Before auctioning a lot to which different conditions apply, the auctioneer must announce the differences clearly and precisely.

Other auction notices

The legislation requires that notice be given about certain other requirements in relation to auctions:

  • the penalties for collusive practices and dummy bidding
  • the requirements applicable to successful bidders.

As with the auction conditions, these notices must be written clearly in English and displayed in a conspicuous position where they may be viewed before and during the auction by any person in attendance.

These notices can be separate, or may be combined with the notice of auction conditions. The required wording of these notices is set out below.

Penalty for collusive practices

It is an offence for a person to do any of the following as a result of a collusive practice, or to induce or attempt to induce another person by a collusive practice to do any of the following:

(a) to abstain from bidding

(b) to bid to a limited extent only, or

(c) to do any other act or thing that might prevent free and open competition.

Severe penalties may be imposed on persons convicted of collusive practices.

Disclosure of vendor bids

If residential property or rural land is passed in at an auction and the last bid was a vendor bid, an agent must not indicate the amount of that bid in any statement made in the course of marketing the property unless the statement clearly indicates that the bid was a vendor bid.

If a property is not sold at an auction, any vendor bid, and the highest bid accepted, at the auction must be recorded in the Bidder’s Record.