The Property, Stock and Business Agents Act 2002 (NSW) and the Property, Stock and Business Agents Regulation 2014 (NSW) govern the licensing, operation and obligations of real estate agents in NSW. 

Making statements about vendor bids when property passed in:

Importantly, when residential property is passed in at auction and the last bid accepted at the auction was a vendor bid, the real estate agent must not, by a statement made while marketing the property, indicate the amount of the last bid accepted at the auction unless the statement also clearly indicates that the bid was a vendor bid.

Concealment and silence

Agents must consider whether there is a reasonable expectation of disclosure in a given situation. If the agent is aware of information, they must not conceal or supress it if there is a reasonable expectation that the information would concern a buyer or seller. Additionally, when information provided in an original statement changes, the client must be made aware of it. It is the agent’s responsibility to answer any questions by potential buyers both frankly and fully whenever they know the answer to a question.

Material facts: what are they?

A material fact is any fact that would be important to a reasonable person in deciding whether to proceed with a particular transaction. It may be material become material because the agent realises in the particular circumstances that it is material to the particular consumer, even though agents and consumers might not typically regard the matter as material, and alternatively, it may become material by application of an objective standard which has regard to what a reasonably informed consumer with a fair minded understanding of the real estate market, including the role of a real estate agent, would regard as ‘material.’  

Agents are deemed to be the professionals of the real estate market, and indications which would be relevant in determining whether something is material include factors such as the Agent’s treatment of the fact, whether the fact is able to be independently ascertained, whether the fact is likely to impact on price, the reaction of other purchasers to the fact, whether the fact results in the property being in a rare or unusual category or position.

Agents are required to use their judgement to assess individual circumstances as to when to discuss material facts.

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