NSW Misleading Retail Lease - Real Estate Agents Refuse to Give Refund?

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5 September 2015
Need some help on my problem with a certain real estate.

I initially put down a deposit to further negotiate the terms and conditions to lease a property but have since advised the real estate agents that I would like a refund as the property was falsely advertised as 590 sqm but upon doing my own measurements turned out to be 370 sqm. The real estate is now unwilling to refund me and has changed their advertisement to include a mezzanine and balcony into the floor area (which was initially not included in the 590 sqm) which now totals 570 sqm according to their NEW advertisement.

Do I have a case here?

Any input would be greatly appreciated.


Hi WayneS,

Property agents are required to take responsibility for what they represent to clients and customers. When an agent provides information about a property a reasonable attempt should be made to check its accuracy. The agent should seek some verification of the information htey are relaying (such as property size). In many cases, a disclaimer will not be sufficient to avoid responsibility for falsely advertised information.

In addition, agents must not do or say anything that could mislead someone involved in a property transaction. A statement or action is misleading if it would lead you to believe something was the case, when it actually wasn't.

Section 51 of the Property, Stock and Business Agents Act (NSW) specifically prohibits publication of statements which are false, misleading or deceptive. Publications cover:
  • newspapers or other periodic publications
  • radio and television broadcasts
  • information posted on websites or e-mail
  • publicly displayed placards, signs, posters
  • brochures, leaflets and flyers that are sent, distributed, thrown or left at an occupied property.
It is also irrelevant whether it was intentional or not. Therefore agents must make sure all information they publish is accurate and does not create a false impression. Check out the following Advertisement guide prepared for agents:

Advertising guidelines - NSW Fair Trading

Generally there are penalties for Misleading and deceptive conduct and also civil remedies.

I would write a letter of demand to the Real estate agent stating that you believe he has been involved in Misleading and deceptive conduct - citing the advertising guide and s51 of the Property, Stock and Business Agents Act (NSW) and attaching copies of hte evidence you have (the misleading advertisement and the corrected one) and demanding refund of your deposit. I would also add that if the deposit is not paid back to you within 1 week, you will take it up with NSW Office of Fair Trading.