Estate Agents (Fees) Regulations 2018

The central concept is the fee unit, defined by the Monetary Units Act 2004. Each fee figure in the regulations is expressed as a number of fee units; the actual dollar amount payable is that number multiplied by the value of a fee unit for the financial year in which payment is due. The value for 2018-19 was $14.45, and it is adjusted annually by the Treasurer and published in the Government Gazette. The amount may be rounded to the nearest 10 cents. This indexing mechanism means fees rise automatically with inflation, potentially increasing compliance costs without further regulation.

The regulations distinguish between application fees and annual licence fees. Application fees are one-off charges paid when a person or corporation first applies for a licence. Annual licence fees are recurring and must be paid each year to maintain the licence. Regulation 6 sets these for estate agents, with different rates depending on whether the applicant is a corporation or not. For corporations, the annual fee from 1 September 2018 is 14.52 fee units plus 13.26 fee units for each director. This per-director charge is a notable feature: it means the total fee scales with board size, creating a disincentive to have many directors. Non-corporate agents (sole traders or partnerships) pay a flat 14.52 fee units annually.

There is a transitional fee period for the 2018-19 year: from 1 July to 31 August 2018, annual fees were higher (33.47 fee units for corporations, 15.21 for others) than the ongoing rate from 1 September 2018. This likely reflects a shift from a previous fee structure to the new one. Practitioners must be aware of which rate applies on the date of payment.

Another key concept is the late payment or lodgement fee (regulation 8), which is 6.52 fee units. This is a penalty for failing to pay annual licence fees or lodge required documents on time. Similarly, regulation 7 sets a fee for applying for an extension of time (6.74 fee units). These fees are relatively modest compared to the base licence fees.

Regulations 10-13 address exceptional circumstance applications. These are fees for individuals or corporations who are otherwise disqualified from holding a licence (e.g., due to bankruptcy, criminal record, or involvement in a Fund claim) to apply for a limited right to hold a licence. The fees are substantial: 80.09 fee units for individuals (regs 10-12) and, for corporations, 81.40 fee units plus 63.58 fee units per director (reg 13). These higher fees reflect the additional administrative and assessment burden of processing such applications.

Finally, regulations 14 and 15 cover information access fees for copies of or extracts from the register (6.04 fee units) and for a Registrar’s certificate (7.56 fee units). These are relatively low, presumably to encourage transparency.

The regulations directly affect any person or entity required to hold a licence under the Estate Agents Act 1980. This includes: natural persons who are estate agents (e.g., sole traders or partners in a partnership); corporations that carry on the business of an estate agent; directors of those corporations (because the per-director fee increases the total cost); and branch managers who need approval under section 30(5) of the Act. The regulations also affect persons with a disqualifying history: those who have been involved in a Fund claim (regulation 10), who are bankrupt (regulation 11), who have a criminal record (regulation 12), or corporations with disqualifying factors such as an undischarged bankrupt director or certain convictions (regulation 13). These individuals or entities must pay substantial application fees to seek a limited licence.

Indirectly, the regulations affect consumers of estate agency services. The fees are a cost of doing business for estate agents. Higher licence fees may be passed on to vendors and purchasers through commission rates or service charges. The per-director fee may influence corporate governance: corporations with many directors face higher annual costs, which could lead to smaller boards or consolidation. The late payment fee and extension fee affect cash flow and administrative compliance for agents who miss deadlines.

Professional licensing bodies such as the Business Licensing Authority (BLA) or Consumer Affairs Victoria (CAV) are the recipients of these fees and must administer the fee schedule. The Registrar under the Act issues certificates and extracts, and the fee structure funds those services.

The regulations also affect accountants and compliance professionals who advise estate agents on licensing costs and budgeting. Because fees are indexed annually via fee units, these professionals must track the current value each financial year.

The sunset provision (26 June 2028) puts pressure on future governments to review and remake the regulations, affecting the long-term cost certainty for the industry.

The duties imposed by these regulations are predominantly payment obligations. An estate agent must pay the prescribed fee at the time of application for a licence (regulation 6(1)) and annually thereafter (regulation 6(2)). Failure to pay annual fees on time triggers the late payment fee under regulation 8. The regulations do not create a duty to apply for a licence; that duty arises from the Estate Agents Act 1980 itself.

A duty also arises for branch managers to pay the annual approval fee (regulation 9(a)) and, if late, the late payment fee (regulation 9(c)). For those seeking an extension of time to pay or lodge documents, there is a duty to pay the extension fee (regulations 7 and 9(b)).

For disqualified persons (bankrupt, criminal record, Fund claim, corporate disqualification), the regulations impose a duty to pay the specified application fee if they wish to apply for a limited licence. Without paying that fee, the application cannot proceed.

The regulations confer rights as well. An applicant has a right to apply for an extension of time to pay annual fees or lodge documents, provided they pay the extension fee. A person may request a copy of or extract from the register (regulation 14) or a Registrar’s certificate (regulation 15) upon payment of the prescribed fee. A disqualified person has a right to apply for a limited licence (subject to the Act’s provisions) if they pay the application fee.

The fee-unit indexing gives the right to have the fee amount calculated using the value fixed for the relevant financial year. This means the dollar amount is not fixed in the regulations but is determinable by reference to the Gazette notice. Licensees have a right to rely on the published fee unit value.

There is no explicit right of refund or waiver in these regulations. The Act may provide for that, but the regulations do not.

The regulations themselves do not create criminal penalties or enforcement mechanisms; they merely prescribe fee amounts. However, non-payment of prescribed fees triggers consequences under the Estate Agents Act 1980. The late payment or lodgement fee under regulation 8 is effectively a penalty for non-compliance: if an agent fails to pay the annual licence fee by the due date, they must pay an additional 6.52 fee units. That is a modest financial penalty, but the Act may also provide for licence suspension or cancellation for non-payment.

Similarly, failure to pay the annual branch manager approval fee may jeopardise that approval. The late fee for branch managers is the same 6.52 fee units.

More severe penalties likely apply for operating without a licence, but those flow from the Act, not these regulations. For example, the Act may impose fines or imprisonment for unlicensed trading. The regulations only set the fees necessary to obtain and maintain a licence.

The extension of time fee (regulation 7 and 9(b)) is not a penalty; it is a cost for seeking a concession to avoid a late payment. It is a compliance burden on agents who miss deadlines.

The substantial application fees for disqualified persons (regulations 10-13) function as a barrier to re-entry. They are not punitive in nature but may deter applicants with limited means. For a bankrupt person, paying 80.09 fee units (potentially over $1,150) could be prohibitive, effectively penalising past financial failure.

Enforcement of fee collection is administrative: the Registrar or licensing body will not process an application or renew a licence without payment of the correct fee. If a licensee fails to pay annual fees, their licence may lapse. The regulations do not provide for interest on overdue amounts; only the flat late fee applies.

The regulations are made under section 99 of the Estate Agents Act 1980 (the Act). They prescribe fees for specific sections of the Act: s 17(1A) (application fee), s 23(1) (annual licence fee), s 24(1) (extension of time), s 24A(1) (late payment/lodgement), s 30(5) (branch manager approval), s 31A(2A)(d) (Fund claim), s 31B(2A)(d) (bankrupt), s 31C(2A)(d) (criminal record), s 31CA(2)(d) (corporation disqualification), s 33(5) (copy of register), and the unnumbered provision relating to Registrar’s certificate. Any amendment to these sections of the Act could affect the operation of these regulations.

The regulations are subject to the Monetary Units Act 2004. That Act defines the fee unit and provides for annual indexation by the Treasurer. The regulations cannot be understood without reference to the current fee unit value, which changes each financial year. This interaction means the dollar amounts of fees are not fixed for the life of the regulations; they increase (or possibly decrease) each year. This reduces the need for frequent fee regulation updates but also introduces uncertainty for licensees, who must check the Gazette each year.

The regulations also interact with the Subordinate Legislation Act 1994. Regulation 3 provides for commencement on 1 July 2018. The endnote states the regulations will sunset 10 years after making (26 June 2028) under section 5 of that Act. This means the regulations have a built-in expiry date unless remade. This limits the long-term certainty of the fee structure and forces a future review.

The Interpretation of Legislation Act 1984 (ILA) governs how the regulations are to be read. The endnotes explain that headings, examples, notes, punctuation, and provision numbers form part of the statutory rule. This is relevant when interpreting ambiguous fee provisions. The ILA also provides for style changes and the effect of amendments (via s 39B). The regulations currently have no amendments.

The regulations revoke the Estate Agents (Fees) Regulations 2007 (S.R. No. 79/2007 as extended by S.R. No. 70/2017). This means the old fee schedule no longer applies. Any transitional issues would be dealt with by the general transitional provisions in the Act or the Subordinate Legislation Act.

The regulations do not interact directly with other state or federal licensing regimes, but estate agents may also be subject to the Australian Consumer Law (e.g., for misleading conduct) or the Competition and Consumer Act 2010 (Cth). The fees here are state-specific and do not override federal law.

Version 001 of the Estate Agents (Fees) Regulations 2018 is the original version as made on 26 June 2018 and commencing 1 July 2018. The table of amendments in the endnotes records that there are no amendments made by statutory rules, subordinate instruments, or Acts. As at the date of this publication, the regulations have not been amended.

The regulations revoked the earlier Estate Agents (Fees) Regulations 2007. That 2007 regulation had been extended in operation by S.R. No. 70/2017, so it was still in force immediately before 1 July 2018. The 2018 regulations therefore represent a fresh fee schedule after approximately 11 years of operation of the 2007 version.

There are no amendments not in operation. The regulations are not subject to any pending amendment from other instruments.

Because the regulations are made under a broad enabling power (section 99 of the Act), and because fee rates are typically updated every few years, one would expect future amendments to adjust fee units or add new fee items. The sunset date of 2028 provides a natural endpoint; before then, the government may remake or amend the regulations. The use of fee units reduces the need for frequent amendments to the regulation itself, as the dollar value is adjusted externally.

The absence of amendment history to date may indicate that the fee unit indexation has been sufficient to keep fees current, or that no new fee categories have been needed. Practitioners should monitor the Victorian Legislation website for any future amendments, which could include changes to the per-director charges or the exceptional application fees.

The provided text does not cite any litigation concerning these regulations. As a subordinate instrument that merely sets fees, there is likely little case law directly on point. Challenges to fee regulations could occur on grounds such as: the regulation being beyond the scope of the enabling power (ultra vires); the fee being set arbitrarily or without proper consultation; or the fee being so high as to be a de facto barrier to entry (though that is a policy argument rather than a legal one). No such challenges are recorded in the source.

There may be litigation under the Estate Agents Act 1980 itself concerning licence refusals, but such cases would turn on the Act’s substantive provisions, not the fees. For instance, a person refused a licence due to bankruptcy might challenge the refusal; the fee for applying (regulation 11) would be a minor procedural point.

The regulations are administrative in nature, so they are unlikely to generate significant litigation. The most likely dispute would be over the calculation of fees when the fee unit value is contested or when rounding is applied. However, the Monetary Units Act 2004 provides a clear mechanism for fee unit values, so there is little ambiguity.

A major gotcha is that the fee amounts in the regulations are expressed in fee units, not dollars. A practitioner who calculates fees using the 2018-19 value of $14.45 for subsequent years will underpay or overpay. The fee unit value changes each financial year; it is published in the Government Gazette and a newspaper. The failure to use the correct value could result in underpayment, leading to late fees or licence suspension. The regulations do not specify any grace period for using the wrong value; the onus is on the payer.

Another hidden trap is the per-director fee for corporations. Regulation 6(2)(b)(i)(B) adds 13.26 fee units for each director of that corporation. This is on top of the base fee of 14.52 fee units. For a corporation with ten directors, the annual fee becomes 14.52 + (10 × 13.26) = 147.12 fee units, or over $2,100 if the value is $14.45. This can be a significant cost that board members may not anticipate. If a corporation adds a director mid-year, the fee for that director may be due at the next renewal. The regulations do not provide for pro-rata fees.

The transitional fee period (1 July to 31 August 2018) creates confusion. The annual fee for a corporation in that period was 33.47 fee units (reg 6(2)(a)(i)), but from 1 September it became 14.52 + per-director charges (reg 6(2)(b)). An agent who paid the full annual fee on 1 July might have overpaid compared to the later rate. Conversely, an agent who renewed late in August might have paid the higher rate unnecessarily if they could have waited until September. The change in structure also means that the per-director component did not apply during the transitional period, so directors added after September would increase fees.

The late payment fee (regulation 8) is flat 6.52 fee units regardless of how late the payment is. This is a one-time penalty, not a daily accrual. While that may seem lenient, the underlying Act may allow for licence suspension or cancellation if payment is not made within a reasonable time.

For exceptional circumstance applications (regulations 10-13), the fees are high relative to standard licence fees. A bankrupt person must pay 80.09 fee units (over $1,150 at 2018-19 rates) just to apply. If the application is refused, the fee is likely not refundable. This can deter legitimate applicants and may be seen as a regressive barrier.

The register copy fee (regulation 14) is 6.04 fee units, but the regulations do not specify whether that is per copy or per extraction. If multiple pages are involved, the fee may be per document. Similarly, the registrar’s certificate fee (regulation 15) is 7.56 fee units. These are small but could be underestimated if many copies are needed.

Finally, note that the regulations do not set fees for every possible action under the Act. For example, the fees for transferring a licence or replacing a lost licence are not listed; those may be covered by other provisions or by the general power to prescribe fees. Always check the Act for any additional fees not covered here.

Compliance with these regulations is essentially a matter of paying the correct amount at the correct time. The steps for a typical estate agent are:

1. Determine the fee unit value for the current financial year. Check the Government Gazette or the Victorian legislation website for the Treasurer’s determination under the Monetary Units Act 2004. As of 2018-19, it was $14.45; for later years, use the published figure. Multiply the fee unit number by that value, then round to the nearest 10 cents.

2. For a new licence application: Before submitting the application under s 17 of the Act, pay the application fee from regulation 6(1). If you are a corporation, also pay the per-director application fee (27.79 fee units plus 18.94 fee units per director). If you are a non-corporate agent, pay 26.11 fee units. Note that the application fee is separate from the first annual fee.

3. For annual licence renewal: Pay the annual fee set out in regulation 6(2) by the due date (usually 30 June each year, but check your licence). From 1 September 2018, corporations pay 14.52 fee units plus 13.26 fee units per director; non-corporations pay 14.52 fee units. If you are renewing during the first two months of the 2018-19 year, use the transitional rates (reg 6(2)(a)).

4. If you cannot pay on time: You may apply for an extension of time under s 24 of the Act. Pay the extension fee of 6.74 fee units (regulation 7) with the application. Alternatively, if you pay late, you must pay the late payment fee of 6.52 fee units (regulation 8) in addition to the outstanding annual fee. Do not assume you can simply pay late without the surcharge; the late fee is mandatory.

5. For branch managers: The person approved as a branch manager must pay the annual approval fee per regulation 9(a). The fee changed from 4.54 fee units (transitional) to 2.79 fee units from 1 September 2018. Also note the extension and late fees for branch manager approvals.

6. If you have a disqualifying factor (e.g., bankruptcy, criminal record, involvement in a Fund claim): Before applying for a limited licence under s 31A, 31B, 31C, or 31CA, pay the relevant application fee: 80.09 fee units for individuals, or for corporations, 81.40 fee units plus 63.58 fee units per director. These fees are not refundable.

7. For accessing the register: If you need a copy of or extract from the register kept under s 33, pay 6.04 fee units per request. If you need a certificate from the Registrar as to any matter relating to the register, pay 7.56 fee units. Keep a record of the request and payment.

8. Maintain records of all fee payments, include the calculation method, the fee unit value used, and the date of payment. This assists in case of audit or dispute. Also monitor any changes to the regulations (e.g., via the Victorian Legislation website) as fee structures may be updated.

9. Budget for annual fee increases. Because the fee unit value is indexed, fees will likely rise each year. Include this escalation in your annual budgets. Consider the per-director cost: if your corporation has many directors, the annual fee is higher than a competitor with fewer directors. There may be scope to reduce the number of directors if governance allows, but not solely for fee reasons.

10. Note the sunset date: 26 June 2028. After that, the regulations will expire unless remade. The fee schedule will then revert to whatever the Act provides (possibly no prescribed fees, which would mean zero, but more likely the government will make new regulations before then). Stay informed about the status of the regulations in the lead-up to the sunset.