Суд отказал юридической фирме в запрете на критику её бизнес-модели

A newly established law firm has failed to silence a principal solicitor who publicly alleged its business model was illegal. Following reforms to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML-CTF), asset management firm Riverstone Partners established Agency Settlements, a legal practice that assists real estate agents to comply with their new obligations. Its clients encourage vendors and purchasers to include a special condition in the standard form contract of sale that allows Agency Settlements to be a deposit holder and stakeholder. By doing so, it is Agency Settlements that is required to comply with AML-CTF. Dott & Crossitt principal solicitor and founder Jared Zak has questioned Agency Settlements’ lawfulness under section 86 of the Property and Stock Agents Act 2002 in conversations with clients, employees of Agency Settlements, and in an online petition that encouraged fellow conveyancing practitioners to support his views about the matter. Under section 86 of the Property Act, money received on or behalf of any person by a licensee in connection with the licensee’s business is to be held by the licensee (or a corporation if employed by one), is to be paid to the person as they direct, and is to be retained in a trust account at an authorised deposit-taking institution in NSW until those directions are made. Agency Settlement has argued its business model does not contravene this section. Agency Settlements commenced proceedings in the NSW Supreme Court to obtain a declaration that its business model is lawful and for declarations and orders under the Competition and Consumer Act 2010 that Zak has engaged in misleading or deceptive conduct. Those proceedings are ongoing, with the Agency Settlements likely to argue that the vendor’s agent would not be contravening the Property Act by having the special condition included in the contract of sale. Justice James Hmelnitsky considered this proposition “to be sufficiently arguable to make good this aspect of Agency Settlements’ case”. Until those proceedings can be heard, Agency Settlements sought an order for interim relief that would have restrained Zak from representing to any person that its business model and method of receiving deposits were unlawful or a breach of the Property Act. After the NSW Supreme Court dismissed the application for interim relief, Zak said he achieved a “significant win for consumer rights”. “The decision has affirmed my ability to continue to advise my clients appropriately, including who should hold their deposits and advocate for the industry,” Zak said in a statement shared with the media. “I would like to take the opportunity to call upon NSW Fair Trading and their Queensland and Victorian counterparts to act to protect consumer rights by making clear that the deposit on residential property transactions should be held in a real estate agent’s regulated trust account or, failing that, the vendor’s solicitor’s trust account.” The dispute was traced back to a March email from Zak, which asked that Agency Settlements “never contact me again”, claimed it had “no role” in a property transaction, and threatened to contact the NSW Law Society “should you continue to purport otherwise”. In early July, the Australian Institute of Conveyancers (AIC) issued a bulletin in relation to “deposit flicking”, which refers to the practice of a real estate agent transferring or directing deposits be paid by the purchaser to a separate entity, including a vendor’s solicitors. On Agency Settlements’ case, Zak could not continue to hold the “honest belief” that its business model was unlawful in circumstances where the special conditions protect it from the risk of “deposit flicking”. Justice Hmelnitsky added that Agency Settlements’ model was different from “deposit flicking” as it used a special clause in which both the vendor and purchaser agree to the deposit being held by the firm. An email to the firm from Zak set out that he “100 per cent” supported the AIC’s position, “including their comments on the potential illegality of your scheme”. He also alerted Agency Settlements to a poll that allegedly demonstrated that all NSW conveyancers who responded “do not support your proposal to become a mega-deposit” in the state. “Far from making it more safe for consumers, your model would create an extraordinary amount of systematic risk for the property market as well as making it a ’honey pot’ for cyber scammers,” he said. Agency Settlements told the Supreme Court it had withdrawn from around 15 transactions in which Zak and Dott & Crossitt have acted for the vendor and purchaser, and have refused to engage with them. Two prospective clients allegedly told Agency Settlements they would be unable to engage them due to concerns about its ability to deliver services without interruption caused by Dott & Crossitt. As a result, the law firm claimed its new client engagement has declined by 82 per cent month on month from June to July. In coming to his interim relief decision, Justice Hmelnitsky found the evidence did not establish a serious arguable case that Zak’s AIC email and correspondence with two real estate agents contained the alleged representation that his views were a “statement of fact”. However, he did find a seriously arguable case in Zak’s publication of the online petition: “Minds often differ about whether a statement conveys a representation of fact or opinion, and there are aspects of the petition that are capable of supporting both conclusions.” Agency Settlements’ case in relation to its Australian Consumer Law claim was “sufficiently strong to support the grant of interim relief”, but it fell short on its claim of injurious falsehood. Not only was its malice case “weak”, but Zak was “quite entitled to have a view about which regime better protects the interests of his clients and of vendors and purchasers generally”. Agency Settlements was also not able to make good its claims that it had suffered declining engagement from new clients, with Justice Hmelnitsky finding that its proposition “supposes a vastly more detailed understanding of the market for its services and the factors affecting its growth or decline than appears on the evidence”. Further, there are “many voices” contributing to the debate about Agency Settlements’ business model proprietary. “Very little is to be gained by silencing just one of those voices. “This is especially so when it is remembered that Zak would in any event not be restrained from expressing, as publicly and prominently as he likes, that he holds the honest opinion that the business model is unlawful. In these circumstances, interim relief would not be very useful,” Justice Hmelnitsky said. Citation: Agency Settlements Pty Ltd v Zak [2026] NSWSC 950. Editor's note: This article was updated to reflect Zak and Agency Settlement's position on Section 86 of the Property and Stock Agents Act 2002.