Mark Mergard (left) and Ian Brookfiled (right).
Mark Mergard (left) and Ian Brookfiled (right). File

COURT: Businessman loses licence while another gets arrested

A BUNDABERG real estate agent has pleaded guilty after a dramatic start to his hearing.

Before Mark William Mergard, 58, even set foot in the Bundaberg Magistrates Court today, another prominent businessman had been arrested.

Ian Brookfield attended court as a matter of interest to his own court proceedings against Mergard, however Mr Brookfield was shortly arrested after arriving for breaching a bail condition.

The court heard that in May 2019 Brookfield had been arrested and charged with the harassment and stalking of Mergard and his wife Katrina.

Mr Brookfield said part of his bail conditions were to stay 50m away from the Mergards unless in relation to a court matter, for which he maintains yesterday was. Mr Brookfield was then arrested outside the court room, charged with breaching bail and ordered to appear in court on July 5.

After Mr Brookfield was arrested, Mergard's defence team then tried to have another business person removed from court, however that attempt was unsuccessful.

Mergard, who had been a real estate agent for almost 20 years, then pleaded guilty to three charges in relation to dishonestly converting money from a property sale.

The charges had been contested until late Sunday and both parties had prepared for trial but Mergard changed his plea at the last minute.

Office of Fair Trading prosecutor Robert Vize said on June 23, 2016, Mergard, operating from his company Real Estate Now, held an appointment to find a purchaser for a Svensson Heights property.

On October 4, 2016, Mergard drew up a contract for the sale.

A $50,000 deposit was to be paid under the contract, however bank account details were left off the document.

Mr Vize said under legislation, all monies received by a real estate agency must sit in a trust until a contract has settled or an agency is authorised to move the money.

However Mergard did not provide details for the trust account, but a personal one.

On October 13, 2016, the $50,000 was transferred. The amount was a combination of Mergard's commission on the sale, as well as a sum allocated to the former owner of the residence.

"The following day, seven transfers were made out of the account ... the property hadn't settled," Mr Vize said.

The first amount of $20,000 was a transfer to 1770 Marina Pty Ltd, a company of which Mergard formerly was a director but had since handed over to John Mergard.

"I understand that person is likely to be the brother of the defendant," Mr Vize said.

He said the second transfer, looked to be a payment make to a Perth bank as a domestic home loan expense.

The third transfer, again of $20,000, was said to be paid to administrators for a deed of company arrangement, with the following four transfers of smaller amounts paid to differing accounts, one being $200 to Goalkeeping Australia.

The whole $50,000 had been spent within 24 hours.

Mr Vize detailed that financial strain was obvious, because before the large amount was deposited, the account balance was at $3.02.

"The property didn't settle until November 9, a reasonable period of time after the deposit was made, yet the money was dispersed by the following day," he said.

According to the bank, the prosecutor said the final three transactions had been confirmed by Katrina Mergard.

Of the $50,000, $44,205 was Mergard's commission, yet while the remaining $5750 was meant for the owner, Mergard had already spent it.

Mergard then failed to supply the new owners with a trust receipt, because the money never saw the trust account, and he also failed to pay the former owners their money until some three months later in February 2017.

"If that money had have been paid promptly, it's unlikely it would have caught any attention," Mr Vize said.

"The aditor wouldn't have known about it because they only inspect the trust account.

"This was a simplistic but effective way of accessing money early with reducing the risk of it ever coming to the attention of anyone."

He also said when contacted by investigators, Mergard failed to co-operate and dragged matters out for a number of months, and even then did not provide a full response.

"This is a case of dishonesty by an experienced agent, and there is some evidence of objective concealment," he said.

Defence barrister Nathan Boyd said his client was an upstanding pillar of the community whose actions were out of character.

He said while Mergard had done the wrong thing, no people were left out of pocket by his actions.

"This isn't a situation of greed or anything sinister," Mr Boyd said.

"As the bank statements show, he's involved in family business and financial obligations. This wasn't going to be put through the pokies."

Mr Boyd detailed his 58-year-old client's situation of financial hardship and personal stresses which ultimately led to a heart attack.

He detailed how Mergard had been a business owner and employer in regional Queensland for some 30 years.

The court heard Mergard had four dependants under the age of 18 at home and would soon be a step-grandfather, bringing another it his care.

Mr Duroux said he could see Mergard's behaviour was out of character seeing he had no criminal history and had shining character references.

"Money goes into a trust. It did not escape my attention that by going into general, it does basically avoid the scrutiny of the auditors," Magistrate Terry Duroux said.

Mergard was fined $18,000, ordered to pay prosecution costs of $1500, plus a $96.15 court fee.

No conviction was recorded and Mergard will lose his real estate licence for five years.

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