Using a buyer's agent in South Australia: authority, fees and bids

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Kooky

Builder of Shaka, the payment router that pays every agent their commission on closing date.

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South Australian property law was written with the seller's agent in mind. The words "buyer's agent" appear nowhere in the Land and Business (Sale and Conveyancing) Act 1994, and the Law Handbook of the Legal Services Commission of South Australia, on a page last revised on 23 June 2026, still describes the land agent as someone who works for the vendor. Yet a person who pays a professional to search, negotiate or bid on their behalf is covered by the same two Acts, through a different set of sections. The Act's own term for that professional is "purchaser's agent".

The question for a buyer is which of the familiar rules follow the agent across to the buying side. This guide covers who may lawfully act for a buyer, the written authority that has to be signed, what the law says about fees, expenses and undisclosed benefits, the ban on acting for both sides, bidding at auction for a client, and how registration is checked and a complaint made. It draws on the Act in its version dated 15 January 2026, the Land and Business (Sale and Conveyancing) Regulations 2025, the Land Agents Act 1994 and South Australian Government guidance. It describes the general rules; how they apply to one engagement depends on its own documents and facts.

Land and Business (Sale and Conveyancing) Act 1994 (SA), sections 20 and 24F, version dated 15 January 2026.

Who may act for a buyer

The starting point is the Land Agents Act 1994. Section 4 defines an agent as a person who carries on a business that consists of or involves selling or purchasing or otherwise dealing with land or businesses on behalf of others, or conducting negotiations for that purpose. Purchasing is in the definition alongside selling, so a business that buys homes for clients, or negotiates purchases for them, is an agent's business under the Act.

The South Australian Government's licensing page for land agents, last updated on 6 October 2026, says individuals and companies must register with Consumer and Business Services, the state regulator known as CBS, if they carry on a business that buys, sells or otherwise deals with land or businesses, or that negotiates the buying or selling of them. The page does not use the phrase "buyer's agent", and the sources read show no separate registration under that name. A buyer's agent is a registered land agent, or works for one.

The second route is employment. Section 3 of the Land Agents Act defines a sales representative as a person who, for or on behalf of an agent, acquires or disposes of land or a business, including by auction, or who induces or negotiates with others to that end. Under section 6A, a person may act in that role only if registered as an agent, or registered as a sales representative and employed by an agent under a contract of service. The maximum penalty is A$20,000 for the person, and A$20,000 for an agent who engages someone outside those terms.

Section 4 also says who is not acting as an agent: a legal practitioner dealing with land in the course of legal practice, and a person engaged in mortgage financing.

The price of working without registration is set by section 6. A person must not carry on business as an agent, or hold themselves out as one, unless registered. The maximum penalty is A$50,000 for an individual and A$250,000 for a body corporate. The same section touches the fee directly: a person is not entitled to commission for services as an agent unless they were registered when the services were provided and were authorised in writing to act. Money paid to someone not entitled to it can be recovered as a debt.

The written authority a buyer signs

That phrase, "authorised in writing", is filled out by section 20 of the Land and Business (Sale and Conveyancing) Act 1994. Subsection (3) says an agent must not act on behalf of a purchaser of land or a business unless the agent has been authorised to do so by an instrument in writing signed by the purchaser. The maximum penalty is A$5,000. The two limbs of the subsection differ. For a vendor it covers only "land (other than residential land) or a business", because a vendor of residential land comes under the stricter subsection (1). For a purchaser the words are "a purchaser in the sale of land or a business", with no limit on the type of land, so the subsection covers an agent who acts for the buyer of a home.

Three duties follow the signature.

• A copy for the buyer. Under section 20(4) the agent must make sure the purchaser is given a copy of the signed instrument immediately, or within 48 hours if the two agree to that. The maximum penalty is A$5,000 and the Act sets an expiation fee of A$315, the fixed sum payable on an infringement notice.
• A copy of every change. Section 20(6) applies the same timing to a copy of any variation of the instrument, with the same penalty and expiation fee.
• A file kept for five years. Section 20(9) requires the agent to keep a copy of each instrument that authorises acting for a purchaser. Section 37A adds that such records are kept in South Australia for five years and produced to an authorised officer on request, with a maximum penalty of A$5,000.

The Act uses a wide definition of purchaser. Under section 3 the word covers the person named in a contract as purchaser, a prospective purchaser, and a person authorised to act on behalf of either. A buyer who has not yet found a property is already a purchaser for these purposes.

What the law leaves out on the buyer's side

Section 20 is two regimes in one section, and the difference is the main thing a buyer should understand about the document being signed.

For a vendor of residential land, section 20(1) requires a dated and signed sales agency agreement that states a list of matters, and section 20(2) requires the agent first to give the vendor an approved guide. The subsections on notices of expiry and extensions are written for that agreement too.

None of those subsections names the purchaser. On the provisions read for this guide, the Act asks for a signed written instrument and does not say what it must contain: no list of terms, no approved guide beforehand and no rules on expiry or extension. The same goes for section 21, on how offers are passed on, and section 24A, on advertised prices: each applies to an agent authorised to sell residential land for a vendor.

The length of the engagement, whether it is exclusive, when the fee is earned and how either party may leave are therefore matters for the document itself. One limit applies to any such document: section 33 makes void a term that purports to exclude, limit or waive a right the Act confers.

Fees: nothing fixed, but four rules on when they fall away

Neither Act read for this guide sets a rate, a scale or a cap for a purchaser's agent. Section 3 of the Land and Business (Sale and Conveyancing) Act 1994 defines commission broadly, as any consideration, other than reimbursement of expenses, to which an agent is entitled for services as an agent. A flat engagement fee and a percentage success fee are both commission in that sense.

What the legislation does provide is a set of events that take the fee away.

The first is registration: section 6 of the Land Agents Act 1994 gives no entitlement to commission to a person who was not registered when the service was provided.

The second is the written authority. Under section 20(7), an agent who has contravened section 20 must not demand, receive or retain commission or expenses in respect of the purchase, on a maximum penalty of A$5,000. Section 20(8) lets the person who paid recover the money from the agent as a debt.

The third is a contract that does not survive. Section 23 bars an agent from demanding, receiving or keeping commission in respect of a purchase where the contract is rescinded or avoided under the Act, again on a maximum penalty of A$5,000, and anything received can be recovered as a debt. There is one exception: where the contract was rescinded under Part 2 of the Act and the same parties then make another contract for the same property on which commission would have been payable.

The fourth concerns where the fee goes afterwards. Section 24H forbids an agent from paying the whole or part of the commission to anyone other than an officer or employee of the agent, or a registered agent, on a maximum penalty of A$5,000.

A worked example shows how section 23 can bite. The figures are assumptions for illustration, not market rates. Assume a written authority that sets an engagement fee of A$2,000 payable on signing and a success fee of 1.5 per cent of the purchase price, and a purchase at A$800,000. The success fee is 1.5 per cent of A$800,000, or A$12,000, and the total is A$14,000. If the buyer then cools off under the Act, section 23 prevents the agent from keeping commission in respect of that purchase, which on any reading includes the A$12,000. Whether the A$2,000 engagement fee is also commission "in respect of" that purchase is not settled by the provisions read, and would turn on how the authority describes it.

Expenses and benefits from third parties

A buyer's agent sits in the middle of a chain of other services, such as building inspectors, conveyancers and finance brokers. Two sections of the Act deal with money that moves along that chain, and both cover the buying side. Each defines "agent" as a purchaser's or vendor's agent, defines a purchaser's agent as an agent authorised to act for a purchaser or a sales representative acting for that agent, and calls the person the agent acts for the "client".

Section 24D applies to the sale or purchase of residential land. The agent must not seek from the client an amount for expenses, meaning outgoings or proposed outgoings, that is more than the amount paid or payable by the agent, on a maximum penalty of A$20,000. Benefits the agent receives from third parties are set off when the amount is worked out. Where the cost is not yet known, the agent may charge an estimate, and any excess must be repaid immediately. Where the agent refers the client to a third party and receives a benefit for it, section 24D(6) requires the benefit to be paid to the client. Unpaid sums can be recovered by the client as a debt.

Section 24C is wider in reach, since it applies to the sale or purchase of any land or business, and it works by disclosure. The agent must disclose to the client the nature, source and amount or estimated value of a benefit received from a third party to whom the agent has referred the client or with whom the agent has contracted, and of other benefits received in connection with the purchase. A benefit includes a rebate, a discount and a refund. The maximum penalty is A$20,000. Regulation 22 of the 2025 Regulations requires the disclosure to be made in the form set out in Schedule 5, printed or typewritten in type of at least 12 points.

The two sections are linked. Section 24D(8) takes a benefit disclosed under section 24C outside the expense rules. A worked example, on assumed figures: a purchaser's agent arranges a pre-purchase building inspection invoiced at A$600, and the inspection firm pays the agent a 10 per cent referral rebate, which is A$60. If the rebate has not been disclosed, the agent's real outlay is A$540, that is the most the client can be charged, and a client who paid A$600 on an estimate is owed A$60. If the rebate was disclosed in the Schedule 5 form, section 24D does not apply to it.

Acting for both sides is an offence

The rule that most clearly separates a buyer's agent from a selling agent is section 24F. A person must not act as an agent on behalf of both the vendor and the purchaser of the same land or business. The ban extends back to the paperwork: a person must not enter into agreements to act as an agent where performing them will, or can, result in acting for both. Each offence carries a maximum penalty of A$20,000.

For a buyer, the consequence is that the agent engaged to search and negotiate cannot at the same time hold the vendor's authority to sell the property being pursued. The section itself says nothing about the fee in that situation; the commission rules described earlier apply on their own terms.

The Regulations contain one exemption. Under regulation 24, an auctioneer who acts for both vendor and purchaser by performing the functions of an auctioneer is outside the ban.

Advice, representations and the paperwork of a purchase

Several duties apply to any agent in a transaction, whichever side engaged them.

Financial and investment advice. Under section 24B and regulation 21, an agent or sales representative who gives financial or investment advice orally in connection with a purchase must first give the warning set out in Schedule 4 of the Regulations, introduced by the words "I am legally required to give you this warning". Where the advice is in writing, a notice in the Schedule 4 form, in type of at least 12 points, must be given at the same time or as soon as reasonably practicable afterwards. The maximum penalty under the Act is A$10,000.

False or misleading representations. Section 36 makes it an offence to make a false or misleading representation to induce a sale, a purchase or the engagement of an agent, on a maximum penalty of A$20,000 or one year's imprisonment. It is a defence to prove a reasonable ground for believing the statement true and an actual belief that it was.

The certificate when the vendor has no agent. Form 1 of the Regulations includes a certificate by a registered agent about the prescribed inquiries. Section 9(2) covers the case where no agent acts for the vendor but one acts for the purchaser: the purchaser's agent must then make the prescribed inquiries and sign the certificate, which regulation 14 places in Part D of Form 1. Regulation 13 lists the inquiries, among them asking the vendor about mortgages, charges and prescribed encumbrances and searching the title. The agent must give the vendor a copy within 48 hours of signing and must serve the certificate on the purchaser at least 10 clear days before settlement where the sale is of land.

That certificate carries weight. A false certificate is an offence under section 13, with a maximum penalty of A$20,000 or one year's imprisonment, and section 15(3) allows damages to be awarded against an agent only where the purchaser was prejudiced by the agent's failure to carry out those duties.

Bidding at auction for a client

The provisions read contain no separate licence or registration for a "bidder's representative". What they contain is the bidders register, which every residential auction must keep under section 24J of the Act, and a set of extra entries in it for a person who bids for someone else. A buyer's agent who attends an auction for a client goes through that process like any other representative.

The detail is in regulation 27. For every intending bidder the selling agent records a full name and address, a general description of the proof of identity produced, and a signed confirmation that it was sighted. Acceptable proof is a driver's licence, a passport, a credit or debit card, a gas, electricity or telephone account, or a similar document or card issued to the person. The regulation accepts an original, a photocopy, a fax copy or a scanned copy of the client's authority and proof of identity, so the documents can be prepared ahead of the day.

The auction offences apply to a representative as they do to any bidder. Section 24K lets the auctioneer take bids only from registered bidders displaying their identifier. Section 24L, on collusive practices, section 24M, on disrupting an auction, and section 24N, which forbids bidding in the knowledge that the bid is made for the vendor, each carry a maximum penalty of A$20,000.

The written authority for the register is a separate document from the section 20 instrument. The first tells the selling agent that the bidder may bid for the client. The second authorises the agent to act for the purchaser at all, and is what the fee depends on.

Checking that an agent is registered

Two checks are available on the sources read.

The first is the register. Section 52 of the Land Agents Act 1994 requires the Commissioner to keep a register of registered persons, which records disciplinary action and assurances accepted under the Fair Trading Act, and provides that a person may inspect it on payment of the fee fixed by regulation. The Law Handbook describes the everyday form of this: anyone can search the online licensing register of Consumer and Business Services, which lists licensed agents, sales representatives and conveyancers.

The second is the agent's own proof. Section 11B of the Act requires a registered individual to carry a registration card and to produce it at once when asked by an authorised officer or by a person they are dealing with, on a maximum penalty of A$1,250. The government's licensing page describes current practice differently: registrations are now digital, there is no physical card, and the registration is displayed through the mySAGOV app. The Act and the page do not match on the format; both point to a client being able to ask to see the registration.

Complaints, discipline and compensation

The legislation offers a client two formal routes besides the debts described above, which the client can claim from the agent directly.

Discipline. Under section 44 of the Land Agents Act 1994, the Commissioner or any other person may lodge a complaint with the South Australian Civil and Administrative Tribunal. Proper cause for disciplinary action, under section 43, includes registration that was improperly obtained and conduct contrary to either of the two Acts, or conduct that was otherwise unlawful, improper, negligent or unfair. If the tribunal finds cause, section 47 allows it to reprimand the person, impose a fine of up to A$20,000, attach conditions to the registration, suspend or cancel it, disqualify the person from being registered, and prohibit them from being employed in an agent's business. Fines are paid into the agents' indemnity fund.

Prosecution. The offences described in this guide are prosecuted by the regulator. The Law Handbook says proceedings must be started within five years of the alleged offence, and section 40 of the Land and Business (Sale and Conveyancing) Act 1994 gives the same five years for its non-expiable offences, or seven with the Minister's authorisation.

Money held for a client has protections of its own. Under section 13 of the Land Agents Act, trust money must be deposited as soon as practicable in an approved account in the agent's name, on a maximum penalty of A$20,000. Where a client suffers a financial loss from a fiduciary default, section 30 allows a claim for compensation to the Commissioner from the indemnity fund. The claim is barred where the agent was required to be registered and the claimant knew, or ought to have known, that they were not.

What the sources leave open

Several points are not settled by the pages read for this guide. No prescribed content, form or maximum term for the purchaser's written instrument was found in the Act or in the body of the 2025 Regulations, and the Schedules to the Regulations were not read in full. No South Australian Government page read addresses buyer's agents by name, sets out typical fees or deals with GST on them, so every figure in the examples above is an assumption. The pages read do not describe how CBS itself handles a complaint about an agent before any tribunal stage.

For a seller, South Australian law writes most of the agent's agreement. For a buyer, it requires only that there be one, in writing and signed.

Kooky, from Shaka

Kooky edits Agents Estate and builds Shaka, the payment router he made for real estate professionals. One payment comes in, and every agent, agency and party in the deal receives their signed share on closing date.

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