'I kept repeating I did absolutely nothing wrong': Newcastle real estate Trish O'Neill's fraud conviction under review

The prominent Newcastle real estate agent was found guilty in 2009 of fraudulently misappropriating $35,000 of a client's money during a Heatherbrae property sale.

Branded a fraud, the single mother-of-three was stripped of her real estate licence and banned from working in the industry for 10 years.

"I kept repeating I did absolutely nothing wrong," the 66-year-old said.

"It was so hard. My mum had just been diagnosed with dementia and my dad died a few months later not knowing the truth and fearing I was going to jail. And the humiliation my beautiful children suffered because of this, it just tears me apart."

Almost 15 years later, Ms O'Neill - who remarried four years ago and took her husband, Real Estate Institute NSW Newcastle Hunter divisional chairman Wayne Stewart's, surname - is still fighting to clear her name.

Her conviction for obtaining benefit by deception during the sale of the Heritage Wedding and Function Centre, at Heatherbrae, is under review by the NSW government.

Mrs Stewart lodged an act of grace, or ex-gracia, payment application with the NSW government in October last year, alleging wrongful conviction, financial ruin and corruption.

Ex-gratia payments are made by governments when a person suffers a financial loss or other detriment as a result of government workings, or where there are special circumstances.

In December last year, then Minister for Fair Trading, Victor Dominello, refused the application on the basis that the action taken by Fair Trading, the property sector regulator, was "appropriate based on the evidence available at the time".

But a potential breakthrough for Mrs Stewart came several weeks later, when the Department of Communities and Justice confirmed a review of the case after Mrs Stewart made an application to have her conviction expunged.

"Patricia Stewart's petition to the Governor is currently under consideration," a department spokeswoman said on Friday.

"It would be inappropriate for the Department of Communities and Justice to comment."

This week, the new Labor government's Minister for Better Regulation and Fair Trading, Anoulack Chanthivong, wrote to Mrs Stewart informing her that her request for a review of her ex-gratia payment application was on hold.

"I note the review being undertaken by the Department of Communities and Justice into the criminal conviction and related matters is ongoing," Mr Chanthivong said.

"Fair Trading has advised that until this review process is complete, and the outcome of that process is known, there is no more that can be done to further review the Act of Grace application."

Mrs Stewart has always maintained her innocence, but an appeal to the District Court to have her conviction overturned in 2010 and an application to the NSW Civil and Administrative Tribunal to have her real estate licence reinstated were both unsuccessful.

She made no progress in attempts to clear her name until last year when Newcastle-based real estate compliance expert George Rousos, the founder of Industry Training Consultants (ITC), agreed to take up the cause.

Mr Rousos, whose Maryville firm is a registered training organisation for the property sector, had for years been using Mrs Stewart as an example in real estate training courses of what not to do.

"I was telling everyone in the classes what Trish had done," Mr Rousos said. "I thought the worst of Trish until I found out the actual story last year and then I felt I had to do the honourable thing and try to help her. No-one should have gone through what this woman has gone through."

After spending weeks researching the case and reviewing the files, Mr Rousos is convinced Mrs Stewart has been a victim of a miscarriage of justice at the hands of NSW Fair Trading.

"Trish is a very generous person and I believe she has been taken advantage of," Mr Rousos said.

"She was also severely let down by a number of government officers when she pleaded for her evidence to be reviewed several times. She just wasn't afforded procedural fairness."

In January, Mrs Stewart applied to have her conviction quashed as a miscarriage of justice and has lodged a victim impact statement seeking compensation from the government.

Mrs Stewart described the long-running ordeal as an "absolute nightmare".

"They all just blatantly ignored the evidence," she alleges. "It absolutely ruined my career and caused my family a huge amount of distress and pain."

According to Mr Rousos, there was a crucial piece of evidence missed in Mrs Stewart's criminal case.

He believes a "disconnect" between Fair Trading's investigation and the police was responsible for Mrs Stewart being "wrongly convicted".

"She wasn't acting as a real estate agent at the time she accepted the payment, rather a consultant, and therefore she was not bound by the Property and Stock Agents Act," he said.

"She was carrying out her functions as an individual, not an agent. From where I'm sitting she never should have been charged in the first place."

Real estate agents must follow a host of rules and regulations during property sales, including holding clients' funds in a trust account.

"Trish never had a trust account, it's as simple as that," Mr Rousos said.

"She was convicted of obtaining money by deception during a property sale, but she wasn't acting as a real estate agent in a property sale, she was merely paid as a consultant to refer a buyer."

The ordeal began in 2007 when Mrs Stewart was running Coldwell Banker Greater Properties in Newcastle, and she was approached by a woman she knew to sell the Heritage Wedding and Function Centre.

An agency agreement was signed between the parties, stipulating a fee of $39,500, plus GST, to sell the Heatherbrae property.

The agreement eventually expired without a sale after numerous offers were rejected.

According to Mrs Stewart, the parties then agreed to vary their commercial agreement so Mrs Stewart would be paid a reduced consultancy fee of $35,000 for introducing a buyer to the owner.

According to Mr Rousos, it was very clear that Mrs Stewart was no longer acting as a real estate agent, bound by the Property and Stock Agents Act.

"Trish was initially appointed to sell the wedding centre, but then the relationship changed," Mr Rousos said.

"It totally changed so there was no agency agreement. The arrangement was Trish would be paid a consultancy fee for referring a buyer. Trish was not acting in a real estate agent's role, so the fee she accepted did not have to be deposited into a trust account. She didn't even have a trust account."

Despite pleading not guilty in 2009, Mrs Stewart was convicted after a hearing in Newcastle Local Court.

The court ruled a client paid her $35,000 in 2007 to sell the The Heritage Wedding Centre at Heatherbrae, but Mrs Stewart never sold the property and refused to refund the money.

During sentencing, Magistrate Sharon Holdsworth said she considered a prison sentence because of the large amount of money involved, but decided instead to sentence Mrs Stewart to 500 hours' community service, the maximum number of hours a person can receive.

Mrs Stewart was also ordered to pay the Office of Fair Trading $35,000 compensation.

"I'm satisfied that there is a betrayal of trust," Magistrate Holdsworth said at the time.

The case was widely reported in the media, including several times in the Newcastle Herald.

Subsequently, Mrs Stewart's real estate licence was cancelled by the NSW Department of Fair Trading and she was banned from working in the industry for 10 years.

At the time she was 53 years old, and had worked in real estate for 17 years.

The NSW Real Estate Institute (REINSW), which Mrs Stewart was a member of at the time, then issued a statewide directive informing the industry she was unlicensed and banned from working in sales.

Her now husband Wayne Stewart, who was the president of the REINSW at the time, authored the directive.

Mr Rousos, who has been attempting unsuccessfully to get a copy of the letter from REINSW to assist Mrs Stewart's ex-gratia application, said he could not understand why the professional body refused to cooperate.

He said if a miscarriage of justice had taken place, REINSW should want to assist its members.

"She was a member of the Real Estate Institute at the time and this is a crucial piece of evidence needed in her case," he said.

"This whole ordeal prevented her earning an income, it prevented her progressing in the world.

"She lost assets, she lost friends, she lost everything and from my review of the case she did nothing wrong."

According to an email to Mr Rousos from December last year, REINSW chief executive Tim McKibbin has refused to provide a copy of the letter due to legal concerns.

"As I have explained to Trish, your activities on behalf of Trish potentially pose a legal, and consequently an adverse commercial outcome for REINSW," Mr McKibbin wrote.

"Accordingly, I do not believe it is in REINSW's best interests to provide Trish with assistance in that endeavour. My position remains the same, I will provide the document in question if compelled to do so by a court of competent jurisdiction to do so."

Mr McKibbin declined to comment this week.

"Given this matter has potential legal consequence, the REINSW can't comment at this time," he said.

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