Buyers' agency boss Jack Henderson laughs off regulators' warning, boasting gag clauses "still included" in Henderson Advocacy agency agreements

The head of buyers' agency Henderson Advocacy promotes his "speedy trajectory to success" as one of the reasons people should use his firm to purchase real estate.

But the 26-year-old's story also raises repeated questions for regulators.

After being expelled from high school and spending several years working in construction, Mr Henderson used a loophole to gain his Class 1 real estate licence, and with it the ability to become a licensee, without the two years' of experience needed to earn it under current NSW Fair Trading requirements.

In March, the Newcastle Herald reported that Mr Henderson and his business partner Newcastle real estate agent Mark Kentwell were the subject of "active enquiries" by NSW Fair Trading.

The state's property services watchdog confirmed last week, three months later, it was still looking into the links between PRD Presence Newcastle director Mr Kentwell and Henderson Advocacy, after one of Mr Kentwell's corporate entities took a half share in the buyer's agency last year.

Agents in NSW are not permitted to act for the buyer and seller of a property at the same time, or to profit from both sides of a sale.

Mr Kentwell has denied any wrongdoing, saying he does not work for Henderson Advocacy, has not profited from a 50 per cent stake in the business that is linked to him and PRD made "adequate disclosures" about the business relationship to clients.

Also in March, the national consumer watchdog warned about the dangers of broad non-disparagement clauses, like the one used in Henderson Advocacy agency agreements. Describing it as an "unfair gag clause", one Henderson Advocacy client told the Newcastle Herald the clause effectively left him with "no voice".

In response, an Australian Competition and Consumer Commission spokeswoman warned that broad non-disparagement clauses like the one used by Henderson Advocacy, which prevent or limit customers from making public comments about goods or services, risk being considered unfair contract terms. She said unfair contract terms cause imbalance in rights and obligations.

"Under the Australian Consumer Law, businesses cannot seek to rely on unfair contract terms in their standard form agreements," she said.

"Businesses should not take actions that would prevent consumers from seeing genuine, relevant and lawful reviews by their customers."

At the time, the ACCC spokeswoman said if consumers believed that a real estate agent was seeking to impose or enforce an unfair contract term, they should raise the issue with the business first.

If it is not resolved, they should contact NSW Fair Trading and report the matter to the ACCC.

But three months later, with no action taken by authorities, it appears the warning hasn't deterred Mr Henderson. Rather than remove the non-disparagement clause from Henderson Advocacy agency agreements, Henderson took to social media earlier this month boasting about the continued use of gag clauses.

In a Facebook post detailing sales in Newcastle, Sydney, Queensland and South Australia, Mr Henderson thumbed his nose at the regulators' concern.

"Love seeing Henderson Advocacy expanding into new markets and the whole team continuing to grow," he wrote. "Gag clauses still included."

Former Henderson Advocacy employee, turned Sydney-based real estate agent, Aaron Downie responded to the post with three crying laughing emojis, to which Mr Henderson responded with another crying laughing emoji.

When asked about the taunting, a spokesman for NSW Fair Trading wasn't laughing.

The spokesman said the regulator's investigation into Henderson Advocacy was ongoing.

"Non-disparagement clauses in standard form contracts are of concern to NSW Fair Trading, particularly to the extent that they may be unjust and otherwise may affect the availability to consumers of accurate and balanced reviews about a given service," he said.

"These clauses may also be of particular concern in agency contracts given that agents are subject to conduct rules under the Property and Stock Agents Act."

He said Fair Trading takes all complaints and risks to consumers seriously, adding the watchdog had a responsibility to be "thorough with investigations and fair and responsive to all parties".

Late last year, the ACCC took action against Sydney building firm Fowler Homes for enforcing unfair non-disparagement clauses in contracts. Fowler Homes agreed to quit using contracts which stopped clients from publishing negative reviews or feedback.

Since 2019, more than 430 clients signed contracts containing the non-disparagement clause, which covered any attempt to complain online or on a social media platform. The contract stipulated that any customers wanting to speak out about Fowler must first get permission from the builder. The clause also required clients to indemnify Fowler Homes against any losses suffered from enforcing those terms.