Can a Queensland Real Estate Agent Charge More Than the Quoted Commission Rate?

A seller signs the Form 6, the property sells for $150,000 above the price guide, and then — at settlement — the invoice arrives for a commission figure that doesn’t match what was discussed at the kitchen table. It happens. The question agents and sellers both need answered precisely is this: can a Queensland real estate agent legally charge more than the commission rate quoted in the appointment?

The short answer is no — not without a fresh written agreement. But the longer answer is where the practical complexity lies, and where both agents and their clients frequently come unstuck.

How Queensland Commission Works: No Cap, But Strict Contractual Limits

There is no standard rate of commission in Queensland. Maximum commission rates for residential real estate were deregulated in 2014. That change came with the introduction of the Property Occupations Act 2014 (Qld) (the POA), which replaced the old Property Agents and Motor Dealers Act 2000 (PAMDA). One of the key reforms was removing the cap on commission entirely, allowing agents to negotiate any rate with their clients and creating a more competitive marketplace.

There is no government cap on real estate commission in Queensland. The commission rate is negotiable and must be agreed in writing before the agent starts work. That means the rate is set — and binding — at the point the Form 6 is signed. Once both parties have executed that document, the rate documented in it is the rate the agent is entitled to claim.

This creates a crucial distinction that every agent needs to understand: deregulation gave agents the freedom to negotiate any rate they choose, but it did not give them the freedom to deviate from whatever rate was agreed. The absence of a government-imposed ceiling does not create any flexibility to exceed the contracted figure after the fact.

Queensland’s framework is designed to protect both sellers and agents by making commissions transparent, negotiable and clearly documented. The mechanism that makes this work in practice is the Form 6.

The Form 6 Is the Ceiling — and the Floor

Queensland agents must be formally appointed in writing before they are entitled to sell a property or charge commission. This is done using the prescribed Appointment of Property Agent (Form 6) under the Property Occupations Act 2014 (Qld).

A Form 6 is a contract that authorises a real estate agent to act on behalf of a property owner in the sale of property in Queensland. It must be completed correctly, as it details the terms on which the agent is appointed, including the scope of the agent’s authority, the commission rates, and the duration of the appointment.

The commission rate specified in that document is not a starting point for negotiation at settlement — it is the agreed contractual entitlement. Section 90 of the POA directly addresses this. The Act contains explicit provisions restricting recovery of reward or expense above the amount allowed, and requires that excess commission be repaid. In plain terms: if an agent collects more than the amount documented in the valid Form 6, the excess must be returned.

In accordance with the POA, agents must express the commission payable. Agents must specify a commission amount that is GST inclusive and specify when commission is payable. Referring to a standard “REIQ” or “prescribed” commission when speaking to clients can constitute misleading and deceptive conduct. That warning from the REIQ cuts both ways: an agent cannot inflate the amount at settlement by pointing to industry norms any more than they can use a fictional standard rate to justify a higher figure during the listing conversation.

What Must Be Specified in the Commission Clause

A valid Form 6 is essential for commission to be payable, and the form must clearly set out the commission amount and when it is payable. If percentage-based, it must be calculated on the actual sale price, not an estimate.

Commission is commonly expressed as a percentage of the sale price (sometimes tiered) or a fixed dollar amount. The Form 6 should clearly state the rate and specify whether GST is included or excluded. The average Queensland commission is around 2.45% (plus 10% GST if not already included). Many agents still quote the classic “5% of the first $18,000, then 2.5% of the balance” structure. Both formats are entirely lawful — what matters is that they are unambiguous and documented before the agent performs any work.

If the Form 6 states a percentage and that percentage is applied to the actual sale price at settlement, the resulting dollar figure is what the agent is entitled to — even if the property sells significantly above expectations. That outcome is not “charging more than quoted.” It is the agreed formula operating exactly as intended.

The Critical Distinction: Rate vs. Outcome

This is the point where confusion most commonly arises. A seller who was quoted “2.5%” and then receives an invoice for $18,750 on a $750,000 sale has not been overcharged — they have received exactly what was agreed. The dollar amount surprised them because the sale price exceeded their expectations, but the rate applied is precisely what was signed.

Under section 88 of the POA, a property agent who performs a service of selling property must not claim commission worked out on an amount more than the actual sale price of the property. The provision operates as a ceiling: commission must be calculated on the real sale price. It cannot be inflated by applying the rate to a higher hypothetical figure, but there is nothing in the legislation that prevents a percentage-based commission from producing a large dollar figure when the sale price is strong.

Where an agent genuinely exceeds the agreed rate — for example, claiming 3.0% when the Form 6 documents 2.5% — the position is clear. The maximum penalty under the Act is 200 penalty units for collecting commission in excess of what is permitted. Beyond the penalty, the overpayment itself must be refunded. There is no grey area.

Tiered Structures and What They Mean

Some agents use tiered commission structures — a lower percentage on the base sale price and a higher rate (or a flat bonus) on any amount above an agreed threshold. These are entirely permissible provided the structure is fully documented in the Form 6 before the agent begins work.

A common example: 2.0% on the first $600,000 of sale price, then 10% of every dollar above $600,000 as an incentive to exceed the price guide. This structure is explicitly agreed to by the seller at appointment. When the agent achieves $650,000 and claims the bonus on the additional $50,000, they are not charging more than quoted — they are claiming exactly what was agreed and what the seller’s signature authorised.

The Form 6 should spell out the commission rate, state whether GST is included or excluded, and clearly identify any tiers or thresholds in the calculation. Any tiered structure that is not specified in the signed Form 6 prior to commencing work cannot be enforced. An agent who verbally discusses a tiered arrangement but fails to document it in the appointment document cannot later claim the higher tier.

When a Seller Agrees to a Higher Rate After the Fact

There is one path by which a commission rate can legitimately change after the initial appointment: a fresh written variation, executed by both parties before the services relating to the higher rate are performed.

The POA does not prohibit parties from varying their agreement. What it prohibits is an agent claiming more than is documented in a valid appointment. If the seller agrees in writing — using a reappointment or a formal variation — to a revised commission structure, and that document is properly signed, the new rate governs what can be claimed.

The simplest way to avoid commission disputes is to negotiate clearly up front and capture those terms precisely in the Form 6. The same principle applies to any subsequent variation. Verbal promises, email exchanges that don’t meet the formal requirements of an appointment, or handshake agreements made after a sale is negotiated will not override the signed Form 6. The POA’s requirements for a valid appointment are mandatory, not optional.

The term of a sole or exclusive agency appointment can be negotiated between the parties, up to a maximum of 90 days. The parties can extend an exclusive or sole agency beyond 90 days, but can only do so in the last 14 days of the agreement. Any reappointment or variation must comply with the same formal requirements as the original document.

The Consumer Law Overlay

The POA governs the appointment and the entitlement to commission. But layered across it is the Australian Consumer Law (ACL), which governs the conduct of agents in their dealings with clients — including how commissions are represented, discussed, and documented.

Agents must not engage in misleading or deceptive conduct. This includes statements about likely sale price ranges, fee structures, rebates, “free” marketing, or what the commission covers. The prohibition is found in section 18 of the ACL, and it applies to verbal representations, written material and online advertising.

An agent who quotes one rate at the listing presentation and then claims a higher rate at settlement — even while asserting the Form 6 supports it — should examine the document very carefully. If what the agent said at the listing appointment created a reasonable expectation of a specific fee and the Form 6 language is drafted in a way that allows a higher result, the seller may have a claim under the ACL for misleading conduct even if the Form 6 is technically compliant.

The appointment should spell out the commission rate, state whether GST is included or excluded, and clearly identify any tiers or thresholds in the calculation. Agents who present the rate verbally as a percentage and then produce a Form 6 that contains a tiered structure or a different basis of calculation face a real risk that the client’s consent to the document was not fully informed. This is where the ACL exposure becomes significant.

If the agent receives any rebate, discount or commission connected to marketing expenses — for example, from a portal or publisher — the appointment must disclose the amount or the method for calculating it. Failing to disclose such rebates while charging the client full marketing costs is a separate but related exposure under both the POA and the ACL.

Form Validity: The Threshold Issue Agents Miss

Before any question of rate arises, the Form 6 itself must be valid. An agent cannot claim any commission — at any rate — from a defective appointment.

Even minor omissions can invalidate the appointment. In Yong Internationals Pty Ltd v Gibbs (2011), the agent lost entitlement to commission because the form was incomplete under the “Performance of service” heading, and the Court found the agent had never been appointed.

QCAT dismissed an agent’s claim for commission in 2016 because the agent used the outdated PAMDA Form 22a instead of the POA Form 6. QCAT held that the failure to use the appropriate form required under current legislation meant the agent was not formally appointed.

The current version of the Form 6 has also evolved. The REIQ released an updated Form 6 agreement which should be used from 1 May 2024. Agents engaging clients from that date should ensure the new Form 6 Appointment Form and new Residential Sales Schedule are used. Using the incorrect form risks the appointment being invalid, which may cost the agent their commission in addition to particular rights and obligations for the parties.

An agent who has a valid Form 6 with the correct rate specified and documented has a solid foundation. An agent relying on a form with blanks, ambiguous rate language, or an outdated version may find — at QCAT or in court — that they cannot enforce any amount.

Marketing Costs Are Not Commission — But the Distinction Matters

A related area of confusion is the treatment of marketing and advertising expenses. These are separate from commission and must be separately documented in the Form 6.

It is common to agree marketing expenses separately. The appointment should itemise the marketing that has been approved, the cost, who pays, and whether those costs are payable even if the property does not sell.

An agent cannot dress up additional fee income as “marketing” when it is effectively an undisclosed commission component. If an agent promotes a “free” advertising package but then recoups those costs from the seller in another way, that can raise issues under the ACL’s prohibitions on misleading conduct and false or misleading representations.

What this means practically: if an agent quotes a 2.0% commission and then lists $3,500 in marketing separately, the total cost to the seller is not the same as a 2.5% commission on the same sale price. Sellers have every right to understand and compare the total cost. Agents have a legal obligation to make that total cost transparent and documentable.

The Effective Cause Question and Commission Entitlement

Even when the rate is correctly documented, an agent may not be entitled to claim it at all if they were not the effective cause of the sale — depending on the type of appointment.

Under an exclusive agency agreement, the agent has the right to claim the agreed commission whether or not they are the effective cause of the sale — even if the seller sells the property themselves, or it is sold through another agent. Sole agency is similar in that the agent can still claim commission if the property is sold by another agent, but the agent cannot claim commission if the property is sold by the owner. Under an open listing, only the agent who is the effective cause of sale can claim commission.

This matters in the context of commission disputes because an agent who argues entitlement to commission above what the Form 6 documents may simultaneously face an argument that they were not the effective cause of sale. The two issues are distinct, but both must be resolved against the agent’s claim before they can collect.

What This Means for Queensland Agents

The legal position is unambiguous: a Queensland real estate agent cannot charge more than the commission rate documented in a valid Form 6. That rule operates regardless of how hard the campaign was, how much the property sold for, or what was discussed verbally at the listing presentation. The Form 6 is the contract. The contract governs.

In practice, there are several points agents and principals should build into their standard process:

• Document every component of the commission structure before commencing work. If the rate is tiered, every tier and threshold must appear in the Form 6. If a bonus structure applies above a price target, it must be written in.

• GST must be addressed explicitly. The Form 6 must specify whether the stated commission rate is GST-inclusive or exclusive. A client who signs a Form 6 showing “2.5%” and then receives an invoice for “2.5% plus GST” has been presented with a different number than what they understood they were agreeing to, which creates both a dispute and a potential ACL exposure.

• Use the current Form 6. The updated REIQ Form 6, applicable from 1 May 2024, should be used for all new appointments. Using the wrong version can void the entire appointment.

• Do not rely on verbal agreements. A seller who agrees verbally to increase the rate after a strong campaign cannot be invoiced on that basis. The variation must be executed in writing before services under the new rate are rendered.

• Understand the “excess commission” provisions. Sections 90 and 91 of the POA make clear that collecting excess commission is not a minor administrative issue — it is a civil and potentially criminal matter with real consequences.

For agents who consistently document their commission structures clearly and accurately in the Form 6 before commencing work, this area of the law creates no practical difficulty. The risk only materialises when agents cut corners on paperwork, rely on habit or verbal discussions, or attempt to claim amounts that the written appointment does not support.

Small mistakes with paperwork, disputes over who was the “effective cause” of sale, or complications with multiple agents and contract terminations can all put commission at risk. The same discipline that protects commission entitlement also protects against the accusation that an agent has attempted to charge more than agreed.

The cleanest version of this conversation is the one that never needs to happen because the Form 6 was right the first time.